Judges are reluctant to dismiss cases against public entities for failure to comply with the notice of claim statute. There have been well over a hundred plus cases since Deer Valley. The Arizona Supreme Court hasn’t backed off. Once again, the court clarified that compliance requires a sum certain. This means there should be no need to guess or investigate. When the sum certain is ambiguous in the notice of claim, or the public entity has to figure it out, the plaintiff hasn’t complied. This particular notice stated the sum certain as “one hundred thousand dollars ($250,000).” Oops. The court of appeals relied on contract principles to determine intent and held that the number was subordinate to the words, and therefore, we should ignore the $250,000 and go with the one hundred thousand dollars. The Arizona Supreme Court vacated the court of appeals’ decision without much pause. The statute demands strict compliance not an investigation into contract principles or intent. The statute continues to be a tripwire for plaintiffs. Why do legal minds struggle with keeping it simple even when interpreting plain statutory language?

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There is a riddle of two doors, one leading to freedom and one to prison. There is one guard at each door. One guard always tells the truth, and the second guard always lies. You get to ask one question to either guard. What one question could you ask that, regardless of whether you ask the truthteller or liar, would determine which door leads to freedom?

After you figure that out, then you are well-prepared to read the Arizona Supreme Court’s decision holding that a claim for wrongful institution of civil proceedings can be based on a bar complaint. Or skip it and just realize that there is yet another reason for attorneys not to report bad conduct to the State Bar. There is more enjoyment in reading Justice Montgomery’s dissent:

The majority’s analysis demonstrates that textualism unmoored from original public meaning can produce results that conflict with a provision’s original meaning. And that is not how this Court interprets the law. Whenever the meaning of a provision is in question, it is critical to confirm the meaning at the time the provision was adopted.

And even more enjoyment comes from reading the article he cites: Lawrence Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235 (2018). It’s free online.

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link to Surprising Originalism

Two weeks ago, in the Mormon church case, the Arizona Supreme Court interpreted the clergy exception to the mandatory reporter statute. The supreme court noted that one of the many problems with the court of appeals’ decision was that the court conflated the statutory exception with the clergy-penitent privilege. Both the exception and the clergy-penitent privilege use the term confession, and the same definition applies. The clergy-penitent privilege was, however, irrelevant to the mandatory reporter exception.

This case is not about a duty to report. Here, Pastor Padron spoke with his co-pastor Rodriguez-Rameriz, his brother-in-law, and Padron recorded the conversation. Pastor Rodriguez-Rameriz acknowledged that he had abused Pastor Padron’s niece. Pastor Padron shared the recording with the victim’s family and other members. Pastor Rodriguez-Rameriz was prosecuted and sought to exclude the recording by claiming clergy-penitent privilege. The supreme court held the privilege did not apply. The conversation wasn’t a “confession,” but involved how the allegations would impact the congregation and the church, whether the victim’s family would report the abuse to law enforcement, and even whether Rodriguez-Rameriz should leave the state. Pastor Rodriguez-Rameriz was not there as a penitent seeking absolution, and Pastor Padron did not believe he was providing spiritual guidance or counseling. The privilege did not apply. We are reminded of Claudius’s rank offense: “My words fly up, my thoughts remain below. Words without thoughts never to heaven go.”