Arizona Court of Appeals Division One Holds Attorney General is Not Entitled to Absolute Immunity from Claim of Defamation in Connection with Press Release.

A real estate developer and his related entities acquired title to property bordering state trust lands with the intention of creating a residential and business development. Attorney General Terry Goddard filed suit against the developer, alleging that he violated numerous laws applicable to developers in his position. The developer counterclaimed, alleging that Goddard had issued a press release containing false and defamatory statements. (The press release alleged “numerous violations of state law and destruction of the State’s natural and archaeological resources.”) Goddard moved to dismiss the counterclaim, asserting that he had “an absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties.” The trial court disagreed, holding that in this context Goddard had only “qualified” immunity, which immunizes only official acts “done in good faith,” rather than “absolute” immunity, which immunizes all official acts, “no matter how malicious.” Goddard sought special action relief in Division One. The Court of Appeals accepted special action jurisdiction, noting that interlocutory review in official-immunity cases is commonly permitted because the benefits of immunity are lost if the party claiming it is forced to defend himself. But the Court denied relief. The Court first noted that the Arizona Supreme Court, in Chamberlain v. Mathis, 151 Ariz. 551, 729 P.2d 905 (1986), had adopted “a general rule of qualified immunity, bolstered by an objective malice requirement for executive government officials.” Pursuant to this standard, absolute immunity is unavailable unless the official demonstrates that it is “essential to conducting public business.” The Court found that Goddard had not made this showing. Goddard argued that he should not be required to defend the counterclaim at the same time that he prosecuted the underlying case, but the Court noted that the trial court had addressed this issue by agreeing to separate the trials of the underlying claims and the counterclaim. Goddard claimed that he would be unable to waive the confidentiality of privileged communications that underlay the press release, but the Court stated that it “cannot imagine what type of privileged attorney-client communications and information could support a decision to issue a press release and yet still be undiscoverable.” Goddard warned that if he were denied absolute immunity, defendants would be encouraged to assert counterclaims as a defense strategy, chilling legitimate state lawsuits, but the Court noted that Goddard had not adequately explained why the protections of qualified immunity with an objective malice requirement were insufficient to prevent this from occurring. Goddard argued that “established public policy” entitled him to absolute immunity for issuing press releases about litigation, but the Court noted that no statute required him to issue press releases regarding pending cases. Goddard pointed out that heads of executive departments typically are granted absolute immunity, but the Court concluded that the Arizona Supreme Court implicitly rejected this view in Chamberlain. Finally, Goddard cited cases from other jurisdictions granting absolute immunity in similar circumstances, but the Court refused to follow these cases, noting that they followed a United States Supreme Court precedent that the Arizona Supreme Court rejected in Chamberlain. The Court noted that its holding did not address situations in which “the Attorney General is the policy maker,” such as criminal prosecutions and consumer protection.

Judge Hall dissented, arguing that the case fit within the narrow exception to Chamberlain’s rule of qualified immunity. Judge Hall reasoned that the majority had improperly construed Chamberlain’s standard for governmental immunity as applying to “high-level executive” immunity. He added that “[t]he harms to the public would be substantial if an attorney general hesitated in explaining the activities of his office for fear of otherwise incurring tort liability.”

The majority opinion was authored by Judge Orozco and joined by Judge Irvine.