Hunt v. Maricopa County Employees Merit System Commission
619 P.2d 1036
Ariz.
1980
Check Treatment

*1 regarding Guy’s stay at kept First, ing the records objects plain- fendant. defendant questioning When the nursing home. hearsay testimony Guy’s tiff’s use of the report incident Bottemiller’s roommate, deceased, to Ms. now in order turned of defend- fall, representatives Guy’s impeach one of the defendant’s witnesses. on report privileged. was this Second, argued that objects to the introduc- ant defendant trial, objec- timely over subsequent fact that defend- At the tion into evidence to read to the tion, was report concerning plaintiff ant the incident claimed deposition. of the portion Guy’s privileged. jury fall was the testi- maintained objections, plaintiff Turning the first of these nursing at mony of the director Guy the record discloses that when fell and she reviewed after deposition given care of was hip, broke his he was under the Bottemiller, aide, by Ms. Sandy report The record incident nurse’s Bottemiller. inci- directly contrary sequence testimony was dispute is in as to the exact contended up report. to this fall. In the inci- dent Plaintiff leading events the defend- nursing knew that made out the Ms. director of report day, dent next report was claiming the incident merely claimed that she had ant was Bottemiller nursing testi- the director of Guy’s privileged, walked across the room to turn down bed, trial, believed she because she during which time he fell. At fied as she did the incident impeached by memory Ms. Bottemiller claimed to have no would not be of the at all. report. incident On cross-examina- plaintiff’s

tion counsel asked the witness we presented, the circumstances Under Anderson, Guy’s whether Mr. who was was admissible believe that the evidence scene, present roommate and was testimony of credibility of the attack had warned Ms. Bottemiller that she should nursing. director of defendant’s Guy not leave unattended or that he would judgment superior of the court likely attempt fall in an to walk. punitive the award of except affirmed as to objected The defendant to cross examina- are set aside. damages which hearsay. tion in this are because called for The plaintiff urged purpose that the of the JJ., GORDON, concur. HAYS impeachment. examination was for permitted trial court the examination for

impeachment.

Impeachment upon is an attack witness, credibility of a but it is not a 619 P.2d 1036

process whereby substantive evidence is adduced. McComb, Ariz.App. Ri es v. HUNT, Petitioner, Patricia Under plaintiff circumstances the was entitled to EMPLOYEES COUNTY MARICOPA test the witness’ recollection of events COMMISSION; Ha MERIT SYSTEM which at the time the incident. occurred Officer; Merkow, Hearing and Wil rold given Great latitude is to a cross—examiner Palmer, Maricopa D. Clerk son everything slight to show in the Court, Respondents. County Superior degree credibility. est affect a witness’ No. 14573. Trotter, P.2d We find no error in the Arizona, Court of testimony. admission of the impeachment In Banc. evidentiary Defendant’s second ob 3, 1980. Nov. jection related to the trial court’s admission Dec. 1980. Rehearing Denied of the fact that defendant claimed report incident on Guy’s privileged. fall was

During pre-trial deposition, defendant’s

director of nursing questioned was concern- *2 Lubin, Stanley Lubin by

McKendree & Sass, Phoenix, petitioner. John F. Atty. Maricopa County Hyder, Charles F. Shuch, Atty., Sandy Deputy Phoenix, respondents. Stevens,

Stevens & Leibow Charles T. Phoenix, support for Arizona State Bar in of respondents. Pohlman, Meyers,

Donald D. J. Robert Uniservice, Inc., Phoenix, for Arizona support petitioner. Phoenix, Sparling,

Deedra for Communi- ty Legal in support petitioner. Services Stephen Neely, County Atty. by D. Pima Vatter, Tucson, Rita respon- in support of dents.

HOLOHAN, Vice Chief Justice. Petitioner, Hunt, by Patricia require action respondents seeks to her, D, pursuant to A.R.S. 32-261 ap- represented non-attorney in her by a Marico- peal respondent hearing before System Com- Employees Merit pa County mission. provi- is whether presented

The issue D constitute sions of A.R.S. § officer, respondent Harold hearing unconstitutional violation separation Merkow, Donnelly to powers refused to allow Mr. provision of Article III of the hearing because represent petitioner Arizona Constitution. that such officer concluded hearing The essential facts are that the would consti- resentation employed as a legal clerk in the office of practice of law. the unauthorized tute *3 Maricopa the Clerk of the County Superior adopted was hearing officer of the position respondent Court. The peti- Clerk notified regular at one of its by the Commission tioner that he taking disciplinary was action by continued hearing was meetings. The against her for insubordinate conduct. The petitioner stipulation parties of the respondent imposed four-day Clerk a sus- petition for action. to file her work, pension from extension proba- of the right Petitioner bases her claim of to be for tionary period ninety days, period and a represented provi- a on the by counseling after her return to work. sions of The material A.R.S. 32-261 D. § A timely appeal from the action taken by parts provide: of the statute employer was made respondent by 32-261. Practice of law active “§ Commission. violation; only; members classifica- There are systems three merit operating tion; exception within the Maricopa County Government. Except provided A. as in subsections systems, of the One which includes the Su- D, C and practice shall law in Office, perior Court Clerk’s Maricopa is the this state unless he is an active member County Judicial System Merit which was of the state bar in good standing as by created adopted resolution by the chapter. defined in this Judges Superior of the Court for Maricopa County on June 1975. Maricopa D. An

County employee may represent of Supervisors, Board on him- August designate self or accepted representative, Judges resolution not necessarily attorney, agreed system any and to administer the as before board part hearing any or Maricopa County Employees quasi-judicial Merit hearing dealing matters, System and the Maricopa providing Commission that no fee charged any be Department. serv- County Personnel ices rendered in connection with such of the Judges Pursuant to the resolution by hearing any designated repre- such by Super- the Board of agreement and the sentative not admitted to visors, appeals disciplinary by from actions practice.” employees judiciary within the would be We limit our consideration to subsection by heard the Maricopa County Employee D of the upon statute. We are not called Merit System Commission. decide the constitutionality of subsection C The appeal by petitioner from the disci- purports permit corporate officers plinary accepted by action of the Clerk was corporations justice their Commission, appeal and the was as- police and courts. A similar statute has signed for hearing hearing to a officer des- been declared unconstitutional the Cali- ignated by the Commission. Prior to fornia Court. Merco Construction date, hearing petitioner advised the Com- Court, Etc., Engineers, Municipal Inc. v. D, pursuant mission that A.R.S. § Cal.Rptr. Cal.3d represented hearing wanted Donnelly, person lawyer Mr. Tom not a outset, representative hesitancy but a of the American Fed- At the we have no State, Municipal stating practice eration of Em- of law is union). authority of ployees (petitioner’s Donnelly exclusively Mr. within the represen- Judiciary. was not The determination of who charging any fee for his (cid:127) law in Arizona and under petitioner. practice tation of shall what condition is a placed by petitioner’s function is contention that the es- state constitution in this court. In See re system county tablishment of a merit Miller, 29 Ariz. 244 P. 376 In re rights which employees created substantive Bailey, 30 Ariz. 248 P. 29 were not existence before statute. Bar of Arizona v. Land Arizona Title & by the passed Legis- 32-261 D was A.R.S. § Co., Trust 366 P.2d 1 (1961). subsequent lature the enactment of the principle no means limited to this maintains that system, petitioner merit fact, In jurisdiction. great weight employees protect- the statute was to aid is in authority proposition accord with the system. merit rights ing their under the ultimate authority for defining, addition, argues under regulating controlling relating statutes A.R.S. 12-111 all in the Judiciary. law is vested See Merco procedure become pleading, Engineers, Municipal Inc. v. Construction court, until rules of effective modified Court, Etc., supra; Petition of Tennessee *4 by this suspended by promulgated rules Association, (Tenn. Bar 532 224 S.W.2d court. 1975); 630, In re Senate Bill No. 164 Mont. 366, (1974); 523 P.2d 484 Title Land Co. of Blazak, this court supra, v. con- In State Porter, Alabama v. ex 292 State rel. Ala. practice procedural legisla- the of demned 691, (1974); 289 v. 299 So.2d McKenzie Bur- infringing of potential tion because its ris, 330, (1973); 255 Ark. 500 357 S.W.2d granted authority to on the constitutional Examiners, v. Law Feldman State Board of the court ac- Judiciary; the nevertheless (8th 1971); Virginia 438 F.2d 699 West Cir. issue in rules at Blazak cepted statutory the Earley, Bar v. 144 W.Va. 109 State effect, petitioner In asks as rules of court. Tod, (1959); v. 349 420 Hoffmeister S.E.2d in same course the that we follow the case (Mo.1961). 5 S.W.2d at issue. petitioner We note that concedes argument accept not the of peti- We do agen practice that before an administrative question is merely that the statute in tioner law, we cy practice is the of for as said in supplement procedural rule to the sub- Bar Land State of Arizona v. Arizona Title right created A.R.S. 11-351 et § stantive Co., of supra, practice & Trust the law Merit Employee System. the seq., includes: D 32-261 provisions The of A.R.S. are not § preparation for another matters [T]he system. merit county limited courts, agencies administrative apply broadly section to provisions judicial quasi-judicial other or bodies and any quasi-judicial hearing or “any board representa-

officials as well as the acts of body personnel tion of another such a hearing dealing before with matters.” 90 366 P.2d 1. officer.” Ariz. at if argues that even statute Petitioner Florez position was reaffirmed in v. practice laymen to said to allow may be Glendale, 105 City Ariz. 463 P.2d 67 law, accept leg- we should nevertheless (1969). question and authorize islative enactment argues Petitioner that this court should not admitted to the of law persons representation uphold and enforce the represent mat- to individuals D because A.R.S. ters. past has in the held that would court petitioner support position, proce- rules of accept legislatively enacted always recog- that law has points out new designed supplement which are dure how person, inept, no matter nized that Purcell v. rights. ex rel. substantive State proceed- any legal may represent himself Court, 224, 485 P.2d 549 Superior for a including a trial serious ings criminal Blazak, Ariz. 462 105 California, 422 U.S. offense. Faretta Maricopa County, P.2d 84 Matter of L.Ed.2d 562 S.Ct. JS-834, Ariz.App. No. Juvenile Action give often The economics of the situation P.2d 580 person no choice but self-representation. respondents by point- Petitioner answers notes, petitioner provided by As out all ing protections amount of financial meaningless are if a regulated profession which petitioner loss will suffer under the representation. can’t afford such employer’s disciplinary action is a sum less contends that it would benefit her and She than of an attor- employment $100.00. they if public other members of the could ney investigate, try, argue mat- have all help have some even if it didn’t ter far petitioner’s would exceed loss. This safeguards representation associated economic fact of life leaves attorney. a licensed alternative but self-representation which she concedes would representa- be unskilled problem presented is a difficult one tion indeed. involving balancing objectives. of social carry responsi- This court wishes to out the points Petitioner out that her union bility placed by the state constitution on us resentative is skilled in this field of regulate pro- law for the employer-employee argues relations. She public. tection of the We also con- illogical support concept it is competent rep- cerned individuals have that an individual has the right available to defend their inter- resentation herself, no matter how incompetently, but est. The Minnesota Court Co- another, not receive aid from more Nelson, wern v. 207 Minn. 290 N.W. she, competent than pro- not a licensed 795, presented the issue in these words: Weckstein, fessional. See Limitations on duty regu- “It is the of this court so the Right to Counsel: The Unauthorized *5 late the of law and to restrain Law, Practice of 1978 Utah L.Rev. 649. practice by laymen such in a common that urges jus- Petitioner it is essential to way protect sense in order to primarily tice and fairness that there abe relaxation the interest of the public and not ham- to deny of a rule which totally would per and burden such interest with im- non-lawyer representation. practical technical restraints no matter Respondents point supported out that how well competency in such restraint be standpoint from the specialized pure logic.” a limited and of field is not the sole test be to used this court. This court’s theory Under the of comity, the Minneso- safeguard role is to public the from harm Court, Cowern, ta upheld in the associated with unqualified representation. provisions of a statute permitting brokers Competency of representation is important. to draw documents incidental to real estate An attorney pass must an examination be- they in which agents. transactions acted as fore may represent he members of pub- the made change Minnesota court one in lic. There provided is no test to test the the charge statute-the brokers could not competency lay representation. of preparation. In addi- for the document tion, representation by attorney an also in- instances, In two other other courts from volves the protections provided by enforce- upheld statutory provisions states have ment of ethical standards established for which non-lawyers perform allowed to se- client, the benefit of the enforced prac- lected activities that constituted the disciplinary system under the control of the 193, tice of law. Dinger, State v. 14 Wis.2d courts. The client also has the benefit of a 109 N.W.2d 685 Denver Bar Associ- statutory privilege protects the com- Commission, ation v. Public 154 Utilities munications between attorney and client. Colo. 467 For a num- 391 P.2d standards, The ethical discipline, training, years Judiciary ber of the of has California placed and controls on lawyers is lacking in lay representation in of claimants representation the case of by a layman. It Compensation Hearings. Workmen’s See is safeguard this concern to public, the not Eagle Indemnity v.Co. Industrial Accident to aid the legal profession, which must Commission, 217 18 Cal. P.2d 341 guide the court. Reed, Cal.App.2d Bland 261

264 that involved. I am concerned (1968). In the cases fee is Cal.Rptr. cited bound persons to the bar nor not admitted been the effort the central theme has of as members same conduct code of public between need and achieve a balance discipline subject to and not the bar public protection. decision, permit- now, by this this court weighing considering and After a limited basis. even on ted to law by the arguments presented the various State, Ariz. Hackin curiae, we have parties and amici deter 143, 88 S.Ct. dismissed 389 U.S. appeal mined it is in interest for us public that reh. U.S. (1967), den. 389 19 L.Ed.2d 347 provision adopt part legislative L.Ed.2d 88 S.Ct. representation of lay issue to allow Donnelly, Mr. imply that Tom I do not deal employees hearings in administrative case, is representative this the union under fol ing matters with It morally any way ethically or deficient. 1) lay representation lowing conditions: noted, however, Donnelly, the Mr. is that fee; 2) the sub must without provided be her, is represent person petitioner wished hearing must have a ject Federa- representative of the American value amount insufficient represent State, Municipal Em- tion attorney, anof employment to warrant to as- If this union wishes ployees Union. representation be lay no event shall in these matters before sist its members permitted or amount involved if value Commission, commendable $1,000.00. permission grant exceeds so, they do it seems me wish to they will with lay representation for limited be expense, could, much additional without too experience drawn should results purpose. attorney for employ against representation prove such is not so of this court result of decision also be public interest. must noted assist- with the provide individuals much grant permission lay representa them ance of provisions tion affect the does not of A.R.S. Commission, but their before the 12-2234 which makes communications be employing an attor- dispense with union to attorney privileged. tween and client provide its members and instead ney for representative is not an within representation. The non-attorney legal *6 12-2234, so the means of A.R.S. there in such a scheme for mischief opportunity privilege protect no the confi statutory result. may benefits that outweighs any far dentiality of communications between

employee representative. and his respondents directed allow represented by a

petitioner to be non-law-

yer pending hearing. in the STRUCKMEYER, J., and HAYS C. WOLFE, Randy In the Matter of JJ., GORDON, concur. Petitioner, CAMERON, Justice, dissenting. opinion

I portion dissent from that GENERAL MARICOPA COUNTY which would admit non-law- decision HOSPITAL, PSYCHIATRIC be- of the law ANNEX, yers to the limited Respondent. Employees Merit Maricopa County fore the No. H-807. System Commission. Arizona, Court course, is, to rule tempting Banc. suf- controversy is not when the amount 12, 1980. Nov. ficient to make retention feasible, anybody may then financially unqualified how

resent a be, long as as attorney”

the “volunteer