*1 Grimm, wife and and John GRIMM Edna parents
husband, surviving natural Grimm, Deceased, and Robert
of John wife, Bennett, Ap- husband Pat
pellants, BOARD OF PARDONS ARIZONA Jacobs, PAROLES, Walter Walter
AND Simmons, and Donald
Michaels Board of Pardons and the Arizona
Paroles, Appellees. 12775-PR.
No. Arizona, Court
Supreme Banc. 11, 1977.
April *2 Even, &
Stompoly by P.C. John G. Stom- Tucson, for poly, appellants.
Fish, Briney, Miller, Duffield & by P.C. Hofmann, Tucson, Clifford J. appellees. GORDON, Justice: Appellants brought a wrongful death and personal injury suit appellees alleg- ing that appellees’ grossly negligent and prisoner reckless release of Mitchell Thomas Blazak caused harm appel- for which sought lants redress. Appellants are Edna Grimm, surviving and John parents natural Grimm, deceased, of John and Robert and appears “If it to the board pardons wife. Bennett, Appellants husband Pat report as of Pardons and Paroles paroles, department Board sued the corrections, well as the individual members as entity, the application re- appellees in this who are for a prisoner parole, release on view. is reasonable probability there will live applicant and remain at liberty *3 for protective a motion a filed Appellees law, violating without the then the board for failure to state dismissal and for order the may authorize release of the appli- granted. can which relief be claim ” * * * upon parole. cant appellees’ motion granted court The trial and treated the mo- order protective for a 15, 1973, On December Mitchell Blazak summary as a motion for to dismiss tion the robbed Brown Fox Tucson, Tavern in 12(c) 56 to Rules and judgment pursuant during and the robbery Arizona he shot and Procedure, 16 The A.R.S. Rules of Civil the decedent, Grimm, John killed and seriously genuine there was no that court determined injured permanently appellant, and Robert de- any material fact and that as to issue Bennett. Blazak was subsequently convict- judgment against were entitled to fendants the and sentenced to death for ed murders complaint as a matter of on their plaintiffs Grimm and the bartender at the Brown that: ordered “defendants’ The court law. Blazak, 199, Tavern. v. 114 Ariz. Fox State granted and for Protective Order Motion 54 (1977). P.2d 560 judgment against have that defendants Appellants allege appellees’ that the re- Complaint, that thе Com- on their plaintiffs of Blazak was in of the lease violation stan- the with on merits and plaint be dismissed 31-412, “in supra, excess of § dard A.R.S. defendants, against as and prejudice appellee legal authority” the recover their costs in- have and defendants “grossly negligent evidencing and members Appellants appealed action.” curred in this and disregard rights for the safe- reckless The Court judgment. Appeals, the from public.” Appellants argue the ty of Two, judgment of the Division affirmed negligence support facts Court, 591, Ariz.App. P.2d certain Superior 26 550 Blazak was released from of a for claims: Mitchell (1976). After denial motion 637 petition for rehearing, filed Arizona after aрpellants completing State Prison Ap- opinion of Court The of the sentence im- approximately review. one-third trial judgment The of the peals is vacated. robbery on him armed and assault posed for and remanded. is reversed court criminal intent to kill. His record 1961, minor, when, began as a he served reviewing granting of sum term in the Fort Grant Industrial School evi this Court views the mary judgment, was burglary. In 1964 he sentenced to for most to the light favorable dence in 1965 he burglary for and was prison is, we will alle accept appellants; prison for violation. returned On complaint as true. being gations 9, 1966 he was released and in September 361, Ariz. P.2d Kelly, v. Cavanagh marijuana January 1967 was arrestеd for Co., Harbour Reliable Ins. (1956); eventually arrest which led possession. facts, P.2d 220 Ariz. April on question occurred review, as purposes of viewed for possession, charges marijuana on prior to December Sometime follows: robbery and with intent to assault armed the Arizona appellees, and psychiatric evaluations sev- kill. After Paroles, one and released Pardons Board of periods spent Hospital, eral in the State he from the Arizona Blazak Thomas Mitchell prison. was convicted and sentenced of his sentence. expiration before Prison As additional support allegation for their sets forth the criterion for 31-412 A.R.S. § offer in their negligence, appellants brief parole: on release taken of information from 12-821 pages several Authorization of against action eight diagnoses different reports tort or state on contract claim concerning Blazak’s mental psychiatrists having “Persons claims on contract or We will opin- summarize these condition. against state, negligence extremely dangerous Blazak “an ions. disallowed, have beén terms society should not free in person who set and conditions forth article, in this major psychological changes until some bring action thereon against the state He place.” paranoid schizophrenic is a take prosecute action to final judg- prevents him from distin- psychosis whose ment.” right wrong between guishing controlling his He conduct. has never A negligence suit adequate adjustment society made is barred State until a claim been has disal period and is any prolonged unlikely to Appellants lowed. did not fulfill the re potential has a change. He definite *4 quirement of A.R.S. § 12-821 before the During hospital stay violence. at least one present suit was filed. Their brief states abandon psychotic he his behav- seemed subsequently filed a claim which ior but reverted to such behavior after his was disallowed and then refiled suit in Su society. into We do not release back know perior Court. We have no informаtion how much of this was information available Board; about when these but actions purpose for the of were taken. If this review we will assume the information was the second suit is timely, against that suit known to the members of the Board. body State could be consolidated against suit the individual of the presented
The issues for review are: Board. The dismissal against the Board of appellants’ 1. Does failure to fulfill the Pardons and Paroles as an as a entity, State of requirements preclude 12-821 A.R.S. § body, proper was based the failure to this suit? the requirements fulfill 12-821 § A.R.S. 2. Do the Arizona Board of Pardons and seq. provisions, however, et These have no its enjoy Paroles and individual members aрplication against to suit individual the immunity absolute from civil suit for its members of the Board. grant parole? decision to only qualified 3. If the has immu- qualified immunity ABSOLUTE
nity, does that extend IMMUNITY negligent grossly or reckless release of a ground The other urged by dismissal prisoner? highly dangerous appellees claim, was failure to state a based it error for the trial court to 4. Was on their claim of absolute immunity to suit. protective motion appellees’ for a or- grant immunity This sort of is often referred to der? “quasi-judicial” as immunity it but is more
properly “public referred to as official” im- munity which they enjoy while performing 12-821 § A.R.S. discretionary functions.1 The “quasi- term against a suit Insofar as Arizona judicial” can be misleаding since this sort of (as an entity) Board of Pardons Paroles immunity has a different historical basis Arizona, against is a suit State immunity from the enjoyed by members of is a a suit 12-821 bar to A.R.S. § the judiciary. Although latter-day rea- has been com- the Board until statute plied given judges’ with. A.R.S. 12-821 reads: sons immunity are similar (at government discretionary/ministerial terial” 1. The rule is that officials duties. This usual enjoy higher ranks) immunity dichotomy See, least those been g., has often criticized. e. “discretionary” Liability Jennings, from tort for their suit Tort Administrative Offi- cers, (1937). are liable in for their functions but tort “minis- Minn.L.Rev. given officials. generally Gray, reasons for officials’ See part to the Private enjoy officials who immunity, the Wrongs Servants, of Public 47 Cal.L.Rev. almost in ad- immunity invariably are (1959). development This has occurred ex- of the positions ministrative logical —members in the context of inconsistencies and government or members branch ecutive with only cursory reasoning.3 often belong strictly do not which of bodies aspect “quasi-judicial” One immunity traditional branches of the three any clear is that it is not mandated is not immunity This official government. Constitution, but rather policy is judicial setting context of analyzed in the as given impetus. Matteo, Barr v. administrative the context but 79 S.Ct. U.S. L.Ed.2d 1434 of an setting. discretion administra- judge. By that of a is not tive official tradition, the placed trust
training and
for official immunity
Since
reasons
is not
as
judge
the same
judgment of
always
almost
discussed in
relation to
officer.
of an administrative
judicial immunity we must examine
ra-
agreed
origin
generally
It
underlying the
tionale
immunity
absolute
(as
sovereign
well as of
official
to see if it
judges
applies equally to other
partly in the
immunity) lies
maxim “the
policy
officials. The
reasons
tradi-
wrong.” Later
King can do no
the immuni-
tionally
judicial
advanced for absolute
im-
from suit
ty
sovereign
was modified
munity are:
common
Anglo-American
princi-
*5
time which would
law;
judicial
1.
other-
Save
person is above
the
ple that no
the
spent
were liable
their
be
sovereign’s
defending
officers
for
wise
suits.
liability has gradually
misconduct.2 Such
Prevent undue
2.
influence from the
until
courts
many
eroded in recent times
discоurage
of suit which could
fear-
threat
formulate the rule that
officials are
independent action.
less
from suit
for
absolutely immune
at least
deterring competent people
It is
3. Avoid
discretionary
why
acts.
unclear
it
perver-
came about since
is a
change
taking
office.
from
reasoning.
of earlier
sion
Importance
independent judici-
4.
of an
liability
potential
the
years
Over the
ary in the American scheme.
to
as it related
what
public officials
finality,
Need
absolute
5.
for
some-
“discretionary” functions became
termed
where,
disputes.
in the resolution of
equated with—the
with—almost
associated
immunity
judges.
adequate
6. Existence
traditionаl absolute
alternative
quasi-
however
so-called
recently,
procedural safeguards
Until
in
remedies
such as
general
immunity was not
immu-
judicial
change of
appellate
venue and
review.
James,
Harper
&
nity.
generally,
See
Duty
general.
7.
is owed to the
in
modern
(1956, Supp.1968). The
Torts
29§
judges
8.
toward their
Possible bias
to
has been
in the United States
trend
immunity.
more
to
own
immunity
grant more
Dicey,
authority
Jaffee,
Against
Governments
and Offi-
is
Law of
The
2.
usual
Suits
Actions,
Damage
209,
1915):
England
cers:
(8th
77 Harv.L.Rev.
Ed.
“In
Constitution
equality,
(1963).
legal
or of
universal
the idea of
subjection
classes to one law adminis-
of all
critic,
contrasting
United
States
3. One
Courts,
ordinary
pushed
has been
tered
Commonwealth trend to
trend
the British
official,
every
With us
to its
limit.
utmost
immunity,
quasi-judicial
called the
restrict
to a
or a
down
constable
the Prime Minister
immunity
argument
for absolute
taxes,
responsi-
American
is under
same
collector
“wry
fairy
story.”
horror
legal justifica-
tale and
bility
every
blend of
done without
act
for
in,
g.,
Gray, supra
any
e.
citizen.”
339.
other
at
Quoted
tion as
requiring
opinion
9.
Strickland,
Unfairness
found in Wood v.
supra,
judgment
the exercise of
to which is
which the United States Supreme Court
special
subjecting
deference and then
given
found that
school board
enjoy
personal
to
person
consequences
de-
only
a limited
to suit under 42
opinion
of another.
pending
(the
U.S.C.
so-called
“constitutional
basis,
original
reason
10. Historical
tort”)
in the context of school discipline.
lost.
which has been
can
Support
also be found implicitly in a
line of federal court decisions dealing with
deciding
apply
which of these reasons
traffic
officials,
airport
controllers.
liability
g.,
of administrative
it is
E.
Eastern
that reasons 4 and 10 are totally
clear
irrel-
Lines v. Union
Co.,
Air
Trust
95 U.S.App.
6 is
only inapplicable
Number
not
evant.
D.C.
F.2d
nom.,
cert. denied sub
actually supportive
abolishing
but is
offi-
United States
Union
Co.,
Trust
350 U.S.
immunity:
process
while certain
cial
due
76 S.Ct.
L.Ed. 799
apply
requirements
some administrative
decisions distinguish
These
between discre
actions,
major judicial safeguard
ap-
tionary decisions made at the рolicy level
is often totally lacking.
review
This
pellate
those made at
the operational
level.
lack,
fact,
major
is one of
reasons for
Immunity
granted
policy
level
growing
bureaucracy
criticism of
functions because strong public policy argu
Reason 9 is
compelling
America.
much less
apply:
ments
for example there are no reli
administrative
officials because their
criteria
able
for judging
major
policy
less
opinions receive
deference and because
decision
there is a need for fearless
basis of tort
is that
the defendant
decision-making at that
level.
subjected
personal
consequencеs
de-
upon the
pending
opinion of others as to his
itself,
statute
31-412,
A.R.S. §
actions. Reasons 1 and 5 are also less com-
quoted supra at page 1229,
provides
also
judicial
pelling outside of the
context. Rea-
holding
for our
support
partial immunity.
always applicable
7 is not
non-judi-
son
may be
Parole
authorized
appears
it
“[i]f
cial officials because there are circumstanc-
* * *
the board
there is reasona-
*6
duty
individuals,
es which narrow the
that
probability
applicant
ble
will live
the action and consequences
when
are simi-
at liberty
and remain
without violating the
non-governmental
tort,
the usual
lar to
for
* *
guidelines
These
imply that
See,
example.
g.,
е.
Fair
States,
v. United
may not be
parole
(5th
authorized if
1956).
266 Legislature may be voted out of allowing unbridled discretion without fear may judges
office —as in Arizona. Judges being held account for their actions by appellate be reversed court. every single public official who exercis- Paroles, The Board of Pardons and how- es discretion. The more power bureaucrats ever, has had no check its unbridled lives, exercise over our the more we need question arises discretion. whether some sort of ultimate responsibility to lie discretion is appropriate such unbridled in outrageous for their most conduct. There society. our modern may even be some deterrent value in hold- responsible ing officials for shocking outra- the reason a rule long When no exists, geous the rule case, er itself should be aban actions.4 In any democracy by Highway v. Arizona doned. Stone Commis very its implies definitiоn responsibility. sion, (1963). Ariz. P.2d In Laski, generally See The Responsibility of Hirst, Wilson v. Ariz. in England, the State 32 Harv.L.Rev. 447 (1948), Court extended the immunity day In this of increasing power judges judicial enjoyed by for their acts to by governmental officials, wielded absolute public performing judicial other officials nonjudicial, immunity nonlegislative of- acting quasi-judicial while in a function ca ficials is outmoded dangerous. and even applied rule has pacity. This been Arizo immunity give absolute na to officials for discretionary judicial After OF IMMUNITY DEFENDANTS —decisions. —or rule, thorough re-evaluation of we We must now quali- decide whether the it must be abandoned now hold as an fied properly enjoyed by officials Arizona, rule of law in unconditional such as board members allows liabili- Hirst, supra, as well prior Wilson v. as all ty under the circumstances this case.5 contrary, hereby over decisions For a official all, to be liable at there leaving While intact ruled. absolute duty must be a owed to the plaintiff. Then immunity enjoyed by participants
judicial required standard we now judicial proceedings, abolish the care must be immunity previously granted been absolute shown to have breached, and an injury discretionary officials func proximately caused the breach must be tions. Massengill shown. County, Yuma P.2d (1969).6 Ariz. come
We have
to this conclusion because
increasing power
bureaucra-
Massengill, supra,
we
the generаl
said
cy
society.
administrators —in our
—the
public agencies
rule for
or officials is that
authority
wielded
so-called faceless
duty
when a
owed the
then a
has often
been
bureaucrats
criticized.
*7
that duty
breach of
public,
is a
not an
Comparing
relatively small number of
individual, injury and can
only
be redressed
large
with'the
numbers of adminis-
judges
by
public
some
prosecution.
form
fearless,
trators,
idea of
unbridled deci-
cautioned, however,
there are situa-
sion-making
appealing.
becomes less
While
the public
tions in which
or
agency
official
courageous,
want
society may
and need
in-
obligation
can narrow an
gen-
owed
dependent policy
amоng high
decisions
level
a
public
special
eral
into
to an
officials,
duty
individ-
seems
government
there
to be no
indeed,
and,
great potential harm in
duty
benefit
ual and for a breach of
can
be
course, may
Legislature,
Obviously
6.
4. The
choose to
all the elements of a tort claim
officials,
might
indemnify
proved
appel-
lessen the de-
would have
at trial before
compensate
case,
but would still
terrent effect
lants could recover. The issue in this
however,
summary judgment
victim.
a
involves
duty
therefore we need deal
and the
deciding only
emphasize
standard of care.
5. We
that we
un-
are
alleged facts of
der the
this case.
damages.
g.
City
patient
E. Vеach v.
negligently
liable
by
released
the state
Phoenix,
(1967),
102 Ariz.
roles of hearing on [a] dan- highly or reckless release of a ligent commutation,” State ex rel Arizona State balance prisoner proper strikes the gerous of Pardons Superior Board and Paroles v. pub- competing interests. between Court, 77, 80, Ariz.App. 12 467 P.2d proteсtion pre- in from lic has interest (1970). Neither pertinent decision is here. dangerous prison- highly mature release of prisoner Because a right parole, has no holding public in ers as well as an interest action, other such Board and therefore the responsible outrageous conduct. officials reviewing court has no use for the informa- an interest in The Board have sought by prisoners (i. e., tion no rele- reasonable decisions.7 freedom from suit for vancy), protective a order proper. was A in a plaintiff personal injury and wrongful ORDER PROTECTIVE right lawsuit has a death to any relevant granted as the trial court appel- Insofar that information not otherwise privi- оrder on the basis of immu- protective lees’ and in this case at leged, least some of the suit, order was error. nity from sought by appellants information is clearly there is another basis for or not Whether Here appellants relevant. seek not to modi- order must be deter- issuing protective fy nor reverse the Board’s decision but to upon court remand. The by the trial mined predicate liability it, on and therefore the course, court, will make its decision of trial reasoning in the above inapposite. cases is opinion statutory as well as light of this in privileges generally appli- and common Appellees’ argument third is based discovery. cable decision, California Court Appeals of appeal case comes to us on Because Runyon v. Board of Prison Terms and Pa we do not have summary judgment, roles, Cal.App.2d P.2d 101 us which will be before the facts before all factors make Runyon inapplicable Several Nevertheless court on remand. trial the issue was here: whether certain letters ap- have raised some issues on partes documents voluntarily sent remand, again on which will arise peal required and not Board law to be sent or opinion. with them this we must deal so open were to indiscriminate inspection filed citizen; by any the court held that such order, support protective of open was not material to indiscriminate in arguments ap advance several appellees First, spection that because they argue the Board’s need for all peal. order but protective supports to suit possible information meant that much of course, longer no obtains argument, information only upon could be had Second, supra. holding of our light promise confidentiality; the court also opinions Appeals’ two Court argue that justified the trial court held was to denial prisoner’s challenges dealing with that the finding alleged peti “facts of the issue. These dispositive parole legally tion were insufficient to establish that since is a matter hоld opinions part a beneficial interest on the such right, the Board of and not grace as would entitle petitioner him to the is required Paroles is not to dis Pardons the writ suance of [of mandamus].” denying parole, Witt v. reasons its close Appellants seek spe P.2d at 102. disclosure Eyman, Ariz.App. rel. ex State cifically support their claim (1972), that courts have the P.2d and the government, confidentiality prob proceedings to de to review power presence “the or absence of due termine lem be met under the traditional infor- grace is a matter prisoner’s interests because and not 7. We make no mention right.
269 which, excep- with certain privilege public mant’s ments in offices and the best inter- tions, protects identity the of the informant Mathews, ests of the state. Editor of the generally but not the contents of the com- Star, Daily Arizona petition filed a for man- City Peterson, munication. of Phoenix v. against the seeking damus Governor the 136, Ariz.App. (1969); 8 right inspect to certain documents in the Evidence, Wigmore, (McNaughton § Governor’s office. We held that the docu- 1961). Runyon inapplicable rev. is thus to sought ments came under the “other mat- this case. provision A.C.A.1939, ters” 12-412 § ” * * * “Records to open (per- Appellees’ fourth argument subject matter now tinent covered in A.R.S. on Morgan, based United States v. 313 U.S. 39-121), and were subject 61 S.Ct. inspection by L.Ed. 1429 to Morgan Plaintiffs in сhallenged an order of any unless they citizen were “confidential Secretary Agriculture ground on the therefore privileged] or of such a na- [and given that he had not proper weight to ture that it would the best inter- (of certain facts which he had ap been permit ests of the state to a disclosure of making his prised) decision. The Court their contents.” Ariz. at 251 P.2d at Secretary held the had been responsibly 896. Whereas Mathews dealt with the these facts duly conscious and had any right documents, inspect citizen to a them, weighed and that is the extent of the subsequent Court Appeals pro- decision reviewing duty. court’s The Court held it is guidelines vided when the individual seek- probe not thе function of a court to ing discovery particularized has a interest processes Secretary; mental Sec based on tort City action. of Phoenix v. retary subjected not have been to should Peterson, supra. Plaintiff in Peterson lengthy concerning process examination sought discovery of certain information conclusion, by which he reached his includ in a Police Department contained personnel ing study the manner and extent of his his of Appeals record and consultation subor file. Court held that al- agree reasoning with this dinates. though personnel records sought were appellees. light In applicable it find confidential as to the largе, at Math- holding may the Board be held our prohibit not production ews does of at grossly negligent or reckless liable essence; plaintiff least could discover prisoner, any inquiry aof into the release reprimands and other such information of a decision is im processes mental sought which he but confidential infor- requested deposi Insofar as the proper. parts mants and irrelevant could be deleted. deliberations, inquire into the tions were These two decisions provide guid- should during and communications discussions ance to the trial court on when remand proceedings, protective restricted Board deciding whether the public interest or cоn- proper. Appellants’ inquiry would be order fidentiality mitigates against discovery in information, discovery docu limited part. or in whole reports were before the ments when made their deci As we supra, stated the trial court Blazak. sion may on remand have to determine the pro appellees argue Finally protective priety covering any order ground be a prohibiting interest discovery sought by appellants. all It is the into certain inquiry during matters dis- court, and not the Board of Pardons and citing 4 covery, Moore’s Practice Federal Paroles, who is to make the final decision (2d 1976). ¶ ed. cited 26.20 not Although privilege or confidentiality. Mathews v. Pyle, appellеes, this Court in Mathews Pyle, supra. this determination the trial P.2d (1952) Ariz. discussed docu- right inspect apply relation between court should the reasoning of this *10 statutory decision as well as and common work hardship injustice and in indi- generally applicable rules to discovery, vidual cases. But there is no middle spirit in mind the keeping and purpose of to be ground occupied matter; ei- discovery rule Rules of A.R.S. ther all of such suits are to be tolerated Procedure. Civil or none. The court may occasionally be with the
confronted
not-unusual situation
that calls for subordination of
rights
CONCLUSION
of the few to the interests of the whole
Because we hold that members of
body
public.
of the
The doctrine of im-
Board of Pardons and Paroles
have
munity is not for the benefit of the few
suit,
partial
the trial court’s
might
who
otherwise be compelled to re-
grant
summary judgment
appellees
spond
damages.
It is for the benefit
Appellants
was error.
should have a chance
that the
all to whom it applies,
to show
Board’s release of Mitchell
that
they may
Blazak was grossly negligent
Thomas
or
free to act in the
exercise of honest
well as a
prove
reckless as
chance to
judgment, uninfluenced by fear of conse-
personal injury
elements of their
suit.
other
personal
quences
themselves. This
of the
opinion
Appeals,
The
Court of
Divi
not for
аgain
personal
their
advantage
The judgment
Two is vacated.
sion
benefit.
It
or
is only
they
that
may be
court is reversed and the case is re
trial
enabled
render a
better
service.”
proceedings
consistent with this
manded
As a final we notice
indicating appellants will have to *11 the elements of a tort at trial all
prove subject has not been addressed
claim. on the we leave our comments
so shall to a proximate cause herein
problems of day.
later
I dissent.
STRUCKMEYER, J., concurring. V. C. Hays.
I concur in the dissent of Justice Babbitt,
Bruce E. Atty. Gen. William III, Schafer, Bakker, J. and Thomas G. Gen., Attys. Phoenix, Asst. appellee. Arizona, Appellee, STATE Moore, Jr., A. Phoenix, Louis appel- lant. HOLSINGER, Appellant. Louise Jeannie No. 3440. CAMERON, Chief Justice. appeal from This is an verdicts judg- Arizona,
Supreme Court of guilt ments of the crimes of murder in Banc. degree, 13-451, -452, first A.R.S. §§ April 1977. -453, 13-138, -139, -454 A.R.S. §§ -140, with a sentence impris- thereon of life possibility without onment until completion years; of 25 calendar con- degree, in the first 13- spiracy A.R.S. § 331(A), with a sentence thereon of not less 14 nor more than years imprison- than ment; burglary, degree, first A.R.S. 13- §§ 13-138, -139, -140, -302 A.R.S. §§ of not less than 14 nor more with a sentence imprisonment; years conspir- than degree, 13-331(B), acy, second A.R.S. § of not less than thereon 3 nor sentence years imprisonment. This is a more than v. Holsinger, case to State companion