Morgan and Neff v. Superior Court (D2 7.20.21)

Local newspaper reporters in Cochise County sought the names of jurors who recently served on two criminal trials. They enlist the support of a clinical professor and two law students to represent them. They argue the innominate jury system violates the First Amendment and Arizona law. Trial court denied their request for juror identity, and they file a special action. Jurisdiction is accepted, but relief is denied.

It is unclear what Arizona law the reporters rely upon. The court begins by citing Arizona statutes and rules protecting juror information. None support the reporters. The court then addresses the First Amendment. The reporters argue past historical practice in Cochise County of allowing access and this experience demonstrates a First Amendment right of access. The court rejects this concluding that a historical experience test does not look at the particular practice of one jurisdiction but the experience throughout the United States. The court finds a split of authority on this point, and distinguishes case law discussing the right of access with other aspects of the jury system including public trial and the voir dire process. The court stresses the potential harm in mandating the disclosure of juror names including subjecting jurors to public unwanted media attention, harassment, embarrassment, or danger. Such disclosure would also elevate fair-trial concerns for defendants in high-profile cases. “The danger of jurors being exposed to information or questions about the case, concerns about their safety or reputation as a result of their vote, and violations of their privacy may create violations of due process.” The court points in the right direction. Protecting jurors’ privacy and the rights of an accused to a fair trial ranks higher than newspaper reporters selling information.

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Mesnard v. Campagnolo (6.2.21)

Don Shooter was expelled from Arizona’s House of Representatives after being accused of sexually harassing another member Ugenti-Rita. Before he was expelled there was an investigation of both Shooter and Ugenti-Rita. Shooter believed the Speaker of House J.D. Mesnard removed information from the investigation report that exculpated him and inculpated Ugenti-Rita.

Shooter fired off a letter to other members of the House, and Mesnard responded with a news release. Shooter sued Mesnard claiming he was defamed. Mesnard filed a motion to dismiss and pulled out his Arizona constitutional legislative immunity card (art. 4, pt. 2 § 7 (“No member of the Legislature shall be liable in any civil or criminal prosecution for words spoken in debate.”). (Readers may recall a couple of years ago Mesnard was critical of another representative who pulled out a different legislative immunity card after being stopped for speeding – art. 4, pt. 2 § 6.)

The Arizona Supreme Court agrees Mesnard is entitled to immunity for the preparation and release of the report (legislative function), but because the press release was outside that process, it may be actionable. The line is fuzzy. Justice Bolick concurs with the result but believes this case should be decided under separation of powers. Courts should stay out of the legislature and its processes involved in expelling its own. This is a political not a legal issue and should not be resolved by the fuzziness of defining what is and is not protected by legislative immunity. It is beyond the judicial power, writes Justice Bolick, to second-guess the legislature’s methods and actions. “The remedy for abuse of such constitutionally assigned powers is political, not legal.” What if the legislature ordered the dispute resolved at 20 paces?

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Matthews v. City of Tucson (D2 7.9.21)

Workmen’s compensation law plays in its own field and is normally not the subject of our review, but this one raises an interesting issue. Timothy Matthews worked as a police officer for the City of Tucson Police Department for 18 years. In 2018 he responded to a domestic violence call of a barricaded man. He was stationed a block away at a command post and watched this all transpire from a live video camera. The barricaded man shot himself and crawled out of the garage and died. Matthews was assigned to inspect the body and photograph the scene.

A few months later he filed a workmen’s compensation claim based on a diagnosis of PTSD. Under workmen’s compensation statutes, an employee can recover for emotional distress only when an event is considered unexpected, unusual or extraordinary. As discussed earlier this year by the Arizona Supreme Court, this standard is considered from the standpoint of a reasonable employee with the same or similar job duties and training rather than the individual employee’s subjective reaction to an event. The ALJ determined this incident was not an unexpected, unusual or extraordinary event for a law enforcement officer.

The interesting part is the challenge to the mental injury statute itself. Matthews argued the statute violates Arizona Constitution Art. 18 Sec. 8 states in part: “[I]f in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof . .” Pretty broad. Matthews further argued the mental injury statute injects an assumption of the risk defense by requiring an event to be unusual, unexpected, or extraordinary because it allows his employer to argue he knew the job was dangerous when he became a police officer. The court rejects this concluding, in part, the Arizona Constitution requires the injury be an “accident” and the legislature properly defined what that means for mental health injuries. But you must read the dissent. Judge Eckerstrom writes if a mental injury is caused by a risk or danger of employment, it should be compensated if those injuries are directly caused by a known or expected hazards of employment. The Arizona Supreme has avoided this exact question in the past, and another opportunity has just been handed to it.

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