Federico v. Maric (CA1 1/28/10)

Posted on by

This opinion discusses the doctrine of aiding and abetting in tort law.

It used to be said – and is still technically true – that there was no such thing as a civil conspiracy. That hindered the sue-everybody-in-sight types and so a tool even better than conspiracy was slipped into their toolbox several years ago: aiding and abetting. That has now become yet another phrase that tort lawyers love to throw around without worrying overmuch about what it means. Even its sponsors, the ivory-tower types at the ALI, may not have too firm a grasp.

Federico said he was hurt in an industrial accident. Maric, the doctor hired by the worker’s compensation carrier to perform an IME, didn’t agree. The carrier turned down the claim and Federico sued everyone in sight. He claimed that Maric aided and abetted the carrier’s wrongful denial. Maric moved for summary judgment; the trial court granted it; this opinion affirms.

After, that is, the usual long, repetitive, useless, boilerplate standard-of-review paragraph. Sometimes we actually get the feeling that the courts are not hanging on our every word.

Aiding and abetting requires substantial assistance to another’s act while knowing that the act is a tort. A leading case, Wells Fargo, 201 Ariz. 474, held that the bank knew enough about Fife Symington’s malfeasance; “actual and complete knowledge of the tort is not uniformly necessary” it said, in one of those delightfully vague, multi-adjectived phrases that allows lots of lucrative litigation.

But the court here ruled that Maric didn’t know enough. Federico painted him as a doctor who thinks almost everyone a malingerer. But those facts relate “only to Maric’s own actions and the propriety thereof” rather than to the carrier’s actions or Maric’s knowledge of them.

The evidence also did not support the idea that Maric substantially assisted the tort because the carrier didn’t need the IME in order to deny the claim.

On a different day, a different panel might have gone in a different direction and said that there was just enough evidence to get past summary judgment. But Federico seems to have been making an unfortunately routine ad hominem argument: Maric is a bad person (a biased doctor) and so he should be liable for something. One of the problems with aiding and abetting is that it gives legal cover for that sort of essentially non-legal argument. Its a tort animal that unless firmly handled could get out of control and eat up most of the zoo. The court perhaps had that in mind.

Turken v. Gordon (1/25/10)

Posted on by

This is a rare type of constitutional opinion: it makes its subject easier to understand, not harder.

The case arises out of CityNorth, which some of you may be sick and tired of hearing about but which the rest never heard of. To make a long story short (which the opinion admirably does), CityNorth is a huge office/shopping/etc. project that developers got people excited about before announcing that they didn’t have the money for. They asked for government help. Phoenix agreed to split tax revenue with them (to the tune of $97 million a year or so) in return for the exclusive use of 200 parking spaces and the non-exclusive use (i.e., the public could park in the building if they were lucky enough to find open spaces) of another 2980. 

Plaintiffs sued, arguing that the deal violated the Gift Clause. Article 9  §7 of our constitution prohibits government from making “any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.”  Millions for a few parking slots was, Plaintiffs argued, a barely-disguised subsidy to the developers.  The City replied that the money wasn’t just for parking spaces but for more and better business, jobs, tax revenue, happiness, motherhood, apple pie, and all the other things in the standard package of real-estate-developer promises. The trial court ruled for the City; the Court of Appeals ruled for the Plaintiffs; the Supreme Court ruled for both.

The legal point of the opinion is to clarify Gift Clause law, which it does well. The public expenditure must be (1) for a “public purpose”  and (2)  proportional to the consideration received (or at least not “grossly disproportionate”). “Public purpose” is broad; the court agreed that getting public parking spaces met the test. But the consideration must be that actually obtained in the agreement, not the alleged indirect benefits. So, government can’t pay a developer big bucks and receive a pittance plus pie in the sky – that’s a subsidy, not a purchase. The parking spaces themselves have to be worth what Phoenix would pay.

Are they? The court, no doubt wisely, finds that “difficult to believe.” But it finds it even more difficult to say “no” to the City of Phoenix. Instead of remanding for a finding that would kill the CityNorth deal, it announces that its holding will have prospective effect only. This is because its earlier holdings may have “confused” government lawyers and because “various amici [namely, other cities and towns and developers] have claimed that a number of public-private transactions were entered into . . . under a similar misapprehension.”

The court is of course correct to say that the amici “claimed” to have similar projects in the works. Its careful use of the word is a respectful bow to the law of evidence – which the court then head-butts to the ground by quite obviously accepting the claim as fact and basing the resolution on it. (To the court’s credit, though, the opinion is also careful repeatedly to put  the word “panoptic” – which an earlier case had employed – in quotes. We hope this signals that courts should stick to words they understand rather than indulge in others whose only value is impressive mystery.)

Its interesting that all those government types were “confused” in the same direction. Normally, you deny retroactive effect only when you’re changing the law; here, the court makes clear that that’s what its not doing. We trust that no private industry will ever be naive enough to rely on the “mass confusion” defense, no matter how big the industry nor how tangled the law.

This is a political case; almost everyone within 100 yards of it is either a lawyer-politician or a politician-lawyer. (That often happens in constitutional and elections cases – a reason, perhaps, for the legal confusions so often found there.) Political cases tend to have odd outcomes – odd, that is, to plebian lawyer-lawyers – and that’s just life in the big city, or at least in Phoenix.

How odd this one is remains to be seen; the Supreme Court remanded to the Court of Appeals, which had addressed only one of the Plaintiff’s constitutional arguments. In the mean time, we know that the Gift Clause means what it has always meant, except during that period when law was suspended due to confusion.

State v. Pierce (CA1 1/21/10)

Posted on by

We recently complained that the courts can’t say anything in less than nine pages, so we have to give credit where its due. This case deals with a fairly substantial issue in six. And we don’t want to seem ungrateful – we’re just trying, as always, to be helpful – when we point out that it should have been even shorter.

Pierce committed first-degree murder as a minor. He was sentenced to natural life. His argument on appeal was that natural life for a juvenile murder is unconstitutional.

The opinion deals with this in just two pages. Pierce cited the U. S. Supreme court case holding that the death penalty for a juvenile crime is unconstitutional. As various courts have pointed out, the case doesn’t apply to non-capital sentences.

So why is the opinion six pages long? Because it does what most criminal opinions feel obligated to do: it describes the crime in extended and entirely useless detail. The contention here was not that the sentence was inappropriate to the crime but that it could not be imposed at all, as a matter of law.

And yet the opinion tells us about the planning of the crime, its motivation, how the various perpetrators got to the scene, what their names were, what kind of weapons they had, and even what they were wearing. It also recounts several of Pierce’s unrepentant statements to police, including expletives that – having included them for no reason at all – it then censors  in such a way as to draw attention to them.

We know perfectly well that the kids and naifs who draft these things think that a statement of facts should be a summary of all the evidence. Its obvious that no adult has ever taught them that the only facts in an opinion should be those required to understand, interpret, and apply the holding, and that none has never bothered to edit the stuff they churn out. So perhaps that much isn’t their fault.

But what about the expletives? Do they think they’re being modern and clever by including “shit” in a judicial opinion and giving it pasties (“s**t”)? Does it make their pubescent pulses race to think that they’ve done something slightly “naughty”? Or is the pretense that they’re being “gritty” and “real”? And where are those adults, who merit selection assures us are the best and the brightest? The buck has to stop somewhere.