Gabriel Garibay v. Hon. Kellie Johnson William Fox, Az Constable Ethics

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

GABRIEL GARIBAY; DEBORAH MARTINEZ-GARIBAY; AND PIMA COUNTY,
Petitioners,

v.

HON. KELLIE JOHNSON, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,

and

WILLIAM FOX, THE SURVIVING SPOUSE OF ANGELA FOX, DECEASED,
INDIVIDUALLY AND ON BEHALF OF ALL THOSE ENTITLED BY LAW TO RECOVER
FOR THE DEATH OF ANGELA FOX,
Real Party in Interest.

No. 2 CA-SA 2023-0091
Filed February 14, 2024

Special Action Proceeding
Pima County Cause No. C20231936

JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND
DENIED IN PART

COUNSEL

Humphrey & Petersen P.C., Tucson
By Andrew J. Petersen
Counsel for Petitioner

Mercaldo Law Firm, Tucson
By John J. Kastner Jr.

and
 GARIBAY v. HON. JOHNSON
Opinion of the Court

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Real Party in Interest

OPINION ON RECONSIDERATION

Judge O’Neil authored the opinion of the Court, in which Judge Sklar and
Judge Gard concurred.

O’ N E I L, Judge:

¶1 In this wrongful-death action, Pima County and Gabriel
Garibay seek special-action review of the respondent judge’s denial of their
motion to dismiss plaintiff William Fox’s claims against them. We accept
jurisdiction and grant partial relief.

Background

¶2 In March 2022, the Pima County Board of Supervisors (“the
Board”) voted to appoint Deborah Martinez-Garibay as constable to fill a
vacant position. When Martinez-Garibay attempted to serve a writ of
restitution on tenant Gavin Stansell, accompanied by apartment manager
Angela Fox, Stansell shot and killed both women and another resident at
the apartment complex. He then killed himself.

¶3 Angela’s surviving spouse, William Fox, brought a wrongful
death action against Gabriel Garibay as Martinez-Garibay’s widower, Pima
County, and the Arizona Constable Ethics, Standards and Training Board
(CESTB). He alleged Martinez-Garibay had negligently and grossly
negligently breached her duty “to protect and avoid exposing Angela . . .
and the general public to harm” while serving the writ. Fox alleged Pima
County was Martinez-Garibay’s employer and, thus, pursuant to the
doctrine of respondeat superior, vicariously liable for her conduct. Finally,
he alleged that Pima County and CESTB had “negligently failed to
adequately hire, train, supervise, and monitor” Martinez-Garibay.

¶4 Garibay and Pima County moved for a judgment on the
pleadings under Rule 12(c), Ariz. R. Civ. P., asserting the Board’s decision
to appoint Martinez-Garibay is entitled to absolute immunity, Pima County
“is not responsible for supervising or training constables,” and respondeat

2
 GARIBAY v. HON. JOHNSON
Opinion of the Court

superior does not apply because a constable is “an officer of the court whose
duties are imposed by statute.” They further asserted Martinez-Garibay
had judicial immunity and, in any event, owed no duty to Angela. The
respondent judge denied the motion, rejecting the immunity claims and
concluding “the facts, as plead, could give rise to a finding by the finder of
fact that the County did control Ms. Garibay and she did have a duty to act
as a reasonably prudent constable.” This petition for special action
followed. Special action jurisdiction is appropriate to address whether
immunity applies, see City of Scottsdale v. Mikitish, 253 Ariz. 238, ¶¶ 4-5
(App. 2022), and other pure questions of law, see Phx. Newspapers, Inc. v.
Ellis, 215 Ariz. 268, ¶ 9 (App. 2007). See also A.R.S. § 12-120.21(A)(4); Ariz.
R. P. Spec. Act. 1(a), 3.

Discussion

¶5 Garibay and Pima County argue the Board is entitled to
absolute immunity and “is not vicariously liable for a constable.” They also
argue Martinez-Garibay is entitled to judicial immunity and owed no duty
to Angela. “A motion for judgment on the pleadings . . . tests the sufficiency
of the complaint, and judgment should be entered for the defendant if the
complaint fails to state a claim for relief.” Giles v. Hill Lewis Marce, 195 Ariz.
358, ¶ 2 (App. 1999). We review the trial court’s ruling de novo, accepting
the allegations in the complaint as true. Save Our Valley Ass’n v. Ariz. Corp.
Comm’n, 216 Ariz. 216, ¶ 6 (App. 2007).

I. Legislative Immunity

¶6 Garibay and Pima County assert the Board’s appointment
decision, pursuant to A.R.S. § 16-230(A)(2), is entitled to absolute legislative
immunity under A.R.S. § 12-820.01(A)(1). We review the application of the
immunity statute de novo. See Schabel v. Deer Valley Unified Sch. Dist. No.
97, 186 Ariz. 161, 163 (App. 1996). “[G]overnmental liability is the rule in
Arizona and immunity is the exception,” and we “construe immunity
provisions narrowly.” Doe ex rel. Doe v. State, 200 Ariz. 174, ¶ 4 (2001).
“Accordingly, we examine the application of this statute to [Fox]’s claims
and [Pima County]’s acts with a view to finding immunity only if it clearly
applies.” Schabel, 186 Ariz. at 163.

¶7 Under § 12-820.01(A)(1), a public entity is entitled to absolute
immunity for “acts and omissions of its employees constituting . . . [t]he
exercise of a . . . legislative function.” At oral argument before this court,
Garibay and Pima County asserted the Board’s appointment of a constable
is a legislative act because it is a political question expressly committed by

3
 GARIBAY v. HON. JOHNSON
Opinion of the Court

statute to the Board, a legislative body. Specifically, § 16-230(A)(2)
provides, “If a county office becomes vacant, the board of supervisors shall
appoint a person of the same political party as the person vacating the office
to fill the portion of the term until the next regular general election.”

¶8 Garibay and Pima County contend that a legislative function
is defined according to the nature of the body that is statutorily required to
perform it. According to their argument, if the law directly assigns the
function to a legislative body, the function is legislative. But in the context
of common-law legislative immunity, Arizona courts have defined a
legislative function differently. See Ariz. Indep. Redistricting Comm’n v.
Fields, 206 Ariz. 130, ¶¶ 15-16, 21 (App. 2003) (explaining basis for common-
law legislative immunity). “Whether an act is ‘legislative’ depends on the
nature of the act,” not the body authorized or required by law to perform
that act. Id. ¶¶ 15, 21 (addressing legislative privilege, which arises from
common-law legislative immunity). “[O]fficials outside the legislative
branch are entitled to legislative immunity when they perform legislative
functions.” Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998); see also Fields, 206
Ariz. 130, ¶ 21 (favorably citing Bogan). And a legislative body’s act that is
“related to the legislative process” is not protected unless it bears the
“hallmarks of traditional legislation.” State ex rel. Montgomery v. Mathis, 231
Ariz. 103, ¶¶ 75, 79 (App. 2012) (quoting Fields, 206 Ariz. 130, ¶¶ 18, 21). A
function is legislative when it reflects “a discretionary, policymaking
decision that may have prospective implications.” Fields, 206 Ariz. 130,
¶ 21.

¶9 Although this case involves statutory rather than common-
law immunity, we see no reason to depart from this definition. See Galati v.
Lake Havasu City, 186 Ariz. 131, 135 (App. 1996) (looking to common-law
immunity cases to determine scope of statutory immunity under § 12-
820.01). Indeed, § 12-820.01 largely codified legislative immunity, along
with various other common-law immunity doctrines. City of Tucson v.
Fahringer, 164 Ariz. 599, 600-01 (1990). Consistent with this understanding,
in another case involving § 12-820.01(A), this court stated that a “[c]ounty
exercises its ‘legislative function’ by creating, defining, or regulating
rights.” County of La Paz v. Yakima Compost Co., 224 Ariz. 590, ¶ 35 (2010).
Applying this definition, the Board’s decision concerning whom to appoint
as constable is not a legislative function. See Mathis, 231 Ariz. 103, ¶ 79.
Although the law assigns responsibility for appointment of constables to
county boards of supervisors under limited circumstances, there is nothing
uniquely legislative in the act of appointing a person to fill a vacant office.
See § 16-230(A)(2). By default, our constitution treats appointment of

4
 GARIBAY v. HON. JOHNSON
Opinion of the Court

officers to fill vacancies as a responsibility of the executive. Ariz. Const. art
V, § 8.

¶10 Despite the Board’s role in filling a vacancy in the office of
constable, the constable’s authority is independently defined by law, and
the Board’s appointment of a person to fill that office cannot expand,
contract, or otherwise redefine that authority. See A.R.S. § 22-131. The
appointment lacks the “hallmarks of traditional legislation” because it sets
no prospective policy, Fields, 206 Ariz. 130, ¶ 21 (quoting Bogan, 523 U.S. at
55), and does not “creat[e], defin[e], or regulat[e] rights,” Yakima Compost
Co., 224 Ariz. 590, ¶ 35. Pima County is not, therefore, entitled to absolute
immunity under § 12-820.01(A)(1) for its appointment of Martinez-Garibay
as constable.

II. Judicial Immunity

¶11 Garibay and Pima County argue Martinez-Garibay is
“entitled to judicial immunity” because she was serving the writ pursuant
to a court order. Judicial immunity is a common-law doctrine that exists
“to assure that judges will exercise their functions with independence and
without fear of consequences.” Acevedo v. Pima Cnty. Adult Prob. Dep’t, 142
Ariz. 319, 321 (1984). “Whether judicial immunity exists is a legal question
for the court.” Burk v. State, 215 Ariz. 6, ¶ 7 (App. 2007).

¶12 Fox argues that judicial immunity does not apply here
because “[t]he underlying policy of principled and fearless decision-
making is not served by allowing immunity under the circumstances
presented in this case.” At oral argument before this court, he argued that
even though judicial immunity protects a judge’s order issuing a writ, it
does not extend to the officer who acts in furtherance of that order by
serving it. But “[j]udicial immunity is not limited to judges.” Id. ¶ 8. It also
protects officers “who perform functions ‘intimately related to’ or that are
‘an integral part of the judicial process.’” Id. (quoting Acevedo, 142 Ariz. at
321). Fox correctly cites Acevedo, 142 Ariz. at 321, for the proposition that
“the applicability of judicial immunity to officers serving the judiciary is
limited to those situations where the underlying policy of judicial immunity
is served: principled and fearless decision-making by that officer.”
Contrary to Fox’s argument, however, that policy “is served by removing
the possibility that ‘a non judicial officer who is delegated judicial duties in
aid of the court’” will become a target for litigation “aimed at the court.”
Id. (quoting Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir. 1980)).

5
 GARIBAY v. HON. JOHNSON
Opinion of the Court

¶13 So long as a public employee acts pursuant to the court’s
directives, “acting pursuant to court order is [a] basis for granting absolute
immunity.” Adams v. State, 185 Ariz. 440, 444 (App. 1995); see also Acevedo,
142 Ariz. at 322 (“A probation officer cannot assert for immunity unless the
officer is acting pursuant to or in aid of the directions of the court.”). For
example, in Yamamoto v. Santa Cruz County Board of Supervisors, 124 Ariz.
538, 540 (App. 1979), we determined judicial immunity protected a court
clerk engaged in an “essentially ministerial” act following a judge’s order.
Arizona courts have likewise extended judicial immunity to other non-
judicial officers who “performed a function, pursuant to a court directive,
which was related to the judicial process.” Acevedo, 142 Ariz. at 321.

¶14 The relevant question is not whether constables are, as a
general matter, judicial or executive officers. The parties have cited no
binding authority resolving that question, and we have found none. See
Powers v. Carpenter, 203 Ariz. 116, ¶ 21 (2002) (declining to reach the issue).
The question is whether Martinez-Garibay was performing a judicial
function in serving the writ of restitution on Stansell. On that issue, it is
well established in Arizona law that sheriffs act as officers of the court when
performing certain statutory duties, especially the duties to attend court
and serve process. See Merrill v. Phelps, 52 Ariz. 526, 531 (1938); Arpaio v.
Baca, 217 Ariz. 570, ¶ 27 (App. 2008); Clark v. Campbell, 219 Ariz. 66, ¶ 21
(App. 2008); A.R.S. § 11-441(A)(4), (7). Our supreme court has addressed
the court’s authority over sheriffs as a question of “the power of the court
over its own officers.” State ex rel. Andrews v. Superior Court, 39 Ariz. 242,
248 (1931). That power does not extend beyond the court’s discipline and
control over the particular acts that sheriffs perform as officers of the court.
Id. at 248-49. But within the scope of those duties, sheriffs act as “the
executive arm of the court, acting under its orders in all respects.” Merrill,
52 Ariz. at 531.

¶15 The same is true of a constable. 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.” Clark, 219 Ariz. 66, ¶ 21. 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.’” Id. (quoting Andrews, 39 Ariz. at 248-49). 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. See Mays v.
Sudderth, 97 F.3d 107, 113 (5th Cir. 1996) (“[A]n official charged with
executing a facially valid court order has no choice but to do so.”). It is,

6
 GARIBAY v. HON. JOHNSON
Opinion of the Court

therefore, protected by the doctrine of judicial immunity. See id. at 113-14
(judicial immunity applied to service of facially valid writ); Henry v. Farmer
City State Bank, 808 F.2d 1228, 1238-39 (7th Cir. 1986) (judicial immunity
extended to seizure of property pursuant to court order to enforce
judgment); Tymiak v. Omodt, 676 F.2d 306, 308 (8th Cir. 1982) (sheriff, acting
under direction of court, was immune from suit for purportedly wrongful
eviction). In this case, in serving a court-issued writ of restitution,
Martinez-Garibay “act[ed] as an officer of the court” under the cloak of
judicial immunity. Clark, 219 Ariz. 66, ¶ 21.

¶16 Fox, however, relies on § 22-131(D) and A.R.S. § 11-449 to
argue that the legislature has abrogated judicial immunity for constables
while serving writs. Section 22-131(D) states that “[t]he provisions of law
relating to sheriffs . . . shall govern the powers, duties and liabilities of
constables,” and under § 11-449, a sheriff is liable if the “sheriff 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.”
We review questions of statutory interpretation de novo. Stambaugh v.
Killian, 242 Ariz. 508, ¶ 7 (2017). “Our task in statutory construction is to
effectuate the text if it is clear and unambiguous.” BSI Holdings, LLC v. Ariz.
Dep’t of Transp., 244 Ariz. 17, ¶ 9 (2018). We therefore “‘interpret statutory
language in view of the entire text, considering the context and related
statutes on the same subject,’ giving the words ‘their ordinary meaning
unless it appears from the context or otherwise that a different meaning is
intended.’” Windhurst v. Ariz. Dep’t of Corr., 256 Ariz. 186, ¶ 13 (2023)
(citations omitted) (quoting Molera v. Hobbs, 250 Ariz. 13, ¶ 34 (2020), and
then Ariz. ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243 Ariz.
539, ¶ 7 (2018)).

¶17 Read according to the ordinary meaning of their words in
context, § 22-131(D) and § 11-449 do not abrogate judicial immunity. “The
doctrine of judicial immunity is an ancient one in the common law.”
Acevedo, 142 Ariz. at 321. We require “a clear manifestation of legislative
intent to abrogate the common law.” Owner-Operator Indep. Drivers Ass’n v.
Pac. Fin. Ass’n, Inc., 241 Ariz. 406, ¶ 27 (App. 2017). Section 11-449 manifests
no such intent. With language in effect since 1913, it provides liability for
“damages sustained” and “a penalty of two hundred dollars” when a
sheriff “neglects” to serve a writ or is “guilty of any misconduct in [its]
service.” § 11-449; Ariz. Civ. Code, §§ 2542-43 (1913). It appears in an
article that addresses the office of sheriff, and nothing in the statute’s
language speaks to either the application or any abrogation of judicial
immunity.

7
 GARIBAY v. HON. JOHNSON
Opinion of the Court

¶18 The legislature codified the judicial immunity doctrine in
1984 by adopting § 12-820.01(A)(1), which provides absolute immunity for
“[t]he exercise of a judicial . . . function.” See Fahringer, 164 Ariz. at 600.
Unlike § 11-449, § 12-820.01 directly governs our application of common-
law immunity doctrines. It provides no exception for the service of a writ.
Under the unambiguous terms of § 12-820.01(A)(1), absolute immunity
simply depends on whether service of a writ is a judicial function. We
conclude that it is. Interpreting § 11-449 as an abrogation of the common-
law doctrine of judicial immunity would place that older statute in conflict
with the more recent § 12-820.01(A)(1). See Jurju v. Ile, 255 Ariz. 558, ¶ 21
(App. 2023) (favoring statutory interpretation that reconciles apparent
conflicts). Assuming such a conflict exists, § 12-820.01(A)(1) would control
our analysis because it is both more recently enacted and more specific to
the question of judicial immunity. See State v. Jones, 235 Ariz. 501, ¶ 11
(2014) (“the more recent and specific statute applies”); see also Owner-
Operator Indep. Drivers Ass’n, 241 Ariz. 406, ¶ 27 (requiring clear legislative
intent to abrogate common law doctrines).

¶19 We have found no authority, however, suggesting that § 11-
449 has ever been understood as an abrogation of judicial immunity.
Rather, “we have specifically recognized the continued validity of the
doctrine of judicial immunity” despite the statute’s existence. Acevedo, 142
Ariz. at 321. And as noted, the legislature codified the common-law
doctrine when it adopted § 12-820.01. See Fahringer, 164 Ariz. at 600. In any
event, the language in § 11-449 does not conflict with the application of
judicial immunity to the service of writs in accordance with both the
common-law principle and the provision of absolute immunity for judicial
functions in § 12-820.01(A)(1). See Welch-Doden v. Roberts, 202 Ariz. 201,
¶ 22 (App. 2002) (“In construing statutes, we have a duty to interpret them
in a way that promotes consistency, harmony, and function.”).

¶20 The common-law doctrine of judicial immunity protects
judicial acts “even when such acts are in excess of [a judicial officer’s]
jurisdiction or are alleged to have been done maliciously or corruptly.”
Acevedo, 142 Ariz. at 321. As we have explained, it not only protects a
judge’s decision to issue an order but extends also to others who carry out
that order. See id. And a sheriff or constable who “attends a court and
serves process as directed by a court . . . is acting as an officer of the court.”
Clark, 219 Ariz. 66, ¶ 21. But when an officer subject to a court order instead
“ignore[s] the specific direction of the court” or acts “contrary to the court’s
directive,” judicial immunity does not apply. Acevedo, 142 Ariz. at 322.
Thus, although common-law judicial immunity would protect a constable

8
 GARIBAY v. HON. JOHNSON
Opinion of the Court

while serving a writ “pursuant to or in aid of the directions of the court,”
its protection would cease when the constable acted contrary to the court’s
orders or ignored the court’s directives. See id.

¶21 Likewise, although § 11-449 does not define “misconduct,”
§ 11-441(A)(7) of the same article imposes a duty for a sheriff to “[s]erve
process and notices in the manner prescribed by law.” Section 11-449
imposes liability when the sheriff instead either “neglects” to return a writ
or “is guilty of any misconduct” while serving it. Consistent with common-
law principles, so long as the sheriff acts in furtherance of the duty to serve
the writ as directed, judicial immunity shields the sheriff from liability. Cf.
Schuster v. Merrill, 56 Ariz. 114, 118-19 (1940) (officer is bound to serve
process when legal in form and proceeding from proper authority; thus,
“[t]he only ground . . . upon which an action can be predicated against an
officer for executing process is where the lack of authority for its issuance
is apparent on its face”).

¶22 Thus, we do not read § 11-449 as an abrogation of judicial
immunity but in harmony with its principles. Nor do we interpret § 11-449
in any way contrary to the legislature’s provision of absolute immunity for
judicial functions in § 12-820.01(A)(1). Instead, “misconduct” under § 11-
449 requires acts during service of the writ that are not performed in
furtherance of the court’s directives. Such acts would fall outside the
protection of judicial immunity. Cf. Fid. & Deposit Co. of Md. v. McFadden, 47 Ariz. 116, 117-18, 120-22 (1936) (where writ directed sheriff “to attach
and safely keep” cattle, liability attached for seizure of wrong person’s
cattle and “failure properly to care for them” as required); Schuster, 56 Ariz.
at 118-19 (sheriff may be liable for failing to carry out commands of writ).

¶23 Although the word might sometimes be defined more
broadly, our reading falls within the range of meanings for the word
“misconduct” in use at the time of the statute’s adoption. See State ex rel.
Ariz. Dep’t of Revenue v. Tunkey, 254 Ariz. 432, ¶ 23 (2023) (Bolick, J.,
concurring) (words in statutes should be interpreted “according to their
original public meaning and broader statutory context”); Matthews v. Indus.
Comm’n, 254 Ariz. 157, ¶ 33 (2022) (“Our examination of original public
meaning starts with dictionary definitions from the time the provision was
adopted.”); Molera, 250 Ariz. 13, ¶ 35 (when statutory language not defined,
“we give the term its common meaning”). For example, as defined in one
dictionary published in 1904:

The term “misconduct” implies a wrongful
intention, and not a mere error of judgment.

9
 GARIBAY v. HON. JOHNSON
Opinion of the Court

In usual parlance, misconduct means a
transgression of some established and definite
rule of action, where no discretion is left, except
what necessity may demand; and carelessness,
negligence, and unskillfulness are
transgressions of some established, but
indefinite, rule of action, where some discretion
is necessarily left to the actor. Misconduct is a
violation of definite law; carelessness, an abuse
of discretion under an indefinite law.
Misconduct is a forbidden act; carelessness, a
forbidden quality of an act, and is necessarily
indefinite.

¶24 Misconduct, Judicial and Statutory Definitions of Words and
Phrases (1904). Arizona courts of that time often similarly recognized a
distinction between negligence, gross negligence, and misconduct. Cf.
Lassetter v. Becker, 26 Ariz. 224, 234 (1924) (distinguishing “carelessness”
from “willful and corrupt misconduct”); Vinson v. O’Malley, 25 Ariz. 552,
558 (1923) (“misconduct” required for removal from office “must be willful
and corrupt”); Morrell v. City of Phx., 16 Ariz. 511, 513-14 & 513 (1915)
(recognizing distinction in city charter between negligence, for which city
was immune, and “gross negligence or willful misconduct,” for which city
was liable).

¶25 Our paramount concern is to interpret the statute according
to its own language and context. See S. Ariz. Home Builders Ass’n v. Town of
Marana, 254 Ariz. 281, ¶ 31 (2023). Section 11-449 itself distinguishes
between an officer’s “neglect” to perform a duty and an officer’s
“misconduct” in performing it. That distinction suggests that as used in
this statute, “misconduct” carries a meaning different from “neglect.” See
State v. Harm, 236 Ariz. 402, ¶ 19 (App. 2015) (“[W]hen the legislature
chooses different words within a statutory scheme, we presume those
distinctions are meaningful and evidence an intent to give a different
meaning and consequence to the alternate language.”). And again, our
reading avoids conflict with either the later-adopted immunity statutes or
the common-law doctrine, the abrogation of which requires manifest
legislative intent, see Owner-Operator Indep. Drivers Ass’n, 241 Ariz. 406,
¶ 27. As contemplated in § 11-449, therefore, “misconduct” requires more
than mere negligence or gross negligence in a sheriff’s execution of the duty
to serve a lawful writ pursuant to the direction of a court.

10
 GARIBAY v. HON. JOHNSON
Opinion of the Court

¶26 In this case, Fox alleges that Martinez-Garibay acted
negligently or grossly negligently by directing Angela to accompany her at
the eviction, even though she knew Stansell posed a danger. The
allegations involve actions undertaken by Martinez-Garibay in connection
with serving the writ, a court directive she was required to obey. See § 22-
131(A). Even if Martinez-Garibay’s actions were negligent or grossly
negligent, a question on which we express no opinion, she was protected
by immunity because she was complying with the court’s directive. Nor
does an allegation of negligence or gross negligence constitute
“misconduct” within the meaning of § 11-449. We take no position on
whether Fox might be able to amend the complaint to allege that Martinez-
Garibay’s acts constituted misconduct under § 11-449, which would
establish a cause of action to which absolute judicial immunity would not
apply.

III. Remaining Issues

¶27 We need not reach the question of whether Martinez-Garibay
owed a duty of care to Angela as a matter of law. In addition, Fox conceded
at oral argument that if Martinez-Garibay’s acts in serving the writ are
shielded by judicial immunity, then Pima County cannot be vicariously
liable for those same acts. Thus, we also have no need to reach the
substantive question of vicarious liability.

Disposition

¶28 The respondent judge was correct to conclude that legislative
immunity does not protect the Board’s decision to appoint Martinez-
Garibay. The respondent erred, however, by finding that the constable’s
acts in service of a writ were not protected by judicial immunity. We
therefore accept jurisdiction and grant partial relief, vacating those portions
of the respondent’s ruling that are inconsistent with this opinion.

11