NEIL V. WAKE, District Judge.
Before the Court is Plaintiff's Motion for Partial Summary Judgment Against Andrew Thomas (Doc. 1028). After Plaintiff Stapley filed his motion, this Court ordered him to brief whether bar discipline proceedings could establish collateral estoppel in a subsequent civil action (Doc. 1033).
Defendant Thomas was disbarred in part for his participation in investigating and prosecuting Stapley. Stapley asserts the disbarment order "conclusively establish[es] that Thomas, in violation of 42 U.S.C. § 1983, retaliated against [him] for exercising his First Amendment rights. The Disbarment Order also establishes Thomas' liability on Supervisor Stapley's § 1983 and state law claims for wrongful institution of civil proceedings for his pursuit of the RICO Lawsuit." Doc. 1028 at 2. Stapley argues that collateral estoppel precludes Thomas from relitigating the factual issues underlying these claims and that summary judgment is warranted.
"Collateral estoppel, or issue preclusion, binds a party to a decision on an issue litigated in a previous lawsuit if the following factors are satisfied: (1) the issue was actually litigated in the previous proceeding, (2) the parties had a full and fair opportunity and motive to litigate the issue, (3) a valid and final decision on the merits was entered, (4) resolution of the issue was essential to the decision, and (5) there is common identity of the parties." Campbell v. SZL Properties, Ltd., 204 Ariz. 221, 223, 62 P.3d 966, 968 (Ct. App. 2003).
Because Stapley was not a party to Thomas's disbarment proceeding and cannot establish common identity, he relies on the doctrine of nonmutual offensive collateral estoppel. Doc. 1132 at 2.
There is some uncertainty as to whether Arizona law on nonmutual offensive collateral estoppel is, in fact, uncertain. See Am. Family Mut. Ins. Co. v. Clancy, 512 F.Appx. 674, 676 (9th Cir. 2013) (observing in dicta that "the law concerning offensive collateral estoppel in Arizona is unsettled"); Davis v. Metro Prods., Inc., 885 F.2d 515, 519 (9th Cir. 1989).
The anxiety is largely baseless. The great weight of Arizona authority prohibits private litigants from using the doctrine to seek affirmative relief. See Standage Ventures, Inc. v. State, 114 Ariz. 480, 484, 562 P.2d 360, 364 (1977) ("[A] party who is not bound by the judgment of an earlier lawsuit cannot take the initiative to invoke the judgment of the first suit, [i].e., rely on it offensively, to establish a necessary element of his case in a latter suit against one of the parties involved in the first litigation."); see also Clancy, 512 F.Appx. at 676 (noting in dicta that Standard Ventures, Inc. is Arizona's "final word on offensive collateral estoppel" and prohibits its use).
The Arizona Supreme Court has precluded a judge from relitigating findings supporting an out-of-state misdemeanor conviction when the Commission on Judicial Conduct subsequently commenced disciplinary proceedings against him. In the Matter of Marquardt, 161 Ariz. 206, 213, 778 P.2d 241, 248 (1989). But "[j]udicial disciplinary proceedings, like attorney disciplinary proceedings, are neither criminal nor civil, but are sui generis, " and the "the goal of judicial discipline is not to punish the judge but to protect the public and the judiciary's integrity." Id. at 214, 778 P.2d at 249.
Marquardt did not include a private litigant who relied on earlier findings to establish affirmative relief. Further, only one subsequent Arizona appellate decision has referenced Marquardt 's application of collateral estoppel. See Picaso v. Tucson Unified Sch. Dist., 214 Ariz. 462, 467, 154 P.3d 364, 369 (Ct. App. 2007) (determining that Marquardt provided no guidance on whether guilty pleas should be given preclusive effect), vacated, 217 Ariz. 178 , 171 P.3d 1219 (2007). Indeed, post- Marquardt cases analyzing nonmutual collateral estoppel have not interpreted Marquardt to allow private litigants to use it offensively.
To the contrary, the state court of appeals subsequently reaffirmed that Arizona does not generally allow nonmutual offensive collateral estoppel. See Campbell, 204 Ariz. at 223, 62 P.3d at 968 ("If the first four elements of collateral estoppel are present, Arizona permits defensive, but not offensive use of the doctrine.").
Any existing confusion arises from Wetzel v. Arizona State Real Estate Dep't, 151 Ariz. 330, 727 P.2d 825 (Ct. App. 1986). There, the court of appeals approved the state Department of Real Estate's offensive use of factual matters established in a previous disbarment hearing to revoke Manfred Wetzel's real estate license. Id. at 332-33, 727 P.2d at 827-28. The court noted that its decision "depart[ed] from prior case law, " id. at 333, 727 P.2d at 828, but considered it "appropriate under the circumstances" presented. Id. at 334, 727 P.2d at 829; see also id. at 333, 727 P.2d at 828 ("[T]he factual situation here calls for approval of the offensive use of the doctrine.").
The circumstances in Wetzel, however, involved one public licensing proceeding benefiting from the factual findings underlying another, in which both sought to protect the public from Wetzel's dishonesty, cf. id. at 332, 727 P.2d at 827, and in which the "procedural safeguards [were] comparable...." Id. at 334, 727 P.2d at 829. Indeed, narrowly read, the court of appeals need not have invoked nonmutual collateral estoppel at all, given the commonality of interest between the two state agencies. Wetzel, like Marquardt, involved particular circumstances in which there was no risk of windfall to a private litigant.
Thus, to the extent Wetzel endorsed the broader proposition that nonmutual offensive collateral estoppel applies generally-rather than specifically between state disciplinary agencies-it is dictum that contradicts the weight of Arizona authority.
Ultimately, there is no factually similar authority for allowing nonmutual offensive collateral estoppel where private litigants seek affirmative recovery. Even if the Court were to accept the premise that there is no controlling Arizona case law, however, weighty policy considerations militate against such an aggressive expansion of collateral estoppel. Attorney disciplinary proceedings are intended to protect the public. Giving those proceedings preclusive effect in subsequent litigation would significantly burden the ...