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ARF- 4251

Executive Session Item 6. B.

Regular BOS Meeting

Meeting Date:	04/04/2017
Submitted By:	Janice Cook, Executive Administrative Assistant
Department:	County Manager

Information

Request/Subject

Gila County's participation in the filing of an amicus brief in Humphrey, et al. v. State of Arizona, Court of Appeals No. 1 CA-CV 16-0570.

Background Information

The State of Arizona is currently pursuing an appeal that involves two issues that will significantly impact all government entities in Arizona: (1) accrual for purposes of notices of claim (A.R.S. § 12-821.01) and the statute of limitations (A.R.S. § 12-821); and (2) immunity under A.R.S. § 12-820.01(A) (exercise of legislative and administrative functions). These potential defenses arise in nearly every civil lawsuit against a government entity.

The Maricopa County Superior Court (Judge David Udall) recently ruled against the State on these two defenses. The State is gearing up to challenge these rulings on appeal, seeking a reversal and determinations that:

accrual is not delayed until the claimant has secured evidence supporting negligence; rather, a claim accrues once the claimant knows he or she has been injured and knows or should know the cause, source, act, event, instrumentality, or condition that caused or contributed to the injury; and,
the immunity statute applies to governmental decisions not to act (e.g., not installing a median barrier or traffic signal at a specific location) when that “decision by default” automatically flows from a broader legislative or administrative act that set specific criteria for determining when to act in the future.

Evaluation

Gila County is a member of a self-insured risk pool, i.e., Arizona Counties Insurance Pool (ACIP). County administration concurs with ACIP staff and counsel who are adamant that Judge Udall's decision, if allowed to stand, will completely erode the State's claim (A.R.S. §12-821.01), statute of limitations (A.R.S. §12-821) and immunity (A.R.S. §12-820.01(A) statutes, adversely affecting all of Arizona's government entities.

Conclusion

Staff believes that Arizona government entities at all levels would benefit from a reversal of Judge Udall's decisions and affirmative findings determining that:

accrual is not delayed until a claimant has secured evidence supporting negligence; rather, a claim accrues once the claimant knows he or she has been injured and knows or should know the cause, source, act, event, instrumentality, or condition that caused or contributed to the injury; and,
the immunity statute applies to governmental decisions not to act when that “decision by default” automatically flows from a broader legislative or administrative act that set specific criteria for determining when to act in the future.

Recommendation

Staff recommends Gila County's participation in the filing of an amicus brief in Humphrey, et al. v. State of Arizona, Court of Appeals No. 1 CA-CV 16-0570.

Suggested Motion

Information/Discussion/Action to vote to go into executive session pursuant to A.R.S. §38-431.03 (A)(3) and §38-431.03(A)(4) to receive legal advice from the Board of Supervisors' attorney regarding participation of Gila County in the filing of an amicus brief in Humphrey, et al. v. State of Arizona, Court of Appeals No. 1 CA-CV 16-0570; consider its position in the lawsuit; and, after the regular meeting has been reconvened, move to direct the County Attorney's Office to proceed as discussed in the executive session regarding the agenda item.

Attachments
ACIP Counsel Opinion