Don Shooter was expelled from Arizona’s House of Representatives after being accused of sexually harassing another member Ugenti-Rita. Before he was expelled there was an investigation of both Shooter and Ugenti-Rita. Shooter believed the Speaker of House J.D. Mesnard removed information from the investigation report that exculpated him and inculpated Ugenti-Rita.

Shooter fired off a letter to other members of the House, and Mesnard responded with a news release. Shooter sued Mesnard claiming he was defamed. Mesnard filed a motion to dismiss and pulled out his Arizona constitutional legislative immunity card (art. 4, pt. 2 § 7 (“No member of the Legislature shall be liable in any civil or criminal prosecution for words spoken in debate.”). (Readers may recall a couple of years ago Mesnard was critical of another representative who pulled out a different legislative immunity card after being stopped for speeding – art. 4, pt. 2 § 6.)

The Arizona Supreme Court agrees Mesnard is entitled to immunity for the preparation and release of the report (legislative function), but because the press release was outside that process, it may be actionable. The line is fuzzy. Justice Bolick concurs with the result but believes this case should be decided under separation of powers. Courts should stay out of the legislature and its processes involved in expelling its own. This is a political not a legal issue and should not be resolved by the fuzziness of defining what is and is not protected by legislative immunity. It is beyond the judicial power, writes Justice Bolick, to second-guess the legislature’s methods and actions. “The remedy for abuse of such constitutionally assigned powers is political, not legal.” What if the legislature ordered the dispute resolved at 20 paces?

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.