This case involves a police chase and a dramatic killing and Fox News and the First Amendment. So our real interest, of course, is the standard-of-review paragraph. But we’ll save that for the end.

A carjacker fled police for  80 miles; then he stopped, got out of the car, and, after a bit of aimless wandering in the desert, abruptly shot himself in the head. Fox News broadcast the whole thing – including the suicide,  since it wasn’t using a delay on the feed from the helicopter camera. Two boys in the community heard about it at school; after school they rushed home to watch the video on YouTube, discovering thereby that the carjacker they watched kill himself was their father.

An appropriate response to this tragedy, someone eventually decided, was a lawsuit against Fox News for negligent and intentional infliction of emotional distress. Fox News moved to dismiss on First Amendment grounds; the trial court granted dismissal; the Court of Appeals affirms.

The court first tells us, citing various U. S. Supreme Court cases, that “speech on matters of public concern” merits “special protection” whereas speech on “purely private matters” gets “less . . . protection.” The court thus frames the issue here as whether this speech was public or private. It does not explain why “less protection” would for purposes of this case mean “no protection” nor where along the presumed continuum between “public” and “purely private” one passes the boundary of tort law. However, the simple public v. private distinction was probably how Fox presented the issue.

Matters of public concern include matters of legitimate news interest. The court spends a page explaining why the chase was such a matter. Then it turns out that the plaintiff agreed; her argument was merely that the few seconds of suicide were private. But public v. private is determined by the speech’s “overall thrust and dominant theme,” not by individual snippets here or there.

Plaintiff apparently also argued that Fox News shouldn’t have a First Amendment defense since it didn’t in this broadcast – although it normally did – use a tape delay. The court says basically that this didn’t make public speech private, that public speech is protected, and that having to use a tape delay to protect against liability would have a chilling effect.

So by now you’re anxious to hear about that standard-of-review stuff:

We’ve stopped pointing out that boilerplate standard-of-review paragraphs are silly. They’re now a standard module in CA1’s Lego-like process of building opinions. Removing them would require a depth of stylistic analysis that it is the purpose of that process to avoid, rather like lawyers who are happy to practice law by filling out legal forms without worrying about why the forms are worded as they are.

But the standard-of-review section here is actually two paragraphs. The first is boilerplate. The second, though, tells us that dismissals on First Amendment grounds are examined “with a more rigorous eye” (opinions are prone to such careless — and in this case slightly painful – analogies). The court cites for the proposition an opinion written by a U. of A. law professor sitting as a pro tem on CA2 in 1988. (The wording of the opinion suggests that an opinion by Judge Fidel also said it; the suggestion is no doubt inadvertent since it is wrong.)

What (we hope you ask, though apparently no one ever has) does that mean? Our guess is that because the Constitution was involved someone had vaguely in mind the rational basis-intermediate scrutiny-strict scrutiny idea. But those terms  describe distinct (at least in theory) methods of analysis. The analysis of a 12(b)(6) dismissal doesn’t vary by defense – which is why the court could have and use that first, boilerplate, paragraph. So the quotation means that when the First Amendment is the defense the court must do the same thing it always does – but more rigorously. In other words, some cases and some parties are important and for them courts need to work hard; for the rest of us the rest of the time they can throttle back and churn out the usual slop.

Of course this court didn’t mean that. But that’s what it said, and that courts are capable of saying such things does nothing to allay the suspicion of cynics that that’s the way they tend to think.

(link to opinion)

This is essentially Sullivan II; Sulllivan I, described by this opinion as such, is here and here. (The opinion hyperlinks in those blogs are working; we’re aware that the links in some number of our blogs no longer do and we apologize but we really don’t have the time to update 390 blogs every time the courts decide to change the file structure of their servers.) That was essentially a case about the economic-loss doctrine; the Sullivans, subsequent purchasers, sued Pulte for a defective retaining wall.The Supreme Court remanded to allow the negligence claim to proceed while suggesting, citing the Restatement, that it ultimately couldn’t work. This is the appeal of the negligence claim which, after remand, the trial court dismissed. The Court of Appeals affirms, with a dissent.

The court quotes the paragraph from the Supreme Court’s opinion that threw cold water on the negligence claim. But the Sullivans, we will assume in conscious response to that paragraph, had done a clever thing: they disclaimed reliance on common law and insisted that Pulte’s duty of care to them was created by Arizona statutes (apparently the contractor-licensing statutes) and the Phoenix building code. The argument was that those things established a public policy under which they were a protected class of persons.

But the building code says specifically that it isn’t intended to create a protected class. Even if it did, protected-class policy protects against injury, not economic loss. The same goes with the statutes.

The dissent argues that the defective retaining wall might have hurt someone so injury, not mere economic loss, is at issue and a duty should therefore exist. The dissent makes this point in its first paragraph then spends nine more pages making it again, and again, and again in case anyone didn’t get it the first or second or fifteenth time. Actually, though, the dissent carefully avoids using the words “might” or “speculative” in this connection. To the dissent, only the Sullivans’ ability to buy homeowners’ insurance (relevant to risk-spreading theories mentioned in the Restatement) is a “speculative” thing that “might” have happened. The retaining wall hurting someone is in the category of things that “have not yet” happened.

(link to opinion)

It is good that we live in enlightened days when courts have recognized the true purpose of the legal system.

Woestman and Bryan were in a car accident. Bryan hired a lawyer and sued Woestman. Then Bryan, in an apparently-unrelated criminal matter, was declared incompetent. His lawyer had a guardian ad litem appointed for him. Then he left Arizona and they lost track of him. So they moved to appoint a conservator for him on the theory that he had “disappeared” under the conservatorship statute. The trial court granted the motion. On Woestman’s appeal, the Court of Appeals affirms.

Preliminarily, Woestman argued personal jurisdiction. The statute requires that Arizona be the ‘home state” or one with which the protected person has a significant connection. The court holds it a sufficient connection that Bryan had an accident here, hired a lawyer here, and has a sister who lives here.

It seems that the principal question was whether this was a “disappearance.” The argument on Bryan’s side was that it was enough that they didn’t know where he was. Woestman argued that they should have to prove that “the person’s whereabouts are unknown to the person who would be most likely to know the person’s whereabouts.” (Does that mean that nobody asked the sister where Bryan was? Did she not want to say? Were Bryan’s lawyer and guardian not overly motivated to find him? We don’t know.) Woestman’s argument comes from Black’s Dictionary. The court uses Webster’s, which doesn’t contain the person-most-likely-to-know part. Because the statute’s purpose is to protect property, “whether individuals unknown to the court know of the person’s whereabouts does not diminish the court’s duty to appoint a conservator.” (So the test is whether the judge knows where the guy is? Aren’t lawyers, in every other conceivable circumstance, required to make reasonable effort to find people? Isn’t asking the person most likely to know the very minimum of reasonable effort? Did the legislature really mean to include carefully-nurtured ignorance as “disappearance”? How does it effect any purpose of justice to appoint a guardian for someone who could be found just by asking?) 

Those who don’t do much personal-injury work may wonder what the point of all this is. Well, we don’t know this case but we can draw  conclusions. In the old days, losing a plaintiff meant that the claim went away. Now it means that the court can appoint a conservator so that the lawyer can keep the claim going and, with the conservator’s approval, settle it, whereupon various people can take fees from a client who never gets anything. (Because the lawyer has no client to present to a jury this dodge won’t work well every time. But we’ve all known plaintiffs whose lawyers would have much preferred to “disappear” them.)

(link to opinion)