Acevedo v. Pima County Adult Probation Department

690 P.2d 79, 142 Ariz. 360, 1983 Ariz. App. LEXIS 731
CourtCourt of Appeals of Arizona
DecidedNovember 16, 1983
DocketNo. 2 CA-CIV 4813
StatusPublished
Cited by4 cases

This text of 690 P.2d 79 (Acevedo v. Pima County Adult Probation Department) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acevedo v. Pima County Adult Probation Department, 690 P.2d 79, 142 Ariz. 360, 1983 Ariz. App. LEXIS 731 (Ark. Ct. App. 1983).

Opinion

OPINION

BIRDSALL, Judge.

The issue presented in this case is whether an adult probation officer is protected by judicial immunity from liability for negligently supervising a convicted felon placed on probation. This appeal is from a summary judgment in favor of defendants/appellees and against plaintiffs/appellants. We affirm.

The action was commenced by Adolfo Acevedo as next friend and father of Adolfo Acevedo, Jr., Rosalie A. Fuell as next friend and mother of Robert G. Fuell, Tammy W. Fuell and Liberty Hurst, and Ventura Valenzuela as next friend and father of Ventura Valenzuela, Jr. and Ruben Valen[361]*361zuela. Defendants named in the action included the Adult Probation Department; Stephen C. Emslie, Charles R. Moffett, William G. Johnson, and Robert E. Long, as employees of the department; Pima County and the State of Arizona.

We view the facts in the light most favorable to the appellants. In 1974 Jesse Christopher was charged with two counts of rape, two counts of lewd and lascivious acts, and two counts of molestation involving his daughter and step-daughter. Pursuant to a plea agreement, he was placed on 10 years’ probation, confined to the borders of Pima County, was to continue in a mental health program and was placed under the supervision of the probation department.

Again in July 1978, Christopher was charged with four counts of child molestation involving his three step-sons. In order to spare the children the ordeal of a trial, a plea agreement was made. In March 1979 pursuant to this agreement, Christopher was placed on 20 years’ probation under the supervision of the' probation department and was ordered confined to the Pima County Jail for two years as a condition of probation with work furlough being available at the discretion of the probation department. Additionally, Christopher was ordered to have no contact whatsoever with children under the age of 15 and he was to continue his psychological therapy. Stephen Emslie was assigned as his probation officer in November 1979. In October 1980 Christopher was released from custody and at that time his case was transferred to probation officer Charles Moffett.

Subsequently, Christopher obtained employment from Adolfo Acevedo. Christopher lied to Acevedo, saying that he was on work furlough from the Pima County Jail for having assaulted his wife’s boyfriend. Christopher presented Acevedo with an “Employer Agreement” form from the Pima County Corrections Center which explained the conditions of his employment under the program and indicated that Christopher had undergone extensive screening to become eligible for the program. Acevedo signed and returned the form to Christopher.

During this same time, Christopher was befriended by Ventura Valenzuela who was also doing time at the Pima County Jail as a condition of probation on an aggravated assault charge. Following the time that both Christopher and Valenzuela were released, Christopher sought to rent a room from Valenzuela. Valenzuela’s probation officer at this time was appellee Emslie, and Emslie knew where Valenzuela was living with his wife and five children who ranged in age from three to nine years old.

Valenzuela advised Emslie that Christopher wanted to rent a room from him because Valenzuela was also on probation and he was not allowed to have contact with other known felons. Given his conditions of probation, Valenzuela felt that it was incumbent upon him to advise Emslie and obtain his permission before entering into any rental agreement.

Emslie gave Valenzuela permission to rent a room to Christopher. Both Acevedo and Valenzuela asserted by affidavit that they were never advised of the circumstances surrounding Christopher’s probation or the conditions of his probation. On the other hand, Emslie asserted in his affidavit that in May 1980, he had advised Valenzuela that Jesse Christopher was on probation for child molestation and that he could not have contact with children under 15 years of age.

Beginning in the summer of 1981 and continuing through the date of his arrest in September 1981, Christopher sexually assaulted the Valenzuela and Acevedo children as well as their playmates. As a result of the foregoing crimes, Christopher’s probation was revoked and he was sentenced to life imprisonment. Additionally, Christopher was charged with six counts of molestation of a child in relation to the most recent assaults and he pled guilty to all counts and received concurrent life terms.

Subsequently, the appellants brought suit for damages in Pima County Superior Court alleging that the appellees had negligently supervised Christopher, a probationer in their custody, in violation of a specific [362]*362court order and applicable statutory law. Appellees filed motions to dismiss and/or for summary judgment. The trial court granted appellees’ motion for summary judgment on the ground that appellees were immune from liability.

Although three issues were presented for our consideration on appeal, we find the issue regarding judicial immunity dispositive and need not address the others.

Appellants contend that the trial court erred in granting appellees’ motion for summary judgment because, they argue, absolute judicial immunity does not extend to probation officers who are required to perform ministerial functions in carrying out their supervisory duties. We disagree.

Absolute immunity for participants in judicial proceedings is well established:

“This Court early held that judges of courts of superior or general authority are absolutely priviledged [sic] as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, ... and that a like immunity extends to other officers of government whose duties are related to the judicial process.” Barr v. Matteo, 360 U.S. 564 at 569, 79 S.Ct. 1335 at 1338, 3 L.Ed.2d 1434 at 1440 (1959).”

Although the immunity traditionally granted public officials has been diminished by recent Arizona case law, Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), judicial immunity has remained unscathed. In Grimm, supra, where the Arizona Supreme Court abolished immunity for discretionary acts of public officials, the court stated that they were “... leaving intact the absolute judicial immunity enjoyed by participants in judicial proceedings____” 115 Ariz. at 266, 564 P.2d 1227. The court further distinguished judicial and public official immunity: “The discretion of an administrative official is not that of a judge. By training and tradition, the trust placed in the judgment of a judge is not the samé as that of an administrative officer.” 115 Ariz. at 264, 564 P.2d 1227. Similarly, the court in Ryan, supra, stated, “...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Lyons
804 P.2d 744 (Arizona Supreme Court, 1990)
State v. Pima County Adult Probation Department
708 P.2d 1337 (Court of Appeals of Arizona, 1985)
Acevedo v. Pima County Adult Probation Department
690 P.2d 38 (Arizona Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
690 P.2d 79, 142 Ariz. 360, 1983 Ariz. App. LEXIS 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acevedo-v-pima-county-adult-probation-department-arizctapp-1983.