Two retired state court judges, both members of the Elected Officials Retirement Plan (“EORP”), a defined benefit retirement plan for judges and other elected officials that is funded, in part, by employer and employee contributions, hired a law firm to pursue claims for declaratory and injunctive relief arising out of the legislature’s cap on employer contributions to the EORP. The judges entered a contingent fee agreement that limited attorney recovery to the fees available and awarded under any applicable fee shifting statute.
After Plaintiffs were successful in their suit, they were awarded attorney fees under A.R.S. § 12-341.01, which courts have held allows for fees if the successful party has a “genuine financial obligation” to compensate an attorney. The State appealed, arguing that Plaintiffs did not qualify for an award of attorney fees under A.R.S. § 12-341.01.
The Arizona Court of Appeals affirmed the superior court’s fee award based on the plain language and motivation behind A.R.S. § 12-341.01. The statute allows the court to award reasonable attorney fees to a successful party in a contract when the successful party shows (1) there was an attorney-client relationship and (2) there was an assumed genuine financial obligation to compensate the attorney. The Court held that the conditional nature of the agreement between the plaintiffs and the law firm does not diminish the plaintiffs’ payment obligation, noting that to decide otherwise would go against the motivation of the statute – to mitigate costs of litigation and provide assistance for indigent plaintiffs.
The mother of an infant who suffocated and died at a daycare center sued the State of Arizona, alleging a state inspector was grossly negligent in directing the daycare that Boppy pillows were only to be used on the floor during “tummy time.” Her infant subsequently suffocated and died when left unattended on a Boppy pillow during “tummy time.” The superior court granted the State’s motion to dismiss for failure to state a claim and the plaintiff appealed.
The Arizona Court of Appeals vacated the dismissal of the plaintiff’s first and second claims, which allege gross negligence and respondeat superior liability, on the basis of a finding of duty. Unpersuaded by the State’s argument that daycare investigators are akin to law enforcement officers whose duty is to the general public, not an individual, the Court noted that even police officers have a duty to act reasonably when they endeavor to provide specific protection to a particular person. SeeHogue v. City of Phoenix, 240 Ariz. 277, 280-81 (App. 2016) (quoting Austin v. City of Scottsdale, 140 Ariz. 579, 581-82 (1984); see also Hutcherson v. City of Phoenix, 192 Ariz. 51, 55-56 (1998) (by creating 911 system, city accepted duty to reasonably respond to emergency calls).
Therefore, when the inspector ordered the daycare to correct their protocol on using pillows, the inspector provided specific directions to particular people and created a special relationship that effectively opened the door for the plaintiff’s gross negligence claim.
In this case, the Arizona Court of Appeals addressed the proper procedural steps for allowing a delayed appeal. Here, the superior court granted Chung’s request to file a delayed appeal after the clerk failed to notify the parties of the entry of the Arizona Rule of Civil Procedure 54(b) Judgment, as required by Rule 58(c). The court entered partial final judgment on October 2, 2017. Chung first learned of the entry of Judgment two months later, on December 4, 2017, when counsel for the opposing side sent them a copy.
Chung moved to extend the time to appeal under ARCAP 9(f), or, in the alternative, to set aside the judgment under Rule 60(b). The superior court granted the ARCAP 9(f) time extension, but the Court of Appeals denied ARCAP 9(f) relief as untimely under the Rule. The superior court then set aside the Rule 54(b) Judgment and allow the Plaintiff to appeal, which led to the instant appeal. Choulet argued it was error to set aside the Rule 54(b) Judgment to allow a delayed appeal and the Court of Appeals agreed.
Although under ARCAP 9(f), the court may open the time for filing an appeal fourteen days in the case of a party not receiving notice of the judgment, this only applies if filed within twenty-one days of entry of judgment. Here, Chung made the request two months after the entry of judgment and, thus, the request was more appropriately analyzed under Rule 60(b), which allows reopening to file an appeal if the moving party shows, among other factors, due diligence and extraordinary circumstances. In this case, Chung provided the court with no evidence that they exercised due diligence by simply waiting for the judgment to come through the mail and failed to properly explain what extraordinary circumstances existed. Thus, the court reversed the superior court’s order and remanded the case for further proceedings on the remaining claims.
In this case, the Arizona Court of Appeals addressed whether an agreement to arbitrate that requires one side to bear all arbitration costs, regardless of outcome, is substantively unconscionable when the party seeking to avoid arbitration agreed to same.
The Court of Appeals found that the contract, which the signer admittedly took limited time to read, which recommended consultation with counsel, and which did not make patient admission contingent on signing, was not procedurally unconscionable, as nothing in Arizona law requires a drafter to explain the provisions of standardized contracts, nor does the post-hoc regret of a party suffice to demonstrate unconscionability.
The Court of Appeals affirmed, however, the superior court’s finding that the cost-shifting provision of the contract was substantively unconscionable. In other words, its terms were “so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.” Maxwell v. Fid. Fin. Servs., Inc., 184 Ariz. 82, 89 (1995). It thus severed the cost-shifting portion of the agreement from the remainder and remanded the case for further proceedings.
This week, the Supreme Court of the United States held that although the Age Discrimination in Employment Act (“ADEA”) covers private-sector employees with 20 or more employees, it also covers state and local government employers, regardless of the number of employees they have.
Mount Lemmon Fire District v. Guido, arose after the Mount Lemmon Fire District, an 11-employee political subdivision, laid off its two oldest firefighters, John Guido (age 46) and Dennis Rankin (age 54). The men alleged age discrimination. The Fire District’s defense was that it did not qualify as an “employer” under the law.
The issue was one of statutory interpretation. The ADEA defines “employer” as a person or entity with 20 or more employees. A 1974 amendment to the ADEA, however, added state and local governments to the definition of “employer.” In addition, it amended the Fair Labor Standards Act (“FLSA”), which extends to all government employers regardless of size.
The Ninth Circuit Court of Appeals sided with the firefighters, creating a split with other Circuits. It held that the language of the ADEA should be read to group public employers apart from private ones, to whom the 20-employee threshold applies.
In an 8-0 decision authored by Justice Ginsberg, SCOTUS agreed with the Ninth Circuit, dismissing Fire District concerns about ADEA liability endangering small public employers’ operations. The opinion noted that for 30 years the Equal Employment Opportunity Commission has interpreted the ADEA as covering political subdivisions regardless of size. Moreover, a majority of states also proscribe political subdivisions from discriminating on the basis of age, with no numerical threshold, and with no adverse consequences for smaller agencies.
For the third time in seven years, the Supreme Court is faced with the question of whether probable cause bars a First Amendment retaliatory arrest claim under 42 U. S. C. § 1983. On November 26, 2018, the Court will hear oral argument in Nieves v. Bartlett, a Ninth Circuit case out of Alaska, and will once again confront the issue of whether probable cause for the underlying arrest ends the retaliatory arrest inquiry. Despite the overwhelming majority of Circuit Courts barring such claims, under current Ninth Circuit precedent, a First Amendment retaliatory arrest claim may proceed, even where probable cause exists. In 2012, in Reichle v. Howards, 566 U.S. 658, the Supreme Court dodged the question of the probable cause bar by granting qualified immunity to law enforcement officers because the law was not clearly established. In 2018, in Lozman v. City of Riviera Beach, 568 U.S. 115, the Court again declined to reach the issue, deciding only that a retaliatory arrest claim against a municipality could survive a “but for” causation test. Hoping the third time will be the charm, the Supreme Court may finally decide in Nieves to resolve the split in the Circuits and conclude that the existence of probable cause defeats a First Amendment claim for retaliatory arrest under 42 U. S. C. § 1983.