When determining attorney’s fees in a contract dispute, the prevailing party is entitled to fees under the presumptive “net judgment rule.” The “totality of litigation” and “percentage of success” tests only come into play when there are multiple claims and varied success, cf., Schwartz v. Farmers Ins., 166 Ariz. 33, 38 (App. 1990). The net judgment rule applies even if the jury awards the plaintiff significantly less than what was sought. What is surprising here is that an experienced, now retired, trial judge allowed his indignation over the plaintiff’s litigation to influence his application of the law.

This is a special action. Plaintiffs are indicted partly based on the State’s forensic expert testimony before the grand jury. The indictments are later dismissed, and Plaintiffs file suit against the State and its investigators. They allege the defendants, including the forensic expert, fabricated evidence to secure the indictments. They have the grand jury transcript and want to use it in their civil rights lawsuit. Wary of a criminal statute that would make disclosure a misdemeanor, they seek permission from the state court. The state court denied the request, and they filed this special action. The Court of Appeals accepts jurisdiction and grants relief. Under these circumstances, where the defendants who were indicted but later dismissed are now plaintiffs, there is less interest in keeping things secret. The trial court needs to consider this reduced confidentiality interest. Further, while it is the state court’s role to decide the societal interest in secrecy and whether disclosure is appropriate, it is the federal court that determines if there is a specific need for this evidence in the civil case. We expect to learn more about this from the federal court and, if it proceeds, how plaintiffs navigate the immunity barriers.

The Arizona Supreme Court rules that the pandemic statute, A.R.S. § 12-516(A), which provided immunity for healthcare providers from negligence but not gross negligence claims, is unconstitutional. Judge Beene outlines the opinion in an easy-to-follow manner, but a little heavy on citations. Since negligence claims were protected under common law, and the entire “negligence” action is displaced, this constitutes an abrogation, not regulation, under the anti-abrogation clause, art. 18 sec. 6. Gross negligence requires an additional showing that the defendant acted with reckless indifference and adds a quasi-intent element. The part of the statute that increases the burden of proof to “clear and convincing evidence” aligns with this distinction and is severable. (That heightened burden coupled with the standard of care under the pandemic will surely be high hurdles for plaintiffs to overcome.)

Judge Bolick dissents for the same reasons he has previously outlined in other cases: art. 18 sec. 6 does not have the meaning attributed to it. As Professor Roger Henderson discussed in a 1993 law review article, the anti-abrogation clause was intended to preserve specific tort actions by employees against their employers. That is why it is included in a section on labor law, and not Arizona’s Declaration of Rights. Moreover, in Justice Bolick’s view, abrogation only applies when the cause of action is entirely eliminated, and leaving a cause of action for gross negligence is not a complete abrogation. He may be right, but the wrong turn was taken long ago. He concludes by agreeing with the majority on the issues raised by the State and the Chamber of Commerce. He scolds them for defending the statute based on inherent emergency powers under the Arizona Constitution or derivative immunity.

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