Sanchez v. Coxon, CV-92-0165-PR

CourtSupreme Court of Arizona
Citation854 P.2d 126,175 Ariz. 93
Docket NumberNo. CV-92-0165-PR,CV-92-0165-PR
PartiesFred SANCHEZ and Nora Sanchez, husband and wife, Petitioners, v. The Honorable Franklin D. COXON, a Judge for the Superior Court of the State of Arizona, County of Pinal, Respondent, and Oscar S. SKINNER and Jeffrey A. Baugher, Real Parties in Interest.
Decision Date20 May 1993

FELDMAN, Chief Justice.

This petition for review seeking special action relief 1 asks us to decide whether the trial court erred when it found that a town councilman's statements were not protected by an absolute legislative immunity. 2 Ariz.R.P.Spec. Act. 3.


On September 5, 1990, the town council of Mammoth, Arizona, held a regularly scheduled meeting. During this meeting, but apparently while no legislation was proposed, pending, or contemplated, Councilman Fred Sanchez criticized the Mammoth Chief of Police and another police officer. We do not quote his statements (which allegedly were false and made with knowledge of their falsity). In substance, however, the statements were that the officers did not attempt to prevent an alleged confrontation between the Mayor and Councilman Sanchez, that the officers were fingering their pistols during this confrontation, that the officers were insubordinate, and that there had been numerous complaints about the officers' conduct on previous occasions.

The police officers brought a defamation action against Sanchez and his wife (collectively "Petitioners"). Petitioners moved alternatively to dismiss or for summary judgment, arguing, inter alia, that an absolute legislative immunity protected the statements. The trial court denied these motions. Petitioners sought special action relief from the court of appeals. That court declined jurisdiction, and Petitioners filed a petition for review with this court. We granted review of the following issues:

1. Whether Arizona recognizes an absolute legislative immunity for city and town council members.

2. Whether Arizona recognizes an absolute legislative immunity for a legislator speaking to a legislative body during a formal legislative meeting.


Appeal after entry of judgment typically is the proper method to challenge the denial of a motion to dismiss or for summary judgment. United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). Special action petitions used as interlocutory appeals are discouraged. Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 40 & n. 3, 796 P.2d 470, 472 & n. 3 (1990). This court, however, has discretion in deciding whether to accept special action jurisdiction. State Comp. Fund v. Symington, 174 Ariz. 188, 191, 848 P.2d 273, 276 (1993). We decide whether to accept jurisdiction independent of the court of appeals' determination. See Collins v. Superior Court, 158 Ariz. 145, 145, 761 P.2d 1049, 1049 (1988); Bates v. Superior Court, 156 Ariz. 46, 48, 749 P.2d 1367, 1369 (1988).

Although the parties agree that we should accept jurisdiction, we must independently determine whether special action jurisdiction is appropriate. Maricopa County v. Superior Court, 170 Ariz. 248, 250-51, 823 P.2d 696, 698-99 (Ct.App.1991). Numerous factors favor accepting jurisdiction in this case. The issues presented have statewide importance, Bledsoe v. Goodfarb, 170 Ariz. 256, 258, 823 P.2d 1264, 1266 (1991), are pure questions of law, State Comp. Fund, 174 Ariz. at 192-193, 848 P.2d at 277-278, and are issues of first impression for this court, Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22 (1992). Our decision on the merits terminates the litigation, Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 210, 841 P.2d 198, 205 (1992), and declining jurisdiction would require Petitioners to stand trial--thereby losing much of the benefit of their claimed immunity, Henke v. Superior Court, 161 Ariz. 96, 99-100, 775 P.2d 1160,

[175 Ariz. 95] 1163-64 (Ct.App.1989). Indeed, the denial of Councilman Sanchez' claimed immunity defeats the very purpose for such an immunity--encouraging free speech. Scottsdale Publishing, Inc. v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (Ct.App.1988). In light of these factors, we accept special action jurisdiction. We have jurisdiction pursuant to Ariz. Const. art. VI, §§ 5(3), 5(4), Ariz.R.P.Spec.Act. 8(b), and Ariz.R.Civ.App.P. 23
A. Scope of this Decision

Our immunity decisions have given "conflicting signals." Chamberlain v. Mathis, 151 Ariz. 551, 557, 729 P.2d 905, 911 (1986). Thus, we note what this case does not involve. We are not presented with a claimed immunity for statements made in purely executive or judicial proceedings. Accordingly, we do not face the case-specific, factual inquiry required in deciding whether executive immunity is absolute or qualified. Id. at 556-58, 729 P.2d at 910-12. 3 Nor are we bound by case law mandating absolute judicial immunity. Chamberlain, 151 Ariz. at 558, 729 P.2d at 912. 4 As a result, the Arizona cases cited by the parties addressing judicial or executive immunity are inapposite.

The only question we decide is whether city and town council members have absolute legislative immunity for words spoken during a formal council meeting. Although the parties quote dicta from several cases, 5 they do not cite, nor have we found, any Arizona case or statute squarely addressing this issue. Thus, we write on a comparatively clean slate.

B. Legislative Immunity

By constitutional mandate, an absolute legislative immunity protects statements made by federal and Arizona legislators during formal legislative meetings. See U.S. Const. Art. I, § 6, cl. 1; Ariz. Const. Art. IV, pt. 2, § 7. In other states, this type of protection has not been uniformly applied to city council members. However, "[t]he trend of judicial decisions and legal thought is to extend the absolute privilege to communications of members of lesser legislative bodies." Noble v. Ternyik, 273 Or. 39, 539 P.2d 658, 660 (1975). This trend is best illustrated by the Restatement of Torts--a source to which we frequently turn in defamation cases. See, e.g., Turner v. Devlin, 174 Ariz. 201, 206, 848 P.2d 286, 291 (1993); Yetman v. English, 168 Ariz. 71, 77-78 n. 3, 81 n. 7, 811 P.2d 323, 329-30 n. 3, 333 n. 7 (1991); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 491, 724 P.2d 562, 577 (1986).

In the late 1930s, the Restatement of Torts provided that an absolute immunity protected members of Congress, as well as state and territorial legislators, from defamation actions for statements made in the performance of their legislative function. Restatement of Torts § 590 (1938). This immunity, however, did not apply to "subordinate legislative bodies to which the State has delegated legislative power." Id. cmt. c. A qualified immunity protected members of these subordinate legislative bodies. Id.

The Second Restatement, published nearly forty years later, retained absolute immunity for federal and state legislators. Restatement (Second) of Torts § 590 (1977). Unlike the First Restatement, however, this absolute immunity is "applicable to members of subordinate legislative bodies

[175 Ariz. 96] to which the State has delegated legislative power, such as a city council." Id. cmt. c (emphasis added). Thus, under the Second Restatement, city and town council members are protected by an absolute immunity. 6 The First Restatement now represents the minority rule. Restatement (Second) of Torts § 590 cmt. c. 7

The stated rationale supporting absolute immunity for council members varies but frequently includes attracting qualified council members, council members' need for candor, and the chilling effect accompanying a qualified privilege. See, e.g., O'Donnell v. Yanchulis, 875 F.2d 1059, 1063 (3d Cir.1989) (construing Pennsylvania law); Noble, 539 P.2d at 661; Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn.Ct.App.1980). We agree with the Oregon Supreme Court's observation that "a substantial number of capable people would be reluctant to serve if their statements, made in the course of their legislative duties, were ... privileged only if the finder of fact found the statements were not made maliciously." Noble, 539 P.2d at 661. A qualified privilege would also hinder debate and discussion. See id.

We are mindful of the abuses that can accompany any grant of immunity. As Judge Learned Hand commented:

It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance...

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