This is a tort claim for wrongful institution of civil proceedings against the State Department of Child Safety. The case was decided on a motion to dismiss. The underlying custody dispute involved two children and the juvenile and family courts. DCS removed the children after each accused the other of wrongdoing. The dad absconded with the kids, and DCS tracked them down in Florida. The children were brought back. Eventually, after new information came to light, the juvenile court dismissed the dependency case against mom and returned the children to their mother. Feeling vindicated, mom then filed a lawsuit against DCS. Not so fast. The initial judgment of dependency established probable cause. Unless mom had facts showing the adjudication was procured by fraud, perjury, or other corrupt means, the claim failed. Mom alleged omissions are not enough. “Probable cause does not require DCS to disclose every fact that might undermine its position or to present a perfectly balanced narrative; it requires only an honest and objectively reasonable belief that removal and dependency can be established.”

Justice Montgomery and Justice Bolick disagreed. Montgomery would have the trial court not decide this on a motion to dismiss, but rather wait for a motion for summary judgment after the parties have gathered their evidence. He questioned the adequacy of DCS’s investigation after they were picked up in Florida. Justice Bolick believed the DCS worker’s report to the court was misleading and incomplete, and that the case should move forward. He ended his dissent: “The majority knits the façade of a just result but not the reality. I believe Stephens’s claim against DCS, no matter how uphill the climb it faces, should be allowed to proceed; and, therefore, with great respect to my colleagues, I dissent.”  Justice Bolick’s dissent is an Aristotelian performative stage: logos, ethos, and pathos. But unconvincing to the majority of his colleagues.

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This is a dispute over a public records request. Division 2 held that if a public entity asserts the attorney-client or work product privilege, it should prepare a privilege log. Nothing new here. This follows the Fann v. Kemp case decided by the Arizona Supreme Court in 2022. Judicial Watch also challenged the adequacy of the search. The public entity bears the burden of showing it adequately searched for responsive records. The court of appeals found the testimony from the custodian of records explaining why the search was limited to keywords “unpersuasive.” Can an appellate court find facts persuasive or unpersuasive? We thought its role was not to substitute its judgment for that of the factfinder. And what standard of review was the court using to evaluate such evidence? Courts hold, factfinders find.

This is a special action decision that is most interesting for the dispute between the judges on the panel. The court of appeals held that a trial court should not impose a “good cause” requirement on withdrawing admissions under Rule 36. Rule 36(b) states that a court may permit withdrawal if it would promote presentation of the merits and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. Easy enough, but the trial court here required a separate showing of good cause. The defendant was three days late in responding to requests for admission; the requests went to the heart of the dispute, and the requesting party suffered no prejudice.

So, why the squabble? The squabble is over whether the panel should have accepted special action jurisdiction. Judge Jacobs wrote for the majority, and Judge Catlett wrote a lengthy dissent tracing the history of special actions, common-law writs, and the separation of powers. While the judges address each other using language “with respect” and “with great respect,” the tone is more personal, like fisticuffs. For example, Judge Jacobs corrected Judge Catlett on several points of law and pointed out other cases in which Judge Catlett wrote for a panel and took the opposite position. So Judge Catlett, in his dissent, distinguished his own prior opinions while invoking the rule of law. We are left with an unpleasant feeling that these two judges don’t like each other, the same feeling we had twenty years ago when Justice Feldman and Justice Martone used opinions as battlefields. But, in fairness, we are seeing uglier disputes within other courts. E.g., Olympus Spa v. Armstrong, 169 F.4th 817 (9th Cir. 2025). In Olympus Spa, the Ninth Circuit majority admonished Judge VanDyke’s dissent as “vulgar barroom talk.” Judge Vandyke’s dissent begins: “This is a case about swinging dicks.” The dissent goes downhill from there.

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