Arizona Court of Appeals, Division Two holds that (1) absolute legislative immunity does not protect a board’s decision to appoint a constable, and (2) acts in service of a writ are protected by judicial immunity.

A county board of supervisors appointed a constable to fill a vacant position.  The constable, accompanied by an apartment manager, attempted to serve a writ of restitution on a tenant, and the tenant killed both the constable and the apartment manager.  The apartment manager’s surviving spouse sued the constable’s widower and the county.  The widower and county moved for judgment on the pleadings, asserting that the board’s appointment of the constable was entitled to absolute legislative immunity under A.R.S. § 16-230(A)(2) and that the constable had judicial immunity.

Under A.R.S. §12-820.01, public entities are entitled to legislative immunity for acts and omissions of its employees when those actions constitute a legislative function.  Section 16-230(A)(2) provides that if a county office becomes vacant, the board of supervisors shall appoint a person to fill the position.  The Court applied the common-law immunity definition to statutory immunity, stating that a legislative function creates, defines, or regulates a right. The Court reasoned that a board’s appointment of a person to fill an office is not a legislative function because the officer’s authority is independently defined and the board’s appointment cannot expand, contract, or otherwise redefine that authority.  Thus, the Court held the county is not entitled to absolute immunity for appointing the officer.

Judicial immunity is a common law doctrine that protects judges and officers who perform judicial functions or are integral to the judicial process.  When an officer acts pursuant to a court’s directive, the officer is protected by absolute immunity.  The Court concluded that service of a writ is a judicial function because it is closely tied to the judicial decision to issue a writ.  Additionally, the Court rejected the argument that § 22-131 and § 11-449 abrogate judicial immunity, explaining that judicial immunity protects judicial acts unless those acts are “misconduct” that are not performed in furtherance of the court’s directive.  The Court therefore held that the constable was entitled to judicial immunity because her service of the writ was a judicial function, and no misconduct was alleged.

Judge O’Neil authored the opinion, in which Judges Sklar and Gard concurred.

Posted by: Molly Walker