City of Tucson v. Superior Court, In and For Pima County, Division VI

• Decision Date: 23 January 1976
• Docket Number: No. 2,CA-CIV,2
• Citation: 544 P.2d 1113,25 Ariz.App. 512
• Parties: The CITY OF TUCSON, a Municipal Corporation, and William G. Shoemaker and James M. Coburn, Petitioners, v. SUPERIOR COURT, IN AND FOR the COUNTY OF PIMA, DIVISION VI, Respondent, and John A. VEGA, a single man, Real Party in Interest. 2072.
• Court: Arizona Court of Appeals

Page 1113

544 P.2d 1113

25 Ariz.App. 512

The CITY OF TUCSON, a Municipal Corporation, and William G. Shoemaker and James M. Coburn, Petitioners, v. SUPERIOR COURT, IN AND FOR the COUNTY OF PIMA, DIVISION VI, Respondent and John A. VEGA, a single man, Real Party in Interest.

No. 2 CA-CIV 2072.

Court of Appeals of Arizona, Division 2.

Jan. 23, 1976.

Lesher, Kimble, Rucker & Lindamood, P.C., by Michael J. Gothreau, Tucson, for petitioners

Abruzzo & Wasley by Gregory G. Wasley, Tucson, for real party in interest.

OPINION

HATHAWAY, Judge.

The real party in interest brought suit against the petitioners on June 17, 1975, alleging that he was assaulted and beaten by the petitioners Shoemaker and Coburn, officers of the Tucson Police Department, while they were in the course and scope of their employment. The complaint further alleged that at the time of the assault the City of Tucson knew or should have known of vicious propensities on the part of the police officers and that therefore the city was negligent in retaining them in its employ.

Real party in interest served on petitioners a set of interrogatories and a request to produce documents, and subsequently served supplemental interrogatories and a supplemental request to produce documents. Petitioners refused to answer a question in the original set of interrogatories and request to produce and refused to answer all but one question in the supplemental interrogatories. The real party in interest filed a motion to compel discovery which was granted by the respondent court. We are presented here with appropriate circumstances for appellate intervention by way of special action, and we therefore assume jurisdiction.

The specific order which is being challenged as an abuse of the respondent court's discretion is its order compelling the petitioners to answer the supplemental interrogatories. The supplemental interrogatories contained subquestions 50 thru 50(e). The interrogatories and the answers given by petitioners are as follows:

'50. Have any complaints, other than plaintiff's, ever been filed with the Tucson Police Department which arose out of the actions of William G. Shoemaker or James M. Coburn, prior to February 6, 1975, as police officers for the City of Tucson.

(Answer): Irrelevant (answer given by petitioners).

If so, state:

(a) The name if (sic) each person against whom complaint has been filed and the number of complaints filed against each person.

(b) The date each complaint was filed.

(c) The substance of each complaint.

(d) The findings of any investigation by the Tucson Police Department regarding such complaints.

(e) The substance and findings of any disciplinary proceedings conducted by the Tucson Police Department regarding such complaints.

(Answer): Defendants will furnish this information. (Answer given by petitioners).

You are requested to produce for inspection and copying any and all written reports and/or complaints related to any disciplinary proceedings mentioned in your answers to the foregoing Interrogatories.

Refuse (Answer given by petitioners).'

We do not accept petitioners' argument that the documents in question, contained in the police department's internal affairs division files, are privileged and therefore not subject to discovery in a case such as this. The reasons given by Division One of this court in its discussion of personnel files in City of Phoenix v. Peterson, 11 Ariz.App. 136, 462 P.2d 829 (1969), are equally applicable in the instant case. The records may be confidential as against the public at large, but inspection must be allowed to the plaintiffs in such an action if they are to compile data necessary to proving their case.

In Peterson, the court did not follow the rule as set down in Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952), which held that the editor of a newspaper could see a report submitted by the Attorney General to the Governor '. . . unless they (the documents comprised in the report) are confidential or of such a nature that if 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 held that a final determination of the existence of the privilege claimed would be by the court in a 'private examination.' In Peterson, the court found commendable the result reached in Minneapolis Star and Tribune, Co. v. State, 282 Minn. 86, 163 N.W.2d 46 (1968), which allowed an inspection presided over by the trial court so...