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

• Decision Date: 07 February 1991
• Docket Number: No. CV-90-0182-PR,CV-90-0182-PR
• Citation: 167 Ariz. 513,809 P.2d 428
• Parties: CITY OF TUCSON, et al., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, Honorable J. Richard Hannah, a judge thereof, and Carmen Dolny, real party in interest, Respondents.
• Court: Arizona Supreme Court

Page 428

809 P.2d 428

167 Ariz. 513

CITY OF TUCSON, et al., Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, Honorable J. Richard Hannah, a judge thereof, and Carmen Dolny, real party in interest, Respondents.

No. CV-90-0182-PR.

Supreme Court of Arizona, In Banc.

Feb. 7, 1991.

Gabroy, Rollman & Bosse, P.C. by John Gabroy and Lyle D. Aldridge, Tucson, for petitioners.

Stompoly & Stroud, P.C. by Don Awerkamp and Mary J. Ryan, Tucson, for respondent Dolny.

OPINION

GORDON, Chief Justice.

The City of Tucson (City) petitioned for review of the court of appeals' decision declining to accept jurisdiction over the City's special action. Because the issue presented is a pure issue of law that is of statewide significance, we accepted jurisdiction to determine whether communications submitted to a city commission created to make recommendations to the mayor and city council regarding the selection and reappointment of city magistrates are privileged from disclosure in a civil action brought by a former magistrate who was not reappointed. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3), and Ariz.R.Sp.Act. 8, 17B A.R.S.

FACTUAL AND PROCEDURAL BACKGROUND

The City has a Magistrate Merit Selection Commission (Commission) comprised of four lawyers and five public members from the two major political parties. The Commission reviews the applicants for appointment and reappointment to the city court, and makes recommendations to the Mayor and City Council (Council). In doing so, the Commission seeks comment from persons and agencies having frequent contact with the city court, including the police department, the prosecutor's office, and law firms providing criminal defense services. The Mayor and Council have discretion either to adopt or disregard the Commission's recommendations.

The real party in interest, plaintiff Carmen Dolny (Dolny), was a city magistrate who applied for reappointment in 1988. In accordance with its usual procedure, the Commission solicited comment from persons and agencies having frequent contact with the city court. The Commission recommended against Dolny's reappointment, and the Mayor and Council appointed another person. Dolny then filed a civil rights suit in federal district court, but the suit was dismissed because the court determined, among other things, that Dolny had no protected property interest in continued employment.

Dolny then filed this lawsuit in state superior court. Her complaint alleges that (1) defendants breached an employment contract and tortiously discharged her, (2) certain defendants defamed her by making untrue statements to the Commission, (3) defendants violated the open meeting laws, and (4) certain defendants tortiously interfered with her employment. The City filed a motion for summary judgment, which apparently still awaits disposition by the trial court.

At issue here are Dolny's discovery requests. She requested oral communications regarding her performance as a magistrate, specifying the date and time of each communication, the name, address, and phone number of each person communicating, and the substance of each communication. She also requested all documents written about her to and by the defendants, all files they maintained on her, all documents concerning her performance, and all documents concerning the appointment of city magistrates within the last three years.

The City asserted that the communications submitted to the Commission were confidential, and that disclosure would destroy the Commission's ability to obtain comments in the future. Dolny moved to compel production of the requested documents and communications, and the trial court ordered disclosure. The City then petitioned for special action relief in the court of appeals, but the court declined to accept jurisdiction.

DISCUSSION

The only issue raised in the petition for review is whether communications submitted to the Commission are privileged from disclosure in a civil action brought by a former magistrate. Despite not stating it as an issue for review as required by Rule 23(c) of the Arizona Civil Appellate Procedure Rules, 17B A.R.S., the City also argues that we should recognize an absolute privilege against defamation actions for communications to the Commission similar to the absolute privilege our court of appeals has already recognized for reports to the Commission on Judicial Conduct (formerly the Commission on Judicial Qualifications), Bailey v. Superior Court, 130 Ariz. 366, 636 P.2d 144 (App.1981), and for reports to the State Bar concerning the conduct of an attorney, Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (App.1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981). Dolny, in response, concedes that the communications at issue are conditionally privileged, but argues that the public's interest in the free flow of information to the Commission is not strong enough to justify an absolute privilege. Dolny also argues that even if we recognize an absolute privilege against defamation actions, this does not necessarily mean that submissions to the Commission should be privileged against disclosure.

The court of appeals declined to accept jurisdiction because the "sole issue ... presented to us [is] whether an evidentiary privilege prevents in all circumstances disclosure of communications to the Tucson City Magistrate Merit Selection Commission, and not whether there is an absolute privilege defense to a defamation action for those defendants against whom such a claim has been made...." We agree that the sole issue presented for review is whether an evidentiary privilege exists. Therefore, we leave for another day a decision on whether those providing information to the Commission enjoy an absolute or conditional privilege against defamation actions.

We turn now to the issue properly raised in the petition for review. The City argues that the materials submitted to the Commission should be privileged from disclosure and that this court has consistently recognized the need for confidentiality by requiring that material submitted to other commissions evaluating judicial applicants be kept confidential. See Rules of Procedure for the Commission on Judicial Conduct, Rule 5, 17B A.R.S.; Rules of Procedure for Judicial Nominating Commission on Appellate Court Appointments, Rule 3(d), 17B A.R.S.; Rules of Procedure for Judicial Nominating Commission on Maricopa County Superior Court Appointments, Rule 3(d), 17B A.R.S.; Rules of Procedure for Judicial Nominating Commission on Pima County Superior Court Appointments, Rule 3(d), 17B A.R.S. Dolny argues, however, that no constitutional provision, statute, procedure, rule, or policy supports a privilege for communications to the Commission. ¹ The City counters that, even if no statute or rule of procedure supports such a privilege, Rule 501 of the Rules of Evidence does. We agree that Rule 501 supports a privilege.

Rule 501 provides:

Except as otherwise required by the Constitution of the United States, the Constitution of Arizona, or by applicable statute or rule, privilege shall be governed by the principles of the common law as they may be interpreted in light of reason and experience, or as they have been held to apply in former decisions.

Ariz.R.Evid. 501, 17A A.R.S. The Arizona version of Rule 501 is very similar to Rule 501 of the Federal Rules of Evidence. ² Thus, United States Supreme Court interpretations of the federal version of Rule 501 are persuasive, but not binding upon us, in interpreting Arizona's version.

The Supreme Court recently discussed the general principles relating to the creation of a privilege under Rule 501:

We do not create and apply an evidentiary privilege unless it "promotes sufficiently important interests to outweigh the need for probative evidence...." Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980). Inasmuch as "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that 'the public ... has a right to every man's evidence,' " [citations omitted] any such privilege must be "strictly construed." 445 U.S., at 50, 100 S.Ct., at 912.

Moreover, although Rule 501 manifests a congressional desire "not to freeze the law of privilege" but rather to provide the courts with flexibility to develop rules of privilege on a case-by-case basis, id., at 47, 100 S.Ct., at 910, we are disinclined to exercise this authority expansively....

University of Pa. v. EEOC, 493 U.S. 182, ----, 110 S.Ct. 577, 582, 107 L.Ed.2d 571 (1990).

After discussing these general rules, the Court held that a university does not enjoy a privilege against disclosure of peer review materials that are relevant to charges of racial or sexual discrimination in tenure decisions. Dolny argues that the information sought in University of Pennsylvania is similar to the information sought here, and that Dolny's claims, as did the claims in University of Pennsylvania, outweigh the asserted need for confidentiality. We disagree.

We believe that University of Pennsylvania is distinguishable for several reasons. First, one factor leading the Court to its decision in University of Pennsylvania was that "Congress has considered the relevant competing concerns but has not provided the privilege itself." Id. at ----, 110 S.Ct., at 582. Here, however, no evidence exists that either the courts or the legislature have considered the need for a privilege in connection with a city commission. Second, the Court in University of Pennsylvania reasoned that the Equal Employment Opportunity Commission's objective of "ferreting out this kind of invidious [racial and sexual] discrimination is a great if not compelling governmental interest ..." that requires disclosure. Id. at ----, 110 S.Ct., at 584. Here, however, we believe that a private litigant's interest in disclosure of communications to the...