Attorney General Entitled Only To Qualified Immunity For Statements
To Press Regarding Pending Litigation

On January 16, 2007, the Arizona Court of Appeals, Division I, ruled in Goddard v. Fields, 215 Ariz. 175, 150 P.3d 262 (Div. 1 2007) that Attorney General Terry Goddard was not, as he argued, entitled to absolute immunity in a defamation claim asserted against him because of allegedly false and defamatory statements contained in a press release issued by his Office.

Attorney General Terry Goddard’s office filed litigation against a real estate developer and his related entities arising out of the defendants’ alleged myriad violations of state laws applicable to developers. After filing the litigation the Attorney General issued a press release detailing the allegations in the lawsuit. Defendants then filed a counterclaim against the Attorney General, alleging that the Attorney General personally issued a press release that contained false and defamatory statements directed at defendants.

The Attorney General asserted that the statements in the press release were true, and moved to dismiss defendants’ defamation counterclaim on the basis that the Attorney General was entitled to absolute immunity “to publish defamatory matter concerning another in communications made in the performance of his official duties.” Absolute immunity insulates an individual no matter how malicious his or her conduct. Qualified immunity will shield an individual only if his or her act was performed in good faith. The trial court disagreed with the Attorney General, finding that the Attorney General was not entitled to absolute immunity but was entitled to assert qualified immunity in his defense of the counterclaim.

The Court of Appeals upheld the trial courts ruling, finding that while executive officers are entitled to absolute immunity in certain cases, generally qualified immunity is adequate to protect state executive officers’ conduct. The Court rejected all of the Attorney General’s reasons for conferring absolute immunity on him for statements made in press releases. Most notably, the Court rejected the Attorney General’s argument that “established public policy entitles him to absolute immunity for issuing press releases describing litigation his office is pursuing, including allegedly defamatory statements.” The Court held that while the public does have a right to know what litigation the Attorney General is pursuing, there did not exist an established public policy requiring that the Attorney General issue press releases, hold press conferences, or otherwise disseminate information to the public. Indeed, the Court found, issuing press releases is not an essential function of his job. Accordingly, the Court of Appeals sent the case back to the trial court, permitting the Attorney General to rely on qualified, not absolute, immunity.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.