This case deals, not elegantly, with the issue of retroactivity.

Lopez sued Continental Tire for personal injury. The accident had happened on the job and  the Fund had paid workers compensation benefits. It moved to intervene in the case. Continental opposed the intervention and the trial court denied it; the Court of Appeals took the Fund’s special action and reversed, of which this is the opinion.

In 2007 a workers’ comp statute was amended to allow the Fund to intervene in a worker’s action. Continental argued that it couldn’t be applied retroactively – the accident happened in 2004 and the case was filed in 2006.

The Court of Appeals first held that this was not a retroactive application. Why not? Because procedural rules do not affect vested rights.

The court next held, in the alternative, that retroactive application is okay here. Why? Because the statute is procedural and procedural statutes can apply retroactively.

So, the court held that procedural statutes do not apply retroactively and that procedural statutes apply retroactively and that therefore this statute did not apply retroactively unless it did, and its all good. Got that?

The problem is that the court thought it was dealing with two different issues when it was dealing with two sides of the same coin. It overlooked the fact that the authorities cited in the first part of the opinion say in essence largely the same thing as those cited in the second part. Retroactivity involves taking away rights already given and vested. Procedural statutes don’t do that. That’s why they are not covered by the anti-retroactivity rule (a substantive statute is not retroactive unless it specifically says it is): their effect is not “retroactive” in the sense that a substantive statute’s is, whether or not applied to earlier facts. If you have substance, you have a retroactivity problem; if you have procedure, you don’t because you don’t have retroactivity.

(link to opinion)

LATER NOTE: THE ARIZONA SUPREME COURT VACATED THIS OPINION

This court may have assumed too much about “assume.”

Braden was a disabled adult. The DES had placed him in a private nursing home with which it contracted to provide care for its clients. When he died in an accident at the home, his estate sued the State under the Adult Protective Services Act. Under 46-455B a vulnerable adult can sue for injury a person or entity employed to, appointed to, or having assumed a legal duty to provide care for him. The trial court granted the State summary judgment; this opinion reverses.

The State argued that the nursing home, not it, provided the care and was the proper defendant. But the nursing home’s care of Braden was monitored and regulated by the State through a care plan, a case manager, and the usual sort of handicapped/incapacitated child/adult regulations. The court held that this amounted to providing care.

The State next argued that it had not “assumed a legal duty” to provide the care because an assumption must be voluntary and it had not volunteered. The court held that the statute did not require a voluntary assumption and that the common meaning of “assume” did not necessarily require voluntariness. The latter conclusion was based on dictionary definitions of “assume” – all of which involve voluntary acts.

The dissent argued, based on detailed and extensive legislative history, that the State did not mean to assume the duty. This may not be a bad argument, though the majority is surely correct to prefer that the words of statutes mean what they say rather than what convoluted gloss and accretion might suggest. The core of the problem is the dissent’s understandable discomfort with the notion of a mandatory “assumption.” It is possible to “assume” a duty inadvertently but to do so other than by voluntary act gives a  new meaning to the word, one not even the majority was able to find in any dictionary. (And the whole “voluntariness” argument seems odd. Didn’t the State itself pass the statute? Didn’t the State create the regulations and bureaucracy? Hasn’t this court necessarily concluded that the legislature intended that those regs and bureaucrats “provide care?” Can you argue that something you did was involuntarily because you forced yourself to do it?)

In any event, the State also argued that the Act made the State immune. 46-455J requires that a Plaintiff give the state notice of the claim but says that this does not authorize naming the State as a party. The court held that the statute simply means what it says – that giving notice to the State does not itself authorizing suing it – and that an action against the State can be brought if there is an independent legal basis for it.

Finally, the State threw up half a dozen or more policy reasons why the statute shouldn’t apply to it, apparently hoping that at least one of them would stick; none did.

(link to opinion)

A 48-page opinion about . . . well, the court calls it “sewage sludge.”

This is a long civil opinion and so we write this just to assure you, if you noticed the case, that no, we didn’t miss it and no, there’s nothing interesting in  it. The County filed an every-issue-you-can-think-of appeal after filing every motion it could think of before, during, and after losing a contract case at trial. The Court of Appeals humored it by addressing them all at length before affirming. The opinion mostly concerns factual details of a contract for the processing of the aforementioned. The issues of law are no-brainers except that the RAJI instruction on waiver isn’t good – it can, as the County argued, let a jury think that a waiver can be accidental; with everything else going against the County, though, this issue got short shrift. That’s what happens when you throw the kitchen sink into your briefs.

Why is the opinion 48 pages long? Well, the whole case was similarly overblown; for example, the opinion at one point mentions “Exhibit 656.” We haven’t seen the briefs but we’d be willing to risk a modest wager that at least one of them was approximately nine million pages long. Courts sometimes seem to feel that unless they produce a huge opinion somebody will think they haven’t read the huge briefs. And courts, like clients, can mistake lengthy and heavy briefs for lengthy and heavy legal thinking. Finally, a government was involved here; as we’ve mentioned before, courts will do things for governments that they won’t do for you and me, even if that simply means considering at length arguments that may not really merit it or, for that matter, be worth what Yakima was processing.

(These lawyers must have made a ton but maybe they earned it; Parker’s not a bad spot at the right time of year, and the courthouse is a pleasant little complex, but there’s nowhere as near as Blythe that we’d want to stay at long enough to try this case. The BlueWater Resort, you say? Have you tried to eat its buffet?)

(link to opinion)