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Yanes v. Maricopa County (CA1 11/8/12)

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The court holds that a violation of substantive due process dues not support a §1983 claim. Or maybe it does.

Yanes was punched by a jail guard. The guard said that Yanes attacked him and so the county charged Yanes with aggravated assault. But the county dismissed that and Yanes then sued for various torts and a §1983 claim. He won at trial. The county appealed; this opinion covers the 1983 claim, a memo handles the rest.

§1983 creates a mechanism of recovery for an actionable constitutional violation. The question was what violation supported the claim. Yanes argued substantive due process: falsely accusing him of assault violated his right to be free from prosecution without probable cause. Based on the 1993 (the opinion says 1994 but who’s counting?) U.S. Supreme Court Albright case, the Court of Appeals holds that although violation of procedural due process at trial can support a §1983 claim, violation of substantive due process can’t.

Except that under “different factual situations” it might. What factual situations? Quoting from Albright:  “There may indeed be exceptional cases where some quantum of harm occurs in the interim period after groundless criminal charges are filed but before any Fourth Amendment seizure.” But that’s not what happened here.

Why include as dicta idle, speculative dicta by a single Justice (Souter) buried in more dicta (a concurring opinion)? Well, we just pointed out the other day that courts love to rule on things not before them. And so they let one federal judge, in an opinion that didn’t itself decide anything, dictate how federal law will likely be applied in Arizona (at least until a majority of the U.S. Supreme Court – the part, in other words, that can actually make binding rulings – does so on this subject).

The court sets aside the §1983 award, including the punitive damages that went with it (awarded thanks to an opinion we weren’t entirely complimentary to awhile back).

(link to opinion)

Para v. Anderson (CA1 11/1/12)

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The court says this is a case of first impression but this sort of maneuver has been tried more than once before. Lawyers are like that – full of brilliant, new ideas that aren’t either.

Plaintiff sued two doctors for malpractice. He settled with one. The other, Para, promptly named the settling doctor as a non-party at fault, scheduled the deposition of the expert Plaintiff had disclosed against the settlor, and indicated his intention to use that disclosure. In response, Plaintiff announced that he was re-designating that expert as a consultant and he moved for protective order against the deposition. The trial court granted it. The Court of Appeals accepted Para’s special action and reverses.

It doesn’t take the court much time or analysis to conclude that “a party may not reinstate the privileges and discovery protections that apply to consulting experts by redesignating an expert as a consultant once the expert’s opinions have been disclosed.” “Once the party chooses to disclose the expert’s information and opinions, a mere change of label cannot erase the effect of the disclosure.”

But the court also says that “while the opposing party may depose such an expert, the trial judge retains broad discretion under Ariz. R. Evid. 403 to regulate the use of that expert’s testimony at trial.” That’s all it says about that; it doesn’t say what sort of circumstances it has in mind or how the testimony might be “regulated.” Maybe the idea is that the trial court can exclude the fact that the Plaintiff’s lawyer was the one who selected the expert and elicited the opinion. Its typical of our courts to try to tidy up things in advance by throwing out broad hints about issues that are obvious but not before them.

(link to opinion)

Gorman v. Pima County (CA2 10/4/12)

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A cautionary tale on working with government, though this one may actually allow an estoppel.

Gorman wanted Pima County to build a park for bicyclists. The County was receptive; over a few years there was a lot of communication back and forth and the County did some studies, issued a building permit, and amended an intergovernmental agreement to allow the park. Gorman, at the County’s request, spent money it aid of some of that. Then the neighbor’s complained and the County shut down the project. Gorman sued for damages – apparently her out-of-pocket, time spent on the project, etc. She sued for breach of contract and estoppel. The trial court dismissed her Complaint; she appealed.

On the breach of contract allegation, the Court of Appeals affirms. The problem is that there never was a written contract. Gorman relied principally on a letter signed by the County Administrator. Pima County argued that he had no authority to enter into such a contract. Gorman argued that the Pima County Code have him authority to sign grant applications and that her spending money out of her own pocket was a grant. But the Pima County Board of Supervisors had adopted a policy saying that it had to approve all grants. The court holds that this policy is consistent with the Code and is entitled to the force of law.

Gorman also claimed equitable estoppel. The court points out that she should have claimed promissory estoppel (i.e., a promise to do something in the future), that equitable estoppel (misrepresentation of present or past facts) is a defense, but says in a footnote that it doesn’t’ matter since she had alleged the necessary elements – though they’re the same, only the facts differ.

Its hard to establish an estoppel against government. You need not only a writing but, the court tells us, a “degree of formality.” It decides that whether that existed here – what with all the formal-looking things the County did (building permit, amendment to agreement) – is a question of fact, so the court reverses on the estoppel issue.

The County points out that this could lead to a lot of other estoppels. For governments this is a bad thing, since they are accustomed to being able to change their minds at a whim. On the other hand, the court tells us that “we have carefully considered the potential impact” of this decision – but it doesn’t otherwise discuss the matter. “The circumstances here are unlikely to recur,” it says, for reasons it doesn’t explain. And, anyway, “equity favors our resolution.” Pedants could argue that that doesn’t actually, really, technically, necessarily mean that Gorman should win her case – but what is the trial judge going to make of it? Talk about putting your thumb on the scale.

(link to opinion)