This mental-health opinion concerns an alleged conflict between statute and court rule. It comes to the right result but we’re not sure how.

This is an appeal from an involuntary commitment order. The statutes require that two physicians examine the patient before commitment; in this case one had done so in person, the other by “telemedicine.” The Supreme Court had already ruled that that isn’t good enough so in this case the state came up with a new argument: the statutes are unconstitutional because they conflict with Rules 702 and 703 governing the admission of expert testimony. This opinion holds the statues constitutional.

The opinion correctly cites Seisinger v. Siebel as the controlling precedent. Under Seisinger, if a statute and a court rule conflict then the statute prevails if the matter is substantive, the rule if it’s procedural. It’s a two-step analysis: 1) is there a conflict; if so, 2) is it substance or procedure.

But “In this case, the analyses concerning whether the statutes and rules conflict and whether the statutes are procedural or substantive are interconnected.” Why? It’s hard to know if the opinion thinks it explains that. In any event, the opinion goes on to conclude that 1) the statute and rule do not conflict and 2) the statutes establish a substantive burden of proof, as Seisigner permits. “Therefore [the statutes] . . .  are constitutional.”

The problem is that this misses Seisinger’s basic point, which is that the legislature can make procedural rules: “the legislature and this Court both have rulemaking power.” If statute and rule do not conflict then whether the issue is substantive or procedural doesn’t matter. It is reasonable to say “they don’t conflict and even if they did it’s substantive” but that isn’t what this opinion says. It says that the statue is constitutional because it doesn’t conflict and it’s substantive. The permutations of that formulation are incoherent.

(link to opinion)

We may have to stop blaming the government for these notice-of-claim cases. They used to arise because its lawyers were trying to create overly exacting standards for them. Now that the law is fairly well established we seem to be seeing a shift to cases in which the claimant  blew it. 

Mrs. Thompson ran off the road, overcorrected, and flipped over. The Thompsons sued Pima County, claiming that potholes contributed to the accident. The County moved for summary judgment because they hadn’t filed their notice of claim within the required 180 days. The Thompsons contended (“as we understand their argument,” the court says, always a bad sign; and the recitation of facts having already told us that Thompson ran off the road because she was eating a granola bar, you know where this is headed) that the period for filing a notice doesn’t start until the claimant has facts sufficient to make it. They said that that wasn’t until they got a report from their expert – even though both a deputy sheriff and the accident report had told them within a few days that the road may have had something to do with it and even though Mr. Thompson had suspected that based on his own examination. The trial court granted the motion; the Court of Appeals affirmed.

Accrual of the cause of action and facts sufficient to support the notice “are distinct concepts.” Accrual comes “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage,” § 12-821.01(B).  “Facts sufficient”  is from a different paragraph, § 12-821.01(A): the notice must contain “facts sufficient to permit the public entity or the public employee to understand the basis upon which liability is claimed.” That there is 180 days between them emphasizes that they are different things. The discovery rule is built into the statute but in this case there was no question of fact that the Thompsons had plenty of knowledge to file a notice within the 180 days.

(link to opinion)