Schmidt, Sethi & Akmajian Blog

Torts: Legislative and Judicial Immunity

Posted by Ted A. Schmidt | Feb 16, 2024 | 0 Comments

Garibay v. Johnson, No. 2 CA-SA 2023-0091 (App. Div. II, February 14, 2024) (J. O'Neil)


Plaintiffs' decedent Angela Fox was an apartment manager. She accompanied Constable Martinez-Garibay, to serve a writ of restitution on a tenant. Garibay was appointed by the Pima County Board of Supervisors [BOS]. The tenant shot and killed Angela and Garibay then shot and killed himself. Angela's surviving husband brought this wrongful death action against Gabriel Garibay as Martinez-Garibay's widower, Pima County and the Arizona Constable Ethics Standards and Training Board [CESTB]. The tort allegations included claims of negligence and gross negligence in training, supervising, monitoring and otherwise failing to protect Angela. Pima County was alleged to be liable under the doctrine of respondeat superior and in the appointment of Garbay. The trial court denied Pima County's motion to dismiss on immunity grounds and the Arizona Court of Appeals accepted jurisdiction of Pima County's Petition for Special Action. The court of appeals granted relief in part and denied relief in part.

The act of appointing a constable by the BOS is not a “legislative function” entitling the County to absolute legislative immunity under A.R.S. § 12-820.01(A)(1). Legislative functions involve setting prospective policy, while appointing officers to fill vacancies constitutes an executive function. Ariz. Const. art. V, § 8.

On the other hand, judicial immunity, a common law doctrine, codified in 1984 in A.R.S. § 12-820.01(A)(1),  exists to protect judges and their officers and assure they are able to function with independence and “without fear of consequences.” 

A constable is required by law to serve process as directed by a court. § 22-131(A).

“When a constable attends a court and serves process as directed by a court,

the constable, like a sheriff, is acting as an officer of the court.” While

carrying out those duties as an officer of the court, “the court ‘has

jurisdiction either to exercise control over the act or to discipline the officer

for doing or not doing it.'” We conclude that service of a writ is necessarily

a judicial function, closely tied to the judicial decision to issue the writ in

the first place. (“[A]n official charged with executing a facially valid court

order has no choice but to do so.”). It is, therefore, protected by the

doctrine of judicial immunity.

Finally, while A.R.S. § 11-449 renders a sheriff or constable liable if  she “neglects to make due return of a writ or paper delivered to him to be served or executed, or is guilty of any misconduct in the service or execution thereof,” § 11-449  does not abrogate judicial immunity. The allegations of negligence and gross negligence do not equate to “misconduct”  or neglecting to return the writ. 

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.