Workmen’s compensation law plays in its own field and is normally not the subject of our review, but this one raises an interesting issue. Timothy Matthews worked as a police officer for the City of Tucson Police Department for 18 years. In 2018 he responded to a domestic violence call of a barricaded man. He was stationed a block away at a command post and watched this all transpire from a live video camera. The barricaded man shot himself and crawled out of the garage and died. Matthews was assigned to inspect the body and photograph the scene.
A few months later he filed a workmen’s compensation claim based on a diagnosis of PTSD. Under workmen’s compensation statutes, an employee can recover for emotional distress only when an event is considered unexpected, unusual or extraordinary. As discussed earlier this year by the Arizona Supreme Court, this standard is considered from the standpoint of a reasonable employee with the same or similar job duties and training rather than the individual employee’s subjective reaction to an event. The ALJ determined this incident was not an unexpected, unusual or extraordinary event for a law enforcement officer.
The interesting part is the challenge to the mental injury statute itself. Matthews argued the statute violates Arizona Constitution Art. 18 Sec. 8 states in part: “[I]f in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof . .” Pretty broad. Matthews further argued the mental injury statute injects an assumption of the risk defense by requiring an event to be unusual, unexpected, or extraordinary because it allows his employer to argue he knew the job was dangerous when he became a police officer. The court rejects this concluding, in part, the Arizona Constitution requires the injury be an “accident” and the legislature properly defined what that means for mental health injuries. But you must read the dissent. Judge Eckerstrom writes if a mental injury is caused by a risk or danger of employment, it should be compensated if those injuries are directly caused by a known or expected hazards of employment. The Arizona Supreme has avoided this exact question in the past, and another opportunity has just been handed to it.
Clem’s son Skyler died from morphine intoxication while in custody at the Pinal County Jail. His mother filed suit in state court against Pinal County and its Sheriff, and then a year later filed a second lawsuit under § 1983 naming individual detention officers. Plaintiff moved to consolidate the two cases but before this occurred, the individual defendants in the second case removed the second lawsuit to federal court. The federal court action moved a little quicker, and after the case was narrowed against only one defendant corrections officer. The federal court ruled as to that defendant there was no constitutional tort claim, no causation, and qualified immunity applied. The federal court dismissed the case. The defendants in case number one then asked for a dismissal in the first state law case arguing res judicata and issue preclusion. First, on res judicata, the court held there was no privity between the individual officers with the County and its Sheriff. This is so because the individuals were sued in their individual capacity under § 1983; they are individually responsible for damages; there is no respondeat superior liability in constitutional tort claims; and individuals, unlike the entity defendants, are entitled to assert qualified immunity. Qualified immunity was a basis for the ruling; therefore, no privity and res judicata cannot apply. The court of appeals then moved to issue preclusion. Issue preclusion does not require privity but requires identity of issues, actual litigation, full and fair opportunity to litigate, and the issue must have been necessarily decided. Part of the federal court ruling was the one remaining individual defendant did not cause the death. Here, the causation issue overlapped and as to that ruling, any state law claim based on that individual defendant’s actions (failure to check on Skyler’s wellbeing) the defendants are entitled to issue preclusion. Since the federal court did not address the actions of other corrections officers on state law claims, however, those claims can continue. The opinion is well reasoned although those pesky footnotes have us chasing the bottom of pages. The lesson here is more on litigation tactics. Federal court is a tough playground for constitutional tort claims, and pursuing defendants in two different forums is never a good idea.
This blog post written a couple of weeks ago did not publish so here it is.
Arizona’s constitution includes a “home rule charter provision.” Ariz. Const. art. 13, § 2. A recurring issue is what authority this gives because the provision states the charter must be “consistent with, and subject to, the Constitution and laws of the state.” The City of Tucson has litigated over its turf for many years because courts have recognized local autonomy for “purely municipal concerns.” This case is about setting election dates for city officials. And, one wonders what more of a local concern could there be? The Arizona Legislature enacted a law in 2018 stating if a local election was held on a non-statewide election date (off-cycle), and the voter turnout significantly decreased from a statewide election, local elections would be consolidated with the statewide election dates and local terms adjusted accordingly.
After running through the home rule charter provision and arguments from Justice Bolick’s lengthy and continuing dissent over the court’s home rule jurisprudence, the Arizona Supreme Court asks if Justice Bolick is right, what’s left of the charter provision? The supreme court holds the decision of whether to have municipal elections on cycle or off cycle is a matter of purely municipal concern. State law cannot preempt this decision absent a better articulated statewide interest.
A few words about the dissent. Justice Bolick argues the court’s jurisprudence has resulted in “decades of cacophony-producing cases.” To enforce his argument, he begins with a humorous anecdote of a carpenter hitching a ride with a farmer driving a “rust-bucket” truck that never worked and still doesn’t. After leaving the farmer and the carpenter, he gives a textualist reading of the home rule charter provision, questions a statute enacted after the constitution was adopted, and relentlessly attacks prior court decisions. The path he would take is direct – if a state law conflicts with a charter city ordinance, then the ordinance is invalid. But all of this gets rather lost because we are still thinking about the farmer. The late Reid Buckley warned against starting a speech with a joke. Perhaps a dissent should not begin with one either.