*1 James ception general rule. Richard issue Duguay driving had seen the car in FENTON, Judge Norman S. of the prior accident, of the did not day Superior Court in and for Pima
know who owner not was. He did County, Petitioner, Although believe the car was stolen. knew the car was to be returned Du- house, guay’s parents’ he was not aware of The Honorable Lawrence HOWARD and fact, any time limitations. he believed Hathaway, the Honorable James D. plan returning after called for car Judges Appeals, Arizona Court jail visiting Duguay evening. Two, Respondents, Division But, James admitted accident occurred trip, purpose on a was the sole of which backpack.
return the Faced with this evi- MARTINEZ, Party Real dence, men as reasonable could differ Interest, reasonably whether Richard James believed per- he was the vehicle operating owner, mission of the and whether he was scope permission. within the of that PARSIL, Party Real in Interest. summary
cordingly, judgment inappro- was priate. 56(c), Rule 16 A.R.S. Rules of Civil Procedure. Supreme Court of though Even all had for a moved En Banc.
summary judgment, alleging that mate- no remained, rial questions grant- of fact summary judgment error.
The conflicting testimony on the ultimate trip precluded of the final a sum-
mary judgment on issues of the owner’s
permission whether James’ actions scope
were within permission. of that
Similarly, Richard James’ state of mind major
constituted a issue only which could aby determined trier of fact. Because questions,
of these which properly lie within province fact, a trier we are'
reversing granting of the summary
judgment.
Judgment superior re-
versed and the case remanded for further
proceedings opin- not inconsistent with this
ion. HOLOHAN,
concurring.
Chandler, Tullar, Udall & Redhair D. Udall, Tucson, B. for Bruce Parsil. Freeman, Tucson, Norman R. for Guiller- mo Martinez.
HAYS, Justice. This is a Action brought peti- Fenton, Judge tioner Norman S. County, in and for Pima against respondents Lawrence Howard and James D. Hathaway, judges of the Court of Appeals. petitioner asks this court to vacate the Court of decision and to plead rule that he has a naming respon- him as a dent, uphold and further to the trial court’s quashing subpoena. order Martinez, party real in inter- est, scarring sustained severe facial as a involving result of an automobile accident Parsil, party the other real in inter- scarring, est. As a result of the facial marriage began Martinez claimed his to de- later, he filed for year teriorate. About marriage. dissolution of his He and his participated counseling through wife Later Martinez Court of Conciliation. person- Parsil for against an action injuries. damages alleged al Some personal injury action were for emo- resulting scarring tional stress from the subpoenaed Martinez’s face. Martinez Don Crawford, the assistant director of County, Pima Court of Conciliation of for deposition. The taking his bring Crawford to subpoena required documents, records, deposition “any and all reports, concerning counseling and/or notes to the above-named Plain- services rendered tiff.” County Superior
Pima Nor- entry in a minute man S. Fenton indicated Crawford, the request at the quashed subpoena. on its own motion Martinez moved to set aside order Citing Atty., Neely, Pima Stephen D. Howard, 25-381.16, Judge Fenton refused to set M. and James Howard Baldwin Silver, that the confi- aside the order on the basis Sp. and Rose County Attys., Deputy Div., Tucson, nature of the Con- peti- dential Civ. Counsel was the heart of the ciliation Court tioner. Conciliation Court’s effectiveness in render- office to respondent in ing proper service to the it served. Although Martinez signed and his wife had Next, considering the merits of the authorizing forms' Crawford to release in- Action, we believe that the subpoe formation relevant to Martinez’s emotional *3 na as presently written is overbroad. problems, the court stated the that “form” gives A.R.S. 25-381.16 a privilege § authorization was inadequate to cover the parties communications of the to unique situation where more than commu- acting for the Conciliation Court and to involved, plaintiff nications the and reports of agencies. outside resource This the “form” did not cover the confidentiality does not mean that other coming matters to things of such as the counselor’s notes and the attention of the Conciliation Court dur observations. ing the of parties the must be brought Martinez then Special freely easily and disclosed. Every court has Appeals in the Court of alleging that the power inherent to do those things which are lower court had abused its discretion. necessary for the efficient exercise of its Judge attempted Fenton respond by to hav- jurisdiction. Court, v. Superior See State him, Attorney represent the 242, (1931). juris The response the Court of ordered the diction of the Conciliation Court is set forth stating judge stricken that the had no in A.R.S. 25-381.08 provides: § which standing in the Action. The Court “Whenever any controversy exists be- Appeals granted requested the relief of spouses tween may, which unless a recon- Judge Martinez and ordered Fenton to va- achieved, ciliation is result in legal the cate the order the separation, dissolution or annulment of Fenton then marriage or in disruption stay tion and obtained a of proceedings in household, and there any is minor child of pending the trial court the outcome of the spouses or either of them whose wel- Special Action. might fare be affected thereby, the con- judge We hold that a does have the ciliation jurisdiction court shall have over right appear to and to represented in a the controversy, and over against him, special action where the judge thereto all persons having any rela- respondent. is a named See Hickox v. Su tion to the controversy, as further provid- perior Court in and for County Maricopa, 1962, ed in this article. Added Laws Ch. 195, Ariz.App. (1973). 505 119, 1973, 1. As § amended Laws Ch. case, right the instant to 139, 3.”§ appear represented especially is The jurisdiction Conciliation Court’s is important because the named as re further defined A.R.S. 25-381.01 which § is the head of the Conciliation states: Court, vitally is therefore concerned purposes “The of this article are to with the outcome of the Action. It promote public welfare preserving, judge’s prerogative is the to promoting protecting family life and argue hamper for a result which would not the institution of matrimony, protect to functioning of the the effective Conciliation children, the rights of provide and to Court. means for the spouses reconciliation of proper We further hold it is for the and the amicable settlement of domestic County Attorney judge who and family controversies. Added Laws respondent is named Ch. 1.”§ County Attorney may While the not be required attorney judge, to serve as for the Under these statutes and State v. Court, County Attorney willing supra, to do if the so Conciliation services, judge accepts his we may and the deem Court refuse to disclose matters not appropriate 25-381.16, circumstances for proper privileged by it if will inference in the that the hamper Conciliation statute counselors disclosure carrying purposes. any out its of the Conciliation Court are entitled to personal privi- treatment or have a However, protect the court’s prod- lege protecting their so-called work effectively by prohib ability to function its uct. balanced iting disclosure must be confidentiality only privilege information be- litigant of a need When, case, longs parties appearing in the Concil- person as in this sought. If custody in the iation Court. A.R.S. § claims that information I privilege there is a waiver find necessary, will be the Conciliation Court nothing gives in the statute which proceeding, implied in another helpful, to him any the counselors or director basis to ob- hearing must be held to deter an in-camera ject giving testimony harm on the matters and the mine the need for disclosure conducted by Court if the desired dis them. to the Conciliation *4 judge should order allowed. The closure is The form of consent to disclosure sub- ap that material shown to disclosure of mitted to conciliation was balancing the needs just propriate the situation. The inadequate to cover con- information and individual for the form was the usual release of informa- sent Court for confi need of the Conciliation personal injury litigation. used in tion form between this dentiality. parallel We find It authorized release of information to the taken the case and the action disposition of signer’s attorney. deposition Since the v. Pyle, in Mathews by the court to others not cov- would involve disclosure (1952), although the Math form, ered the waiver was not broad rather than involved the executive ews case enough statutory privilege to waive the cre- government. judicial branch ated The Judge A.R.S. § was, therefore, of the Conciliation Court filed opinion vacated, justified 16,1977 this case November proceed- trial court for
is remanded with the above.
ings consistent STRUCKMEYER, V. C. GORDON, J., concur.
HOLOHAN, Justice, specially concurring. I con- hereinafter stated the reasons For this court of disposition cur in the CAGLE, woman; Mary E. a divorced action. special this Doyel, Appellants, Gertrude views of agreement in total I am a re- named as majority that has the Sr., action BUTCHER, E. Thomas M. David agree I also represented. Butcher, Blair, Irene M. Donald W. wife, Attorney may Poppe, Poppe and Bonnie J. judge. Ray Cagle, Appellees. E. majority company with part IWhere as one of this case resolution is on the Supreme Court judi- powers” of “inherent involving the In Banc. impression majority leave ciary. The may be system the Conciliation the concilia- one of by requiring disrupted deposition, at a testify
tion counselors power to has inherent course a
and of suggestion There is no this.
prevent