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.
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.
Ryan v. Napier arose out of a Pima County Sheriff’s Deputy’s intentional use of a dog in apprehending a suspect who, it turned out, was diabetic and experiencing a severe hypoglycemic event that prevented him from understanding what was happening to him and from responding to police commands. The suspect suffered serious injuries as a result of the dog bite and sued the officer and Pima County Sheriff’s Office, alleging the officer “negligently released” the dog and that use of the dog “constituted a negligent, unjustified, and excessive use of force.” He did not assert a battery claim or a Section 1983 civil rights claim.
Negligence Liability
Following a jury verdict in favor of the suspect, the County moved for a new trial on the basis that the trial court improperly instructed the jury on negligence, improperly admitted evidence of the Graham factors to assess the reasonableness of police force, and incorrectly instructed the jury on who bore the burden of proving justification under A.R.S. section 13-409. The trial court denied the County’s motion and the defendants appealed. In a split decision, the Arizona Court of Appeals affirmed the trial court’s rulings, concluding that the suspect could recover under negligence for the officer’s evaluation of whether to intentionally release the dog. See McDonald v. Napier, 243 Ariz. 277 (App. 2017).
The Arizona Supreme Court first addressed whether Arizona recognizes claims for negligent use of intentionally-inflicted force or negligent evaluation of the need to inflict force. It held that the trial court and court of appeals erred in deciding that the defendants could be liable in negligence for the officer’s intentional release of the dog to bite the suspect. Negligent use of intentionally-inflicted force is not a cognizable claim.
It went on to disagree with the court of appeals determination that liability for negligence could arise from an officer’s “evaluation” of a situation. Negligence liability cannot result from a law enforcement officer’s “evaluation” of whether to intentionally use force against another person. A negligence claim requires an act or a failure to act, and an officer’s internal evaluation about whether to use force is neither.
Justification
If an officer’s use of force is justified under Arizona’s justification statutes, the officer is immune from civil liability. The Court held that the justification defense does not apply to negligence actions against law enforcement officers because the reasonableness of the officer’s actions is already a party of the negligence analysis.The Court interpreted A.R.S. section 13-205 as conforming with the common law precept that, in civil cases, defendants bear the burden of proving justification by a preponderance of the envidence. “[P]lacing the burden on law enforcement officers in civil cases to prove the [section] 13-409 justification defense aligns with the burden placed on them to prove non-statutory justification defenses.”
The Graham Factors
Over the defendants’ objection, the trial court permitted the suspect’s police tactics expert to testify that the Graham factors are the standard of reasonableness for purposes of the 13-409 analysis. The Supreme Court agreed with the court of appeals dissent that the expert usurped the trial court’s role in testifying on the applicable legal standard. “Trial courts should not permit experts to state or suggest that Graham governs application of the justification defense under section 13-409.”
Oswaldo Diaz was the sole occupant of a truck that crashed into a business’s entry gate. Fire department personnel found Diaz slumped over the steering wheel, extracted him, and transported him to the hospital, where a nurse noticed the odor of alcohol on Diaz’s breath and person. After the police were advised of these facts, and that medical personnel had drawn Diaz’s blood for medical purposes, a police officer took custody of the blood without a warrant. The state tested the blood’s alcohol content and Diaz was charged with aggravated DUI. The superior court denied Diaz’s motion to suppress the blood evidence and the Arizona Court of Appeals, Division One, accepted special-action jurisdiction.
In Diaz v. Hon. Van Wie/State , the Court of Appeals analyzed Arizona’s “medical-draw exception,” which authorizes the warrantless seizure of certain blood samples drawn by private actors,A.R.S. 28-1388(E). Noting that the statute does not trump the Fourth Amendment, and citing Arizona Supreme Court precedent in State v. Cocio, 147 Ariz. 277, 286 (1985), and State v. Nissley, 241 Ariz. 327, 331 (2017), the Court held that the medical-draw exception for seizure of blood samples requires a showing of exigent circumstances. Exigent circumstances do not include the natural evanescence of alcohol in the bloodstream, particularly where, as here, the blood sample has already been preserved by hospital personnel. The Court held that, absent exigent circumstances, Diaz’s blood sample must be suppressed.
Ina highly-anticipated decision, Quiroz v. Alcoa, the Arizona Supreme Court held that an employer had no duty to protect the public from off-site contact with employees who may have been carrying asbestos fibers on their work clothes. In a detailed analysis of Arizona’s duty framework, the Court determined there was no common-law special relationship requiring an employer to protect the public from secondary asbestos exposure and no public policy giving rise to such duty. The Court rejected the Third Restatement approach to duty and affirmed:
Duty is not presumed. In every negligence case a plaintiff must prove that a duty exists.
Foreseeability is not a factor in determining duty and cannot be used to expand an alleged tortfeasor’s duty.
Arizona bases duty solely on whether a special relationships exist under the common law or are statutorily-created.
State and federal statutes are the primary sources for identifying whether public policy creates a duty.