City of Phoenix v. Peterson

• Decision Date: 18 December 1969
• Docket Number: CA-CIV,No. 1,1
• Citation: 11 Ariz.App. 136,462 P.2d 829
• Parties: CITY OF PHOENIX, a municipal corporation, and W. Eugene Scott, Petitioners, v. The Honorable Howard V. PETERSON, Judge of the Superior Court of Maricopa County, State of Arizona; Tony Dauksis and Georgiana Dauksis, husband and wife, Respondents. 1223.
• Court: Arizona Court of Appeals

Page 829

462 P.2d 829

11 Ariz.App. 136

CITY OF PHOENIX, a municipal corporation, and W. Eugene Scott, Petitioners, v. The Honorable Howard V. PETERSON, Judge of the Superior Court of Maricopa County, State of Arizona; Tony Dauksis and Georgiana Dauksis, husband and wife, Respondents.

No. 1 CA-CIV 1223.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 18, 1969.

O'Connor, Cavanagh, Anderson, Westover Killingsworth & Beshears, by Ralph E. Mahowald, Jr., Phoenix, for petitioners

Green & Berman, by David M. Berman, Phoenix, for Tony Dauksis and Georgiana Dauksis.

PER CURIAM:

The City of Phoenix and one of its policeman-employees, William Eugene Scott, petitioners, seek issuance of an original writ of prohibition to prevent enforcement of certain portions of a subpoena duces tecum directed to the Custodian of Records of the Phoenix Police Department, the deponent in a pretrial discovery proceeding in an action pending in the Superior Court. The petitioners, defendants in the trial court, contend that the Custodian should not be required to produce two classes of documents: (1) Police Department records of reprimands or disciplinary proceedings involving Officer Scott; (2) recorded statements by other police officers who were present during the allegedly tortious event in question. We will, for convenience, consider the two classes of documents separately.

RECORD OF DISCIPLINARY PROCEEDINGS

The petitioners are defendants in an action commenced in the Superior Court by Tony and Georgiana Dauksis, the respondent real parties in interest. The Dauksis' complaint, as capsulized by the petitioners here, charges 'false arrest, false imprisonment, malicious prosecution and assault and battery,' all arising out of an incident in which Officer Scott took the respondent Tony Dauksis into custody. While the complaint does not in explicit terms set forth the basis for imposing liability on the City of Phoenix, the employment relationship of Officer Scott is alleged and admitted and the principle of respondent superior is apparently assumed by both parties to be the only basis in the complaint for such liability.

The respondent-plaintiffs (hereinafter plaintiffs) served a set of interrogatories upon petitioners. One of the interrogatories, No. 105, sought the following information:

'105. Were any complaints ever made against William Scott in his capacity as a police officer of the City of Phoenix?

a) If so, describe in detail the complaint and by whom made.

b) Were any disciplinary proceedings brought against William Scott by the Phoenix Police Department?

c) What was the nature of the proceedings?

d) What was the result of these proceedings?'

This interrogatory was answered by the petitioners jointly in the following manner:

'105. There have been no complaints made against Officer Scott by citizens of the City of Phoenix. From 1962 through the present Officer Scott has received several reprimands for sundry reasons none of which are material or relevant to this lawsuit or to the issues in this lawsuit.'

Thereafter, plaintiffs gave notice that they would take the deposition of the Custodian of Records. The subpoena duces tecum here in question was served upon the Custodian, commanding him to produce at the deposition the complete departmental record of reprimands and disciplinary proceedings involving Officer Scott. The petitioners moved for a protective order or to quash the subpoena, asserting privilege and lack of good cause. Plaintiffs had not at the time taken the deposition of Officer Scott, and they did not file an affidavit setting forth their reasons for seeking production of the records. At the hearing on petitioners' motion, however, counsel for plaintiffs stated that he wished to see the record of disciplinary proceedings in order to help ascertain whether the complaint should be amended to state an independent cause of action against the City of Phoenix, based upon a charge of negligence in maintaining an allegedly unfit police officer. Counsel also pointed out in this connection that certain answers by Officer Scott to the interrogatories revealed that he had been engaged in two unofficial altercations, one prior to the incident which is the subject of plaintiffs' complaint.

The trial judge denied petitioners' motion, thus setting the stage for the original application now before us. ¹ Plaintiffs subsequently took the deposition of Officer Scott. The deposition is not presently available, but in an affidavit filed in this court, counsel for plaintiffs states that Officer Scott was able to recall the details of only two out of 'several' reprimands. Two days after the hearing in that trial court plaintiffs filed a motion to amend their complaint to add a Count Three alleging that the City of Phoenix '* * * knew or had reason to know that William Eugene Scott was unfit to be employed * * * as a police officer * * *', and that City of Phoenix was '* * * grossly negligent in failing to terminate the employment relationship * * *' which allegedly placed Scott in a position to act maliciously, oppressively, and wrongfully toward the plaintiffs. The trial court had not passed upon the motion to amend the complaint at the time the cause was submitted to us.

This court has the power to issue a writ of prohibition to prevent enforcement of an unauthorized and nonappealable discovery order. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1 (1958); Kirkpatrick v. Industrial Commission, 10 Ariz.App. 564, 460 P.2d 670 (filed November 10, 1969). The power, however, is to be exercised only in 'rare' cases, as a matter of sound discretion according to the nature and circumstances of the case. Zimmerman v. Superior Court, 98 Ariz. 85, 87, 402 P.2d 212, 213 (1965).

Privilege and lack of 'good cause shown' are the issues raised by petitioners with respect to the disciplinary records. On the question of privilege, petitioners have in their argument laid heavy stress on the confidential nature of 'personnel files' in general and police personnel files in particular. This argument is too broad, however, both for the authorities that petitioners rely upon, ² and for the facts of this case. While we have found some authority which alludes to the confidential nature of personnel files, ³ there is no occasion for us to determine in this case whether personnel files generally may or may not have a privileged status, because the plaintiffs here do not seek production of the Police Department's 'personnel file' on Officer There is no statute in Arizona which establishes a privilege for official documents. Udall and Wigmore would, generally at least, deny a common law privilege for such documents unless they rise to the level of 'secrets of state.' Udall, Arizona Law of Evidence (1960), Section 102, at 187 ⁴; 8 Wigmore on Evidence (MacNaughton Rev.1961), Section 2378. McCormick, on the other hand, states his belief that most American courts would adopt the English view that a privilege will be found to exist independent of statute whenever disclosure would be injurious to the public interest. McCormick, Evidence (1954), Section 144, at 303--304.

Scott as such. They seek only a record of disciplinary proceedings. While petitioners state that these records are part of the Department's personnel file on Officer Scott, there is no suggestion that it is an inseparable part.

A measure of privilege was recognized for official documents in Arizona in Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952). The petitioner in mandamus in Mathews was the editor of a newspaper, seeking the right to inspect a report by the attorney general to the governor. Our Supreme Court held that the editor could see the report '* * * unless they (the documents comprising the report) are confidential or of such a nature that it would be against the best interests of the state to permit a disclosure of their contents.' 75 Ariz. at 80, 251 P.2d at 896. The court also held that a final determination of the existence of the privilege claimed would be by the court in a 'private examination.'

Granting that the records in question here are confidential, as against the public at large, we do not think that the rule in Mathews can be applied in a manner which would bar production of at least their essence here. The gravamen of petitioners' public policy argument, in reliance upon the authorities set forth in footnote 2, supra, is that the names of any persons who may have communicated confidentially with police officials in connection with a disciplinary or similar matter should be kept secret. We note in that regard that plaintiffs' counsel has indicated before us that plaintiffs are not interested in ascertaining the identity of any complainants, but only the fact, nature, and outcome of disciplinary proceedings. Given these circumstances, we find commendable the result reached in Minneapolis Star and Tribune Co. v. State, 282 Minn. 86, 163 N.W.2d 46 (1968), cited by petitioners, in which it was held that one seeking information concerning disciplinary proceedings involving a doctor before a state medical board could have access to records showing the cause, nature and disposition of the disciplinary proceedings, but not to materials showing confidential communications from patients or other informants or to board minutes reflecting board deliberations. The trial judge was given authority to supervise the inspection in the event of any dispute. We see no reason why the same principles could not be applied here, affording the City the right to delete in some manner any references to confidential communicants, and if necessary other irrelevant portions of the attached personnel file, subject to court supervision in the event of dispute.

We turn now to good cause. Petitioners correctly point out that the requirement of good cause, though not stated as in Rule 34 of our Rules of Civil Procedure, 16 A.R.S., is read into the subpoena...