Arizona's Notice of Claim Statute: Guidance on Clearing this Procedural Hurdle and Suggestions for its Improvement

Phoenix Law Review, Vol. 3, No. 229

40 Pages Posted: 2 Mar 2010 Last revised: 19 Jul 2010

Dawinder S. Sidhu

Georgetown University Law Center; Shook, Hardy & Bacon

Date Written: March 2, 2009

Abstract

The Arizona Constitution empowers the legislature to establish rules for how and under what circumstances the State may be sued. Pursuant to this constitutional authority, the Arizona State Legislature enacted Arizona Revised Statutes Section 12-821.01, which requires those with claims against an Arizona public entity or employee to file notice of the claims prior to the initiation of legal action.

This procedural prerequisite to initiate a suit may be prudent as a matter of public policy. In practice, however, the state courts have been unable to issue reliable decisions with respect to the statute’s requirements. The state courts’ evolving understanding of the statute has led to the federal courts delivering inconsistent opinions when faced with motions to dismiss on notice of claim grounds. As a result, claimants have not only had their claims thrown out without reaching the merits, but more critically, the courts have dismissed claims under a cloud of confusion and uncertainty as how compliance with the statute may be achieved in a state or federal forum.

The notice of claim statute, as currently interpreted by the courts, is broken. This article provides guidance on how the statute may be navigated in consideration of previous pronouncements from the courts, and how the statute may be fixed to facilitate compliance, while simultaneously upholding the purposes of the present statute. Accordingly, Part I provides an overview of the statute, including its historical development and the justifications for its existence. Part II compares the state courts’ and federal courts’ recent treatment of the statute’s requirements, showing a divergence between the two. Part III offers litigants guideposts for satisfying the elements of the statute despite the courts’ unharmonious views on the statute’s content. Part IV proposes a revised statute to replace the current one, as well as an amended rule of professional conduct to curb inappropriate attorney behavior in respect of filing suits against the State.

The current state of the notice of claim statute is sufficiently dire that legislative action is urgently necessary. It is hoped that this article will help practitioners contend with the statute in the meantime, and will provide useful suggestions to relevant stakeholders when and if revisions to the existing statute are considered.

Keywords: Notice of Claim, Sovereign Immunity, Arizona, Procedure, Legislation

Suggested Citation

Sidhu, Dawinder S., Arizona's Notice of Claim Statute: Guidance on Clearing this Procedural Hurdle and Suggestions for its Improvement (March 2, 2009). Phoenix Law Review, Vol. 3, No. 229. Available at SSRN: https://ssrn.com/abstract=1562264

Dawinder S. Sidhu (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Shook, Hardy & Bacon

1155 F Street NW
Suite 200
Washington, DC 20004
United States

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