Garibay v. Johnson

545 P.3d 468

Gabriel GARIBAY; Deborah Martinez-Garibay; and Pima County, Petitioners,

v.Hon. Kellie JOHNSON, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent,andWilliam Fox, the surviving spouse of Angela Fox, deceased, individually and on behalf of all those entitled by law to recover for the death of Angela Fox, Real Party in Interest.

No. 2 CA-SA 2023-0091

Court of Appeals of Arizona, Division 2.

Filed February 14, 2024

Special Action Proceeding, Pima County Cause No. C20231936. JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND DENIED IN PART

Humphrey & Petersen P.C., Tucson, By Andrew J, Petersen, Counsel for Petitioner

Mercaldo Law Firm, Tucson, By John J. Kastner Jr. and Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney, Counsel for Real Party in Interest

OPINION ON RECONSIDERATION

O’NEIL, Judge:

¶1 In this wrongful-death action, Pima County and Gabriel Garibay seek special-action review of the respondent judge’s denial of their motion to dismiss plaintiff William Fox’s claims against them. We accept jurisdiction and grant partial relief.

Background

¶2 In March 2022, the Pima County Board of Supervisors ("the Board") voted to appoint Deborah Martinez-Garibay as constable to fill a vacant position. When Martinez-Garibay attempted to serve a writ of restitution on tenant Gavin Stansell, accompanied by apartment manager Angela Fox, Stansell shot and killed both women and another resident at the apartment complex. He then killed himself.

¶3 Angela’s surviving spouse, William Fox, brought a wrongful death action against Gabriel Garibay as Martinez-Garibay’s widower, Pima County, and the Arizona Constable Ethics, Standards and Training Board (CESTB). He alleged Martinez-Garibay had negligently and grossly negligently breached her duty "to protect and avoid exposing Angela … and the general public to harm" while serving the writ. Fox alleged Pima County was Martinez-Garibay’s employer and, thus, pursuant to the doctrine of respondeat superior, vicariously liable for her conduct. Finally, he alleged that Pima County and CESTB had "negligently failed to adequately hire, train, supervise, and monitor" Martinez-Garibay.

[1] ¶4 Garibay and Pima County moved for a judgment on the pleadings under Rule 12(c), Ariz. R. Civ. P., asserting the Board’s decision to appoint Martinez-Garibay is entitled to absolute immunity, Pima County "is not responsible for supervising or training constables," and respondeat superior does not apply because a constable is "an officer of the court whose duties are imposed by statute." They further asserted Martinez-Garibay had judicial immunity and, in any event, owed no duty to Angela. The respondent judge denied the motion, rejecting the immunity claims and concluding "the facts, as plead, could give rise to a finding by the finder of fact that the County did control Ms. Garibay and she did have a duty to act as a reasonably prudent constable." This petition for special action followed. Special action jurisdiction is appropriate to address whether immunity applies, see City of Scottsdale v. Mikitish, 253 Ariz. 238, ¶¶ 4-5, 512 P.3d 92 (App. 2022), and other pure questions of law, see Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268, ¶ 9, 159 P.3d 578 (App. 2007). See also A.R.S. § 12-120.21(A)(4); Ariz. R. P. Spec. Act. 1(a), 3.

Discussion

[2, 3] ¶5 Garibay and Pima County argue the Board is entitled to absolute immunity and "is not vicariously liable for a constable." They also argue Martinez-Garibay is entitled to judicial immunity and owed no duty to Angela. "A motion for judgment on the pleadings … tests the sufficiency of the complaint, and judgment should be entered for the defendant if the complaint fails to state a claim for relief." Giles v. Hill Lewis Marce, 195 Ariz. 358, ¶ 2, 988 P.2d 143 (App. 1999). We review the trial court’s ruling de novo, accepting the allegations in the complaint as true. Save Our Valley Ass’n v. Ariz. Corp. Comm’n, 216 Ariz. 216, ¶ 6, 165 P.3d 194 (App. 2007).

I. Legislative Immunity

[4–6] ¶6 Garibay and Pima County assert the Board’s appointment decision, pursuant to A.R.S. § 16-230(A)(2), is entitled to absolute legislative immunity under A.R.S. § 12-820.01(A)(1). We review the application of the immunity statute de novo. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 163, 920 P.2d 41, 43 (App. 1996). "[G]overnmental liability is the rule in Arizona and immunity is the exception," and we "construe immunity provisions narrowly." Doe ex rel. Doe v. State, 200 Ariz. 174, ¶ 4, 24 P.3d 1269 (2001). "Accordingly, we examine the application of this statute to [Fox]’s claims and [Pima County]’s acts with a view to finding immunity only if it clearly applies." Schabel, 186 Ariz. at 163, 920 P.2d at 43.

¶7 Under § 12-820.01(A)(1), a public entity is entitled to absolute immunity for "acts and omissions of its employees constituting … [t]he exercise of a … legislative function." At oral argument before this court, Garibay and Pima County asserted the Board’s appointment of a constable is a legislative act because it is a political question expressly committed by statute to the Board, a legislative body. Specifically, § 16-230(A)(2) provides, "If a county office becomes vacant, the board of supervisors shall appoint a person of the same political party as the person vacating the office to fill the portion of the term until the next regular general election."

[7–10] ¶8 Garibay and Pima County contend that a legislative function is defined according to the nature of the body that is statutorily required to perform it. According to their argument, if the law directly assigns the function to a legislative body, the function is legislative. But in the context of common-law legislative immunity, Arizona courts have defined a legislative function differently. See Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, ¶¶ 15-16, 21, 75 P.3d, 1088 (App. 2003) (explaining basis for common-law legislative immunity). "Whether an act is ‘legislative’ depends on the nature of the act," not the body authorized or required by law to perform that act. Id. ¶¶ 15, 21 (addressing legislative privilege, which arises from common-law legislative immunity). "[O]fficials outside the legislative branch are entitled to legislative immunity when they perform legislative functions." Bogan v. Scott-Harris, 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998); see also Fields, 206 Ariz. 130, ¶ 21, 75 P.3d 1088 (favorably citing Bogan), And a legislative body’s act that is "related to the legislative process" is not protected unless it bears the "hallmarks of traditional legislation." State ex rel. Montgomery v. Mathis, 231 Ariz. 103, ¶¶ 75, 79, 290 P.3d 1226 (App. 2012) (quoting Fields, 206 Ariz. 130, ¶¶ 18, 21, 75 P.3d 1088). A function is legislative when it reflects "a discretionary, policymaking decision that may have prospective implications." Fields, 206 Ariz. 130, ¶ 21, 75 P.3d 1088.

[11] ¶9 Although this case involves statutory rather than common-law immunity, we see no reason to depart from this definition. See Galati v. Lake Havasu City, 186 Ariz. 131, 135, 920 P.2d 11, 15 (App. 1996) (looking to common-law immunity cases to determine scope of statutory immunity under § 12-820.01). Indeed, § 12-820.01 largely codified legislative immunity, along with various other common-law immunity doctrines. City of Tucson v. Fahringer, 164 Ariz. 599, 600-01, 795 P.2d 819, 820–21 (1990). Consistent with this understanding, in another case involving § 12-820.01(A), this court stated that a "[c]ounty exercises its ‘legislative function’ by creating, defining, or regulating rights." County of La Paz v. Yakima Compost Co., 224 Ariz. 590, ¶ 35, 233 P.3d 1169 (2010). Applying this definition, the Board’s decision concerning whom to appoint as constable is not a legislative function. See Mathis, 231 Ariz. 103, ¶ 79, 290 P.3d 1226. Although the law assigns responsibility for appointment of constables to county boards of supervisors under limited circumstances, there is nothing uniquely legislative in the act of appointing a person to fill a vacant office. See § 16-230(A)(2). By default, our constitution treats appointment of officers to fill vacancies as a responsibility of the executive. Ariz. Const. art V, § 8.

¶10 Despite the Board’s role in filling a vacancy in the office of constable, the constable’s authority is independently defined by law, and the Board’s appointment of a person to fill that office cannot expand, contract, or otherwise redefine that authority. See A.R.S. § 22-131. The appointment lacks the "hallmarks of traditional legislation" because it sets no prospective policy, Fields, 206 Ariz. 130, ¶ 21, 75 P.3d 1088 (quoting Bogan, 523 U.S. at 55, 118 S.Ct. 966), and does not "creat[e], defin[e], or regulat[e] rights," Yakima Compost Co., 224 Ariz. 590, ¶ 35, 233 P.3d 1169. Pima County is not, therefore, entitled to absolute immunity under § 12-820.01(A)(1) for its appointment of Martinez-Garibay as constable.

II. Judicial Immunity

[12, 13] ¶11 Garibay and Pima County argue Martinez-Garibay is "entitled to judicial immunity" because she was serving the writ pursuant to a court order. Judicial immunity is a common-law doctrine that exists "to assure that judges will exercise their functions with independence and without fear of consequences." Acevedo v. Pima Cnty. Adult Prob. Dep’t, 142 Ariz. 319, 321, 690 P.2d 38, 40 (1984). "Whether judicial immunity exists is a legal question for the court." Burk v. State, 215 Ariz. 6, ¶ 7, 156 P.3d 423 (App. 2007).

[14, 15] ¶12 Fox argues that judicial immunity does not apply here because "[t]he underlying policy of principled and fearless decision-making is not served by allowing immunity under the circumstances presented in this case." At oral argument before this court, he argued that even though judicial immunity protects a judge’s order issuing a writ, it does not extend...