Grimm v. Arizona Board of Pardons & Paroles ( 1977 )

HAYS, Justice,

dissenting.

Beware, oh unsuspecting trial judge, that when your decision to place a felon on probation goes horribly awry, the majority of my brothers sitting in cloistered ivory tower call your action gross and subject you to the consequences thereof. I hasten to concede that the majority opinion does not say this but logic tells me that the discretionary acts of the parole board need no less protection than those of the sentencing judge. There may be boards or commissions, bastions of bureaucracy, which should not be accorded the protection of quasi-judicial immunity, but the parole board is hardly one of these.

The words of Justice Udall in Wilson v. Hirst, 67 Ariz. 197, 193 P.2d 461 (1948), which the majority overrules, are as true now as they were then:

“[W]e can also say that we are well aware of the fact that in thus shielding public officers, who act strictly within their jurisdiction in a quasi-judicial capacity, against actions of this sort the rule may work hardship and injustice in individual cases. But there is no middle ground to be occupied in the matter; either all of such suits are to be tolerated or none. The court may occasionally be confronted with the not-unusual situation that calls for subordination of the rights of the few to the interests of the whole body of the public. The doctrine of immunity is not for the benefit of the few who might otherwise be compelled to respond in damages. It is for the benefit of all to whom it applies, that they may be free to act in the exercise of honest judgment, uninfluenced by fear of consequences personal to themselves. This again is not for their personal advantage or benefit. It is only that they may be enabled to render a better public service.” 67 Ariz. at 202, 193 P.2d at 464.

The limitation of actions against discretionary acts of quasi-judicial bodies to gross negligence has no less a chilling effect on the decisions of those bodies. Even if the vagueness of the line between gross and ordinary negligence does not make for mischief, the harassment of numerous lawsuits against quasi-judicial bodies will be ever present. Again we will find log-jammed courts overseeing the actions of boards and commissions hesitant to act for fear of being second-guessed. Heretofore, the Arizona Supreme Court has been reluctant to assume the activist role, as the overseer of all functions of government and society. Not so here!

The majority opinion does not overrule Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969), but in the attempt to distinguish that case, it casts considerable doubt on its viability. The opinion says that the Board of Pardons and Paroles, in assuming its statutory duty of parole supervision, has narrowed its duty from one owed the general public to one owed to individuals. We are not impressed by this distinction, if such it is.

As a final word, we notice a footnote indicating that appellants will have to prove at trial all the elements of a tort claim. The subject has not been addressed so we shall leave our comments on the problems of proximate cause herein to a later day.

I dissent.