We blogged the Court of Appeals decision here; go there for the facts. The Supreme Court vacates it and holds that the list of witnesses required by Rule 72(g)(1) “can only be supplemented for good cause under Rule 77(g)(4).”

This opinion is largely technical, analyzing the language of the rules. 72(g)(1) requires a list at the time of appeal and (g)(4) specifically says that the court may allow supplements “for good cause shown.” The Court of Appeals decision “obviates” (g)(1). And “defining discovery to include disclosure of additional witnesses” would permit a party to disclose new witnesses up to the 80-day discovery deadline set by (g)(3), which would nullify (g)(4) for 80 days and could be inconsistent with 26.1 (b)(2) (must seek leave to supplement witnesses and exhibits within 60 days of trial.) It might also let a party disclose new witnesses without giving the other party time to depose them.

We criticized the Court of Appeals decision because it encouraged parties to treat arbitration cavalierly. This opinion at least narrows the window: the parties must round up additional witnesses in a month or so (between first learning of the arbitrator’s decision and having to appeal it) rather than almost four (that month plus 80 days of discovery). That’s not at all impossible but raises practical problems and makes it best to plan ahead.

This is a nice, clear, brief opinion. We’re happy and encouraged – and frankly a bit surprised, based on some of his earlier work – to see this from Justice Brutinel.

(link to opinion)

We reported the Court of Appeals opinion here. The Supreme Court “granted review to consider the scope of qualified immunity in the context of arrests made pursuant to a facially valid but quashed warrant.” The court upholds the summary judgment but vacates the Court of Appeals’ opinion.

It agrees with the Court of Appeals’ minority that “that when . . . law enforcement officers arrest someone pursuant to a warrant and are confronted with readily available information that objectively casts genuine doubt on the warrant’s validity, the officers must undertake further reasonable inquiry.” Although “officers do not violate that standard . . . if further inquiry on the warrant’s validity would be difficult, time-consuming, or would jeopardize officer safety” the court finds that these officers should have done so (not merely that there was a question of fact about it).

But it concludes that this was not clear at the time, so the officers have qualified immunity.

The court took the case to make law about how to serve an arrest warrant. It says “We hold, and clearly establish prospectively” that law. Actually, as the court seems backhandedly to acknowledge, it is dicta  — which is why the Court of Appeals didn’t bother to conclude that analysis – but, the Supreme Court being supreme, calling it a holding suffices to make it such.

The opinion is by Justice Pelander and so proceeds in small steps, each supported by a lengthy – almost stream-of-consciousness – explanation, with detailed discussion of each and every case.

(link to opinion)

This is a criminal case but the point the court makes about jury selection can apply in civil cases as well.

One of the jury panelists in this murder trial was a deputy in the Sheriff’s department that investigated the crime. He therefore knew many of the witnesses. Defendant moved to strike him for cause; the trial judge refused after getting a “yes” to the usual can-you-be-fair-and-impartial question.

The majority of the Court of Appeals thought that wrong but affirmed because the defendant had used a peremptory strike on the deputy, who thus had not helped to decide the case.

The State nevertheless petitioned for review. The Supreme Court took the case but then affirmed the Court of Appeals. So, all anybody wanted to do here was to make a point about jurors.

The criminal rule requires dismissal of prospective jurors who can’t be fair and impartial. But there is also a statute on juror selection, 21-211, that disqualifies, among others, not only those who are biased or prejudiced but also those “interested directly or indirectly in the matter under investigation.” Interest must therefore be something different from bias or prejudice. The court cites cases involving financial interest but then says “an interest under A.R.S. § 21-211(2) is not limited to pecuniary concerns.” The deputy could have an interest because law enforcement is seen as part of the “prosecution team.” But – and this is the part that affects civil cases – a co-worker also might not want to question the credibility of witnesses he has to face at work and he might know things about them or the circumstances of the case that aren’t in the record.

The court says that perhaps the trial judge was right in finding the deputy fair and unbiased. But “if the defendant’s jury had consisted of twelve [such deputies], the public likely — and the defendant undoubtedly — would reasonably perceive that a fair trial had not been had, even if all the jurors had sworn during voir dire that they could be fair and impartial.” That’s a test we bet lawyers will remind trial judges of from now on.

(link to opinion)