THIS OPINION HAS BEEN VACATED

In this wrongful-arrest case the majority and the dissent agree that the law was clear to the arresting officers and then argue back and forth, for fourteen pages each, about what the law was.

Maricopa County Sheriff’s deputies arrested Ochser on a child-support warrant that turned out, unbeknownst to the Sheriff, to have been quashed. Ochser had a copy of the minute entry quashing it but the deputies didn’t look at it; instead they basically called their office and were told that the warrant was valid. So he sued them under §1983, alleging violations of the fourth and fourteenth amendments. The trial court granted summary judgment for the deputies; the Court of Appeals affirms.

Federal authority gives officers a qualified privilege to arrest on a facially-valid warrant. Ochser argued that they had an obligation to review readily-available objective information; his “expert” witness agreed with him. Federal authority says that if the warrant is facially valid then the officers have no duty to inquire further. That could have been enough to resolve the case but the court, which seems to have been following the briefs, uses a two-step qualified-immunity analysis from a U.S. Supreme Court case that a later Supreme Court case says isn’t necessary (as this court admits in a footnote).

The first question in the analysis is whether a constitutional right has been violated. It takes the majority a page, and two footnotes, to decide that jailing someone on an invalid warrant violates his rights. Or it apparently does, as the analysis never really reaches a conclusion. The real point of it seems simply to be that the first part of the two-step test shouldn’t be confused with the second.

Which is whether the right was “clearly established” such that “a reasonable official would understand that what he is doing violates that right.” The court concludes that it was objectively reasonable for the deputies to rely on the processes of the Sheriff’s office in checking the warrant. It distinguishes on their facts various cases that found no qualified immunity.

The dissent disagrees that those cases should be distinguished and therefore concludes that the law clearly established that the officers should have looked at – and, presumably, assumed to be valid – Ochser’s minute entry. The majority responds that those cases are, too, distinguishable and that the dissent relies on cases from the First and Third Circuits, not the Ninth or the Supreme Court.

The dissent beats the majority on footnotes, if nothing else, 8-5.

(link to opinion)

As we’ve said before, people file motions like this because they know that, once in a while, one of our trial judges will actually grant one. But you do sometimes have to wonder how they talked even their own client into believing.

The Nielson’s were injured when their plane hit a power line near the St. Johns airport. They sued St. Johns, the local power company (Navopache), and the Maricopa County firm that designed the airport, filing the case in Maricopa County. Navopache moved for change of venue to Apache County, arguing that the action concerned real property (i.e., it alleged that the power poles were in the wrong places in the ground) and therefore had to be brought where the property was (12-401(12)). The trial judge granted the motion. Plaintiffs then got a stay (from Apache County) and filed special action. The Court of Appeals accepted it and reversed. (The court treats this as a special action from Maricopa County so it isn’t clear if the case ever got to Apache County or, if it didn’t, how Apache County came to enter an order in it.)

12-401(12) deals with such things as title, possession, mortgages, rents, “and all other actions concerning real property.”  Under the doctrine of ejusdem generis “all other actions” means all other actions in which real property is the subject matter or basis of the action, not in which it is peripherally involved. When there are both tort and real property claims then the property venue may take precedence (Amparano) but the subject matter of this Complaint was personal injury, not real property.

The opinion is only eight pages long but does manage to include four footnotes, so it meets the CA1 style guidelines.

(link to opinion)

This case holds that excusable neglect is not a defense to the statute of limitations.

Porter’s Phoenix-area counsel mailed her personal-injury Complaint to the Navajo County Superior Court six days before the statute of limitations ran. They didn’t put enough postage on the envelope. You can pretty much guess the rest: when the Post Office returned it the office staff just stuck the Complaint in a new envelope, put enough postage on it, and sent it back; it arrived one day late. Defendant moved for summary judgment, which Plaintiff “opposed” by moving preemptively to it aside for excusable neglect. The trial court granted Defendant’s motion and ruled that Plaintiff had not adequately shown excusable neglect.

The Court of Appeals first takes a while explaining that there are these things called “statutes of limitations” and that they’re valid statutes and that you have to obey them absent certain circumstances that the court mentions even though they weren’t argued or suggested by the facts.

Then the opinion mentions something that was, perhaps (it’s hard to tell), argued – equitable tolling. But equitable tolling is normally caused by the defendant – he lies, conceals, etc. – and there was none of that here. As the court feels the need to point out in a footnote, Division Two suggested in dicta last year that an attorney’s illness might produce equitable tolling (McCloud; don’t get us started about that case) but even then the illness must be significantly incapacitating.

The court then addresses excusable neglect. The trial judge apparently assumed that Rule 60(c)(1) can apply here. The court holds that it can’t. No authority supports its use against the statute of limitations. The Rule allows a court to use its discretion to forgive a failure to adhere to its requirements; it does not give a court discretion about enforcing a statute.

That’s why, for those who consider it their professional obligation to be offended by such things, a staff mistake in filing an Answer late can be grounds for relief but a staff mistake in filing a Complaint late can’t.

(link to opinion)