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Last Post 21 Jul 2014 12:00 PM by  James Kloss
R-13-0044 Petition to Amend Rule 67, Arizona Rules of Civil Procedure
 120 Replies
Author Messages
gtrachtenberg
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16 Sep 2013 04:22 PM
    R-13-0044

    Petition to Amend Rule 67, Arizona Rules of Civil Procedure

    Would eliminate requirement that plaintiffs who do not own property in Arizona post cost bonds in the trial court

    Co-Petitioners on behalf of the Arizona Association for Justice :

    Geoffrey M. Trachtenberg, Esq. (019338)
    Justin Henry, Esq. (027711)
    LEVENBAUM TRACHTENBERG, PLC
    362 North Third Avenue
    Phoenix, Arizona 85003
    (602) 271-0183, Fax (602) 271-4018
    gt@ltinjurylaw.com
    justinhenry@ltinjurylaw.com

    Richard S. Plattner (005019)
    PLATTNER VERDERAME, PC
    316 East Flower Street, P.O. Box 36570
    Phoenix, Arizona 85067
    (602) 266-2002, Fax (602) 266-6908
    rplattner@plattner-verderame.com

    Filed September 16, 2013

    Comments due May 20, 2014.

    ADOPTED effective January 1, 2015.


    Attachments
    lynn.goar@azbar.org
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    24 Oct 2013 06:02 PM
    Lynn Eric Goar
    Law Office of Lynn Eric Goar PC
    1955 W. Grant Rd. Ste. 125
    Tucson, Az 85745
    520-740-1447
    Lynn.Goar@azbar.org

    I have reviewed this petition to delete the requirement that certain plaintiffs post a cost bond in civil cases and I support it wholeheartedly. Insurance companies and big corporations have routinely used this requirement to prevent plaintiffs with valid claims from pursuing them in court. While I have defeated most requests for the posting of a bond, there have been other cases that have been dismissed. This is simply unfair to those plaintiffs with valid claims. The procedure for requesting and opposing the request for a bond unnecessarily adds time and costs to cases. This petition should be approved.
    jdsmith
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    05 Feb 2014 03:56 PM
    James Smith
    No. 016760
    2 N. Central Ave.
    Suite 2200
    Phoenix AZ 85004
    602-364-7000

    Arizona's existing rule is not unique by any stretch. For example, California, Nevada, and Florida have similar requirements, and I suspect a great number of other jurisdictions do as well. Indeed, LRCiv 54.1(c) imposes the same requirement in the U.S. District Court for the District of Arizona. Absent a compelling reason to deviate from what seems to be the norm in jurisdictions throughout the country, I would not approve this proposed change.

    josephatlaw
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    24 Feb 2014 12:49 PM
    Joseph D'Aguanno
    Harris Powers & Cunningham
    361 E. Coronado Road
    Phoenix, AZ 85004
    602.271.9344 (p)
    602.252.2099 (f)
    jdaguanno@hpc-lawyers.com
    AZ 020421

    Dear Justices,

    I support the proposed change to Rules 67(d) and (f), submitted by the Arizona Association for Justice in Petition R-13-0044.

    The current Rules impose financial requirements on plaintiffs alone and needlessly discriminates against "non-property owning" plaintiffs. There is no similar requirement imposed on defendants. The reality is that this one-sided sword-and-shield is routinely wielded by insurance companies, on behalf of defendant insureds, to inhibit "non-property owning" plaintiffs from pursuing valid claims. Rule 67(d) makes no distinction about whether the plaintiff’s
    case has merit, meaning that a defendant who has already harmed the plaintiff can now make it almost impracticable for the plaintiff to get justice. This is fundamentally unfair, and the process of requesting and opposing a cost bond needlessly wastes time, costs, and judicial resources.

    The Court should eliminate these one-sided, discriminatory rules.

    /s/ Joseph D'Aguanno
    cole@cds-law.com
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    24 Feb 2014 12:55 PM
    Cole D. Sorenson
    Law Firm: The law Office of Cole D. Sorenson PLLC
    Address: 1411 N. 3rd Street. Phoenix, AZ, 85004
    Phone Number: 602-374-8009
    FAX Number: 602-535-1201
    E-mail Address: cole@cds-law.com
    Bar Number: 013097

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    Cost bonds for plaintiffs are fundamentally unfair. While owning real property is still a goal that many try and obtain, for the masses, that goal may never be obtainable. So do we bar these individuals from the court house because they are not affluent? I hope not. These are the type people that need the most protection and access to the courts.

    Rules 67(d) and (f), which imposes arbitrary financial requirements on certain species of plaintiffs alone, needlessly creates an atmosphere of invidious discrimination against "non-property owning" parties at the expense of public confidence in an impartial judicial system.

    The only entity that profits from this rule is insurance companies. Elimination of this rule will once again provide a level playing field. Plaintiffs in this position are not asking for a windfall, just a chance to be treated fairly.
    spalumbo
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    24 Feb 2014 01:45 PM
    Scott I. Palumbo
    Palumbo Wolfe & Palumbo, PC
    2800 N. Central Ave., Suite 1400, Phoenix, Arizona 85004
    602-2655777
    FAX 602-265-7222
    spalumbo@palumbowolfe.com
    021271

    Dear Justices,

    I write in support of the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice, Petition R-13-0044.


    Rules 67(d) and (f) impose arbitrary financial requirements on certain plaintiffs (non-property owners, i,e. poor??????). As a result, those plaintiffs face hurdles to access the justice system that others (i.e. rich?????) do not. This is discriminatory and needs to end.


    ecrowley
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    24 Feb 2014 05:33 PM
    Gabriel D. Fernandez (016483)
    437 W. Thurber Rd. #16
    Tucson, AZ 85705
    520-293-6255
    Fax: 520-293-3937
    gfernandez@gdflaw.com


    I represent, and have represented many lower income clients with valid claims. The requirement that certain plaintiffs post a cost bond in civil cases is unfair to plaintiffs with valid claims, and serves to negatively impact lower income clients far more than clients with the financial means to post bonds; thus,effectively denying lower income clients access to the court system. As such, I support the approval of this petition.
    ahernandez
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    25 Feb 2014 10:43 AM
    Amy Hernandez
    PIccarreta Davis PC
    145 S. 6th Avenue
    Tucson, Arizona 85701
    520-622-6900
    520-622-0521
    ahernandez@pd-law.com
    022892

    I am writing in support of Petition R-13-0044. Rules 67(d) and (f) require a plaintiff to give security for the costs of the action if they do not own property in Arizona. The court shall fix the amount of security.

    Presumably a hearing would be necessary to hear evidence related to potential costs of the case and suggestions on the amount of security to be set by the court. This seems like a waste of time for courts that are already overloaded.

    Second, these rules target plaintiffs. Defendants are not required to show proof that they can pay any judgment obtained by plaintiffs. Defendants are not required to prove they own property in Arizona in case they must pay the costs of plaintiffs. The rules are completely one-sided and discriminatory against plaintiffs.

    Rules 67(d) and (f) just add another obstacle for plaintiffs. Interrogatories geared to Rules 67(d) and (f) and sent by defendants are generally used to intimidate plaintiffs. That should never be the intended or implied purpose of any tool under the civil rules.

    Please eliminate Rules 67(d) and (f).

    Very truly yours,

    Amy Hernandez
    Piccarreta Davis PC
    skivs11
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    25 Feb 2014 10:50 AM
    Ryan Skiver
    Warnock MacKinlay & Carman, PLLC
    7135 E. Camelback Rd., Ste F240
    Scottsdale, AZ 85251
    602.381.6669 - P
    602.381.6560 - F
    rskiver@lawwmc.com
    AZ Bar #024552

    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    I have and do represent many lower income plaintiffs who have valid claims and deserve equal access to the Courts of Arizona. Rules 67(d) and (f), impose arbitrary financial requirements on certain species of plaintiffs, which promoties an atmosphere of discrimination against "non-property owning” parties at the expense of public confidence in an impartial judicial system. Nobody should be denied access to the courts because of their financial standing, and the requirement that they own property or post a cost bond puts an unnecessary burden on many injured parties.

    Although most experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair for the past 20 or 30 years, the use of this mechanism has become more prominent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these one-sided, discriminatory rules, and give everyone equal access to the courts without the fear of financial repercussions that could destroy an entire family. Thus not only are these people injured by the negligent acts of the defendants in their cases they are injured by this requirement that they own property to pursue recovery for their damages.

    /s/ Ryan Skiver



    elliotglicksman
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    25 Feb 2014 11:12 AM
    i strongly support the elimination of costs bonds. The courts need to be open to everyone and the cost bond punishes the poor and effectively denies them access to the courts. Justice must not be limited to those that can afford it. Please eliminate these cost bonds.

    Elliot Glicksman
    The Law Office of Elliot Glicksman, PLLC
    145 S 6th Ave
    Tucson, Ariz. 85701
    elliot@glicksmanlaw.com
    520-628-8878
    fax 520-882-8618
    lance@entrekinlaw.com
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    25 Feb 2014 11:39 AM
    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) and am writing in support of Petition R-13-0044.

    The current rules at issue originated in a time when access to the courts was thought to be legitimately linked to property ownership. That time, thankfully, has passed.

    I represent many indigent clients and can report that on some occasions, these provisions have been invoked against my clients. In each instance it was a strategic move by defense counsel to place additional financial burdens on indigent litigants and the attorneys who represent them, in order to gain an advantage in settlement negotiations. Never in my experience did it ultimately provide security to a defendant who later became entitled to security and would not otherwise have had it. In other words, it burdens indigent plaintiffs without accomplishing its stated objective, in my experience.

    I would strongly urge the Justices to adopt the proposed changes.

    /s/ Lance Entrekin
    The Entrekin Law Firm
    One East Camelback Road
    #710
    Phoenix, Arizona 85012
    602-954-1123
    Fax: 602-682-6455
    lance@entrekinlaw.com
    Bar #016172

    rhinsch
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    25 Feb 2014 12:06 PM
    Randall A. Hinsch
    P.O. Box 36570
    Phoenix, AZ 85067-6570
    ph:(602)266-2002
    fax:(602)266-6908
    rhinsch@plattner-verderame.com
    #010280

    I am writing in support of Petition R-13-0044. The rule is clearly meant to block the courthouse doors to those who are not affluent enough to be able to post the cost bond. Imagine if one had a son or daughter just starting out in life, recently graduated college, just got their first job but still rents an apartment and has not yet accumulated sufficient assets or funds and that child gets injured by a drunk driver and the billion dollar insurance company backing up the drunk demands the son or daughter post a cost bond. The young adult cannot. The billion dollar insurance company's drunk gets to walk away from the damage done to someone's child and the insurance company, of course, saves money. That is how the rule works. The rich are treated better, have access to the courts the poor do not so that they can walk away from the damage they have inflicted. This is not the life lesson I want to teach my kids.
    lcoben
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    25 Feb 2014 12:06 PM
    Larry E. Coben
    8700 E. Vista Bonita Dr., Ste. 268
    Scottsdale, AZ 85255-3203
    lcoben@cobenlaw.com

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted and I am writing in support of Petition R-13-0044.

    Rules 67(d) and (f) impose financial requirements on plaintiffs which are in my opinion needless and create circumstances which discriminate against "non-property owning” parties who do not have the financial means to satisfy this obligation --- and which can force impecunious plaintiffs out of the judicial system.

    Although most experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair to plaintiffs who cannot afford to obtain a bond, some parties have pursued cost bonds since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these one-sided, discriminatory rules.
    chris@bcazlaw.com
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    25 Feb 2014 12:06 PM
    H Christian Bode
    Bode & Collins, P.L.C.
    7377 E. Doubletree Ranch Road #210
    Scottsdale, AZ 85258
    480.355.5020
    480.355.5021 (fax)
    Chris@bcazlaw.com
    Bar No. 0007346

    I am writing in support of the proposed amendment to Rule 67. For years, based on a string of Superior Court decisions finding Rule 67 to be unconstitutional, this Rule has not been invoked by defendants and the system has operated just fine. My practice consists entirely of civil tort litigation and in the last twenty five years I have never seen a plaintiff required to post a cost bond. In fact, notwithstanding the Court of Appeals opinion in Thiele v. City of Phoenix, I do not know of an entity that provides security bonds of the type contemplated under the rule.

    Moreover, the current rule is superfluous. The vast majority of civil cases settle with each side bearing its own costs. Requiring a motion for the posting of security for costs, a hearing to determine the amount of the security, the submission of presumably cash to the court as secutity for those costs, and then the relinquishment of the security when the case settles, will only add to the court's (and the parties') paperwork, workload and costs.

    Finally, the rule is unfair. Cost bonds are required only of Plaintiffs even in cases where the defendant has admitted liability and the only issue to be adjudicated is the amount of damages owed by the defendant.

    If the purpose of the rule is to deter frivolous litigation, Rule 11 and A.R.S 12-341 already provide that deterrent to lawyers and their clients and do so in a more efficient and even handed way.

    Chris Bode

    mcclellanlawaz
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    25 Feb 2014 12:10 PM
    Matthew L. McClellan
    The McClellan Law Firm, PLC
    361 E. Coronado Road, Suite 101
    Phoenix, AZ 85004
    602-386-4800 (phone)
    602-386-4801 (fax)
    matt@mcclellanlawaz.com
    022586

    Dear Justices,

    I have had an opportunity to review the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice. I write in support of Petition R-13-0044.

    Rules 67(d) and (f), have the unfair effect of preventing less affluent plaintiffs from pursuing legitimate claims. These Rules are being used (and abused) by large and wealthy insurance companies to bar the court house doors to those with legitimate cases who do not have the financial resources to own property in Arizona.

    Moreover, this rule is unfairly directed at Plaintiffs, only. Defendants are not required to prove they own property in Arizona in case they must pay the costs of plaintiffs. The rules are unfairly discriminatory against plaintiffs.

    I urge the Court to eliminate these one-sided, discriminatory rules.

    /s/ Matthew McClellan
    voightmann
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    25 Feb 2014 12:18 PM
    Craigg M. Voightmann
    Voightmann Law Firm PC
    16700 N. Thompson Peak Pkwy., Suite 110
    Scottsdale, Arizona 85260
    (480) 348-5000
    craigg@voightmannlaw.com
    SBN 018678

    Dear Your Honors:

    I have read the proposed changes to Rule 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    The requirement for a cost bond seems wholly unnecessary, discriminatory all while limiting access to the Court. In my experience Maricopa County Superior Court Judges routinely deny requests for these bonds on the grounds they are unconstitutional.

    Why doesn't the current Rule allow for the plaintiff to seek a cost bond against the defendant?

    The current version of the Rule is simply used as an harassment tool or technique by those with power, resources and money. Has any defendant ever collected on a cost bond?

    Respectfully submitted,

    Craigg M. Voightmann
    nick.moceri
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    25 Feb 2014 12:36 PM
    Nicholas A. Moceri
    Moceri & Kille, PLLC
    Prescott Valley, AZ 86314
    928-778-2444
    nick@northernarizonainjurylaw.com
    006038

    Justices:
    I have been a trial lawyer in Arizona since 1979. I practiced in Illinois and Missouri for three years before moving here, and I never ran into anything like Rule 67. Fortunately, I did not face a motion for Rule 67 cost bond until 2012.

    The rule makes no sense. Half the population rents their abode and lives from paycheck to paycheck. By what reasoning should those persons be precluded from exercising their legal rights in court?
    As a practical matter a paycheck to paycheck plaintiff cannot give "strict proof of inability to give the security" and the would have to make a decision whether to forego normal purchases of his or her daily life to put up the cash. No cost bond would be obtainable without security, in my experience, and if that security existed the motion for a cost bond would not have been granted in the first place.
    One should also consider that according to the language of subsection (d), a residence with equity of less than $150,000 should not be considered property meeting the requirements of the rule because it cannot be executed against to pay costs.
    My experience with the Rule is in personal injury litigation where the attorney hired by the insurance company uses the rule a tactic to oppress the plaintiff during litigation in which the insurance company already knows it will pay the plaintiff but is arguing over how much. The company knows it will never actually try to collect costs. The company also knows that it will never be required to post a bond for costs. The actual defendant runs no risk since he is not incurring costs, the insurance company is. This imbalance of power applied to access to the courts in indefensible in an environment where in excess of 99.5% of the litigated matters are settled.
    The Rule has several other deleterious effects. It wastes judicial time. Motions and Responses and Affidavits have to be read, evaluated and ruled upon. Furthermore, information regarding the Plaintiff which is irrelevant to the proceedings is given to Defendant. I am referring to Plaintiff's financial information that could be used by Defendant to Defendant's advantage in settlement negotiations.
    The Rule is discriminatory. It is the result of a bias that it is the plaintiff who is causing the matter to be litigated. It ignores the fact that plaintiffs file lawsuits when Defendants have committed a ciivil wrong causing inujry for which the Defendant has failed to hold itself accountable. The fees for filing a Complaint and for service of process are onerous enough. The provision for a cost bond is too much. While there may have been actual concerns about collecting costs when the Rule was first passed, the practical effect has been its use by the rich as a weapon against working class plaintiffs. The Amendment should be adopted.

    /s/ Nicholas A. Moceri
    bgrysen
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    25 Feb 2014 12:47 PM
    B. Elliot Grysen
    806 River
    Spring Lake, MI 49456-1953
    800-727-1470
    bgrysen@hotmail.com

    Justices:

    I have been practicing law in Arizona since 1987. I am writing in support of the above referenced Petition to Amend Rule 67.

    Rule 67 has been used as a sword to attack several of my clients after filing a medical malpractice claim. In the latest example, long time Arizona residents who sold their home and were living in a retirement apartment became the target of the Defendants in a one sided arbitrary financial requirement because they no longer owned a home.

    It was nearly impossible to explain to them why the court would require a cost bond in order to bring what they believed, and experts supported, was a meritorious claim for injuries suffered.

    The court should eliminate this discriminatory rule. I would be happy to present other client examples if requested.

    Respectfully submitted, B. Elliot Grysen
    mnapierpc
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    25 Feb 2014 12:49 PM
    Michael Napier
    NAPIER, COURY & BAILLIE, P.C.
    2525 East Arizona Biltmore Cir.
    Suite 135
    Phoenix, Arizona 85016
    (602) 248-9107
    mike@napierlawfirm.com
    State Bar No. 002603

    Dear Justices,

    I recently became aware of the proposed changes to Rules 67(d) and (f) and am writing in support of Petition R-13-0044.

    The requirement of a cost bond will, for an injured indigent person, mean the difference between having access to the courts -- or not. No one should be deprived of his day in court because of poverty. It is my hope the Court will eliminate the bond requirement.

    Thank you for your consideration.

    /s/ Mike Napier
    ssaks
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    25 Feb 2014 12:55 PM
    Sam Saks
    3003 N. Central Avenue, Suite 600
    Phoenix, AZ 85012
    602-200-1022 (phone)
    602-200-0106 (fax)
    ssaks15@gmail.com
    Bar no. 024260

    This change is a reasonable solution to a problem of access to justice. The fact that other states may have such a requirement does not matter. Arizona has, and should continue to, take a leading role in improving access to justice.
    Joe
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    25 Feb 2014 12:56 PM
    Joseph M. Leal
    Cole & Leal, P.A.
    420 W. Casa Grande Lakes Blvd. N.
    Casa Grande, AZ 85122
    (520) 836-8002
    FAX (520) 836-8002
    Joe@coleandleal.com
    AZ Bar # 012787

    I am writing in support of Petition R-13-004.

    Many of my clients are ordinary, working people living paycheck to paycheck. Most often, they are up against billion dollar insurance companies that have forced matters to litigation at a time when my clients are struggling with medical expenses and lost wages occasioned by their injuries. The requirement of a cost bond under Rule 67 functions as an impediment to their access to justice, and reinforces the perception that the deck is stacked against ordinary citizens.

    Over the course of my practice, I have seen many experienced trial judges recognize that the cost bond rules are fundamentally unfair and actively seek any rational basis to deny the imposition of such bonds. Given the ruling in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), I fully anticipate insurers and defense counsel to resort to such tactics with more frequency.

    Subsection (e) provides little comfort to such ordinary citizens, forcing them to air their financial condition in an embarrassing and demeaning manner. The Court should simply eliminate these one-sided, discriminatory and demeaning rules.

    /s/ Joseph Leal
    bonniedombrowski
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    25 Feb 2014 12:58 PM
    Bonnie Shore Dombrowski
    Jacoby & Meyers Law Offices
    2343 E. Broadway
    Suite 112
    Tucson,Az. 85719
    520-622-2350 phone
    520-622-2350 facsimile
    bdombrowski@jacoby-meyersaz.com
    Az Bar # 011981

    Dear Justices:

    I am writing in support of the petition to amend Civil Rule 67, and eliminate the requirment for persons to post bonds if they do not own real property in Arizona. It is a hurdle that lower income clients cannot meet, and closes their access to the courthouse and to justice. It also places a burden on out of state litigants that do not own property within the state. To have a two tier system, by requiring a hurdle to the non real property owner, that a real property owner does not have to submit to, is patently unfair and undermines the public's confidence in the fairness of our judicial system. It gives certain claimants access to the courthouse that can be denied to others if they cannot meet the financial requirments of a bond.

    Due to the foregoing, I ask that you amend Rule 67 and eliminate the requirment of a cost bond for a claimant that does not real property within the state.

    Sincerely,
    Bonnie S. Dombrowski
    JPL
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    25 Feb 2014 01:00 PM
    John P. Leader
    The Leader Law Firm
    698 E. Wetmore, #330
    (520) 575-9040
    (520) 575-9230 fax
    John@leaderlawaz.com
    State Bar No. 012511

    Dear Justices,

    I write in support of Petition R-13-0044, which proposes changes to Ariz.R.Civ.P. 67(d) and (f). This Petition is submitted by the Arizona Association for Justice.

    Rule 67(d) provides:

    (d) Security for costs; when required; bond and conditions.

    At any time before trial of an issue of law or fact, on motion of the defendant, supported by affidavit showing that the plaintiff is not the owner of property within the state out of which the costs could be made by
    execution sale, the court shall order the plaintiff to give security for the costs of the action. The court shall fix the amount of the security, the time within which it shall be given and it shall be given upon condition that the plaintiff will pay all costs that may be adjudged against the plaintiff, and authorize judgment against the sureties,
    if a written undertaking. If the plaintiff fails so to do within the time fixed by the court, the court shall order the action dismissed without notice.

    Rule 67(f) exempts certain governmental entities from 67’s requirements.

    These rules present a real and improper access to courts constitutional obstacle to certain plaintiffs and also makes the litigation process unfairly complicated for certain plaintiffs.
    Under this rule, if a Defendant shows that a plaintiff does not own property in the State, the trial “shall” (must) require that party to post security.

    In many instances, parties may not own Arizona real property because they lack the resources. Thus, Rules 67(d) and (f) would impose unconstitutional “cost bond” financial requirements only on certain plaintiffs – including those who lack the resources to own property here. These same people would also probably lack the resources to post the required security. While Rule 67(e) would provide relief to those financially unable to provide security, there is no just or sensible reason for making such plaintiffs jump through these hoops.

    These rules also potentially create unnecessary work for our trial courts, whose dockets are already overly congested. These rules also create a potential for abuse by opposing counsel, who might use them as a basis to “run the clock” and bill more hours.

    GMCullan
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    25 Feb 2014 01:00 PM
    Gene M. Cullan
    Law Offices of Cullan & Cullan, M.D. J.D.
    20830 N. Tatum Blvd., Suite 360
    Phoenix, Arizona 85050
    (602) 200-9999
    (480) 264-6658 Facsimile
    CullanG@cullanmedlaw.com
    AZ State Bar No. 012991

    Dear Justices:

    This correspondence concerns the proposed change to Rules 67(d) and 67(f) which was submitted by the Arizona Association for Justice. I have reviewed the proposed changes and am in support of Petition R-13-0044.

    The proposed changes are necessary to prevent discrimination against non-property owning parties. The rules are one-sided and as such are fundamentally unfair. Accordingly, the Court should eliminate these rules in favor of the proposed changes referenced above.

    Respectfully,
    Gene M. Cullan
    AZ State Bar No. 012991
    kpearson
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    25 Feb 2014 01:36 PM
    Karl S. Pearson
    PEARSON LAW, PLC
    4422 N Civic Center Plaza Ste 101
    Scottsdale, Arizona 85251
    Phone: (480) 820-1800
    Fax: (480) 707-5011
    kpearson@pearson-law.com
    Bar No. 014594

    Dear Justices:

    I strongly support the proposed change to Rules 67(d) and (f) as set forth in Petition R-13-0044.

    The current rule imposes an unfair and discriminatory financial burden on plaintiffs. For this reason, many defendants use the current rule as a weapon to prevent plaintiffs from obtaining justice.

    I have represented many injury victims who were not fortunate enough to own real property in this state. In a large portion of those cases, the liability of the defendant was not in question. As such, there was no doubt that my clients would prevail. The issue was the amount of the recovery. Despite this, defendants have occasionally sought cost bonds in such situations. While most of the motions were denied, there have been occasions where my clients have been ordered to post bonds. In some of those cases, my clients ended up accepting unreasonably low settlement offers because they were unwilling or unable to pay thousands of dollars for the bonds.

    For example, a few years ago my clients and I went to an oral argument on a motion seeking a cost bond. Before the hearing, the judge asked the parties to participate in an informal settlement conference. Settlement offers were exchanged and eventually the judge recommended that the plaintiffs accept an offer. When they refused, the judge asked the parties to go back to the courtroom where he proceeded to grant the motion for cost bond. The plaintiffs were ordered to pay several thousands of dollars or face dismissal of their claim. The case settled immediately thereafter for the offer the plaintiffs were previously unwilling to accept.

    In a case I recently took over, my client filed a pro per complaint seeking to recover just $5,000 from the defendant. The defendant, who was represented by counsel, filed a motion requesting a cost bond. The motion was granted and the plaintiff was ordered to pay $4,815 before she could proceed with her $5,000 case. Fortunately, the plaintiff was able to scrape up the funds to pay the bond and was recently granted summary judgment. Ironically, my client may not be able to recover her costs as the defendant is intimating that she will file for bankruptcy.

    These are just a few examples of how the current rule unfairly discriminates against plaintiffs. In my experience, the current rule is used as a weapon to force plaintiffs to abandon their claims or accept less than what they deserve.

    Sincerely,

    Karl S. Pearson



    micklevin
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    25 Feb 2014 02:26 PM
    Mick Levin
    Mick Levin, P.L.C.
    301 East Bethany Home Road
    Suite B-140
    Phoenix, AZ 85012
    602-263-1233
    602-230-7377 (fax)
    micklevin@mlplc.com
    Bar number 021891

    I have read the proposed Amendment to Arizona Rules of Civil Procedure 67 and write in support of it. The current Rule requires a civil plaintiff who does not own real property in Arizona to file a bond in an amount to be determined by the Court or to show good cause why they are unable to do so.

    In my experience, cost bonds are rarely requested and never granted. On the few occasions when a cost bond has been requested, it is usually made by obstreperous opposing counsel seeking to make the prosecution of a plaintiffs' case as difficult and costly as possible. When one is requested, the plaintiff usually requests a hearing and after an embarrassing examination and cross-examination, tells the Court, counsel, and anyone who happens to be watching about the meagerness of their assets.

    Defendants are exempt from the requirement of a cost bond. Unless punitive damages are in question in the case, usually a plaintiff has no means prior to obtaining a judgment to inquire about the assets of a civil defendant. The cost bond requirement unfairly requires a plaintiff to go through an embarrassing process of describing their assets without any showing that those assets will ever be necessary to pay a judgment against the plaintiff.

    The cost bond requirement unfairly prejudices and embarrasses plaintiffs. Therefore, I support the proposed Rule change to Rule 67.

    terryjackson0
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    25 Feb 2014 02:29 PM
    Terrence A. Jackson
    Law Office of Terrence A. Jackson
    1670 E. River Rd., Suite 200
    Tucson AZ 85718
    P: 520.617.0272
    F: 520.382.4959
    email: tjack@dakotacom.net
    SBA no.: 009732

    Dear Justices:

    This is in suppor to Petition R-13-0044, requesting amendment to Rules 67(d)(e) & (f), requiring cost bonds by plaintiffs who cannot demonstrate ownership of property out of which an award of costs could be paid. These rules serve no legitimate purpose, as set forth in the Petition, and inordinately impact poor people. Even where Rule 67(e) provides for relief, the burden of appearing and demostrating eligibility due to lack of ability to post the bond can be overwhelming. This impingement on the ability of many people to utilize the justice system differs very little from a property ownership requirement to be eligible to vote.

    In my almost 30 years of practice I have not seen these Rules used by defendants in any instance when I did not believe the sole purpose was to run the plaintiff out of the case. Likewise, in my experience there is simply no market within which to purchase such a bond. Even superscedeas bonds are impossible to get without securing the bond with cash or the equivilant. If required to post a cost bond, in almost all cases, the plaintiff will have to post cash. An injured claimant should not be denied justice because he or she cannot post several thousand, or even severa hundred, dollars with the court.

    For these reasons and those set forth in Petition R-13-0044, I respectfully ask that the Supreme Court grant said Petition.
    william.chick@azbar.org
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    25 Feb 2014 02:41 PM
    William S. Chick
    4500 N. 32nd Street, Suite 201C
    Phoenix, AZ 85018
    Phone: (602)954-7975
    Fax: (602)954-4629
    william.chick@azbar.org
    State Bar # 003387

    Please accept this comment in support of amending this antiquated and unfair Rule. It is currently being used as a bullying tactic by insurance company defense attorneys attempting to monkey-wrench the legitimate claims of persons who have been injured or suffered the death of a loved one. It serves no useful purpose other than to provide a basis for conjuring up billable hours that will feather the nest of the defense firms and distract otherwise deserving plaintiffs from being able to focus their efforts on pursuing their cases on the merits. In my 40 years of practice I have seen the use of this rule recur in episodic lurches of favor, then all the judges deny the relief and it crawls back into a hole for use at a later date. Get rid of it once an for all.
    kkgraham
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    25 Feb 2014 03:22 PM
    Kenneth K. Graham
    100 N. Stone Suite 901
    Tucson Az 85701
    (520) 622-7494
    (520) 62405583
    kk@risnerandgraham.com
    Arizona State Bar Number 007069

    I would like to join in those that are supporting this rule change. This rule discriminates against those of us in society that are most vulnerable-someone who has had to resort to legal process in order to attempt to right a perceived wrong and who is so poor s/he has no assets. It also is fundamentally flawed in allowing a defendant to file an affidavit, which is not subject to being contested, alleging that plaintiff has insufficient property to satisfy a cost award. If plaintiff, his case is can not convince the court that he has no assets, not just that posting a bond would result in a financial burden, the case is dismissed regardless of how meritorious the claim. Claims that have no merit can be resolved rather quickly using existing mechanisms such as Rule 11, Rule 12 and Rule 56. Defendants who are awarded costs can utilize the same mechanisms plaintiff's use when they are awarded costs. When you consider the problems with this rule together with the potential for abuse, there is no question that the petition should be granted and this rule removed.

    bta4369
    Posts:

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    25 Feb 2014 04:27 PM
    Brian Allen
    Udall Shumway
    1138 N. Alma School Road, Suite 101
    Mesa, AZ 85205
    (480) 461-5335
    (480) 833-9392
    bta@udallshumway.com
    017102

    I support the proposed changes to Rule 67. Cost bonds prevent access to the judicial system by those lease financially able to protect their rights. Why do we allow our rules of civil procedure to discriminate against non-property owners? The rule should be changed to reflect what judges and practitioners have belived for years--that the rule is fundamentally unfair and likely unconstitutional.

    Brian Allen
    sreed
    Posts:

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    25 Feb 2014 04:42 PM
    Steven L. Reed
    O’STEEN & HARRISON, PLC
    Attorneys at Law
    1757 East Baseline Road
    Building #3, Suite #111
    Gilbert, Arizona 85233
    Telephone: (480) 644-1558
    Facsimile: (480) 644-1695
    Email: sreed@vanosteen.com
    Bar #: 006951

    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    I have represented many hundreds of plaintiffs bringing personal injury lawsuits in Arizona. Many of these injury victims did not have substantial means and they only had access to the court system due to the filing fee I advanced and the contingent nature of my fee. In all of those lawsuits, the defendant never once was uncompensated for costs owed by the plaintiff.

    On occasion, the defendant’s attorney has attempted to invoke Rule 67 during litigation. In each of these cases, liability was clear and the plaintiff was ultimately successful. Rule 67 has been used more as an attempt to pressure the plaintiffs to settle their cases than to protect the costs advanced by the insurance companies. Additionally, many trial judges had ruled that Rule 67 was unconstitutional and would not enforce it. Unfortunately, the recent decision in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), has changed the landscape. Defendant’s interrogatories are asking more detailed information regarding our client’s financial wherewithal. With the current state of the economy, even a person who owns a house probably is not “the owner of property within the state out of which the costs could be made by execution sale” due to the homestead exemption from seizure. Home ownership does not protect a plaintiff under this rule.

    The change in the rule will help assure access to the courts for those accident victims who are most in need.

    /s/ Steven Reed
    lincolncombs
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    25 Feb 2014 04:47 PM
    Lincoln Combs
    602-530-8022 | lincoln.combs@gknet.com
    Gallagher & Kennedy
    2575 E. Camelback Road, Suite 1100
    Phoenix, AZ 85016-9225
    Main: 602-530-8000 | www.gknet.com



    There is no basis in law, equity, or logic for requiring plaintiffs to post cost bonds in order to proceed with civil claims. Rules 67(d) and (f) appear to be an anachronism wholly inconsistent with modern concepts of justice and a courthouse open to the public no matter their financial status. Rules that discriminate against the indigent or even just less-well-off reflect poorly on the ability of our judicial system to fairly protect all Arizona resident. And these rules also unfairly discriminate against out-of-state plaintiffs, a particular concern given our state's position as a tourist destination. These archaic rules serve no just or modern purpose and the Court should approve the Petition seeking their amendment and removal.
    sbseymann
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    25 Feb 2014 06:09 PM
    Commenter's Name: Scott B. Seymann
    Law Firm: Adelman German PLC
    Address: 8245 N. 85th Way, Scottsdale, AZ 85258
    Phone Number: 480-607-9166
    FAX Number (if you have one): 480-607-9031
    E-mail Address: Scott@adelmangerman.com
    Bar Number: 027215

    Dear Justices,

    I am writing in support of Petition R-13-0044 to change Rules 67(d) and (f), as submitted by the Arizona Association for Justice.

    The aforementioned Rules impose arbitrary financial requirements on plaintiffs who don't have the good fortune to own property. This effectively equates to a sanctioned form of discrimination, which does not comport with the ideals of a judicial system that aims to be fair and impartial. All plaintiffs are equally entitled to such a system, and there is no room for a rule that discriminates based on land-owner status. Such provisions conjure up imagery of medieval serfdom -- a system that has no place in a civilized democracy such as ours.

    Although the cost bond rules have been recognized as fundamentally unfair for the past several decades, the use of this cost bond mechanism has increased since Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should embrace Petition R-13-0044 and eliminate these one-sided, discriminatory rules. Thank you for considering this and all the other related comments supporting this proposed rule change.

    /s/ Scott B. Seymann
    Frank Verderame
    Posts:

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    25 Feb 2014 06:18 PM
    Frank Verderame
    Plattner Verderame PC
    316 E. Flower St.
    P.O. Box 36570
    Phoenix, AZ 85067-6570
    602-266-2002
    fverderame@plattner-verderame.com

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    For the 30 plus years that I have practiced law, I have believed this rule to be fundamentally unfair. When a drunk driver cripples my client, he is not required to post a bond to secure the judgment or prove that he/she has real estate in Arizona to cover the judgment. The drunk driver is not required to show proof that he/she has real estate or post a bond to cover the costs of the litigation either. So, why is it fair to impose that burden on one side of the litigation and not the other? And, how can such a fundamentally unfair rule meet constitutional muster?

    Also, Article 18 Section 6 of the Arizona Constitution says "Section 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation..." This rule abrogates the right to sue for indigent claimants and those made indigent as a result of the negligence of others.

    I have represented a client who was not indigent before being crippled by a drunk driver. The victim incurred so many medical bills as a result of the injuries suffered in the crash that he was rendered impecunious. Imagine the injustice of telling such an innocent victim that they cannot sue because they don't have property or cannot post a bond.

    Also, while this is not a statute, does the Court have the power to impose such a limitation by rule when the legislature cannot? Clearly, this rule violates the spirit of that clause. Isn't a requirement of real property ownership or the posting of a special cost bond exactly that type of limitation on the right to sue which is prohibited by Article 18 Section 6 of the Arizona Constitution?

    I believe that experienced lawyers and judges have recognized that the cost bond rules are fundamentally unfair. When he was a Superior Court Judge, Barry Schneider authored an excellent opinion which this Court should consider. The time has come to eliminate this artificial barrier to justice.
    mark@breyerlaw.com
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    25 Feb 2014 10:14 PM
    Mark P. Breyer
    15715 S. 46th St., Ste. 100
    Phoenix, AZ 85048-0439
    480-505-2160
    mark@breyerlaw.com

    Dear Justices:

    As with any rule, the real question presented is not whether "this is the way it has always been done" but, instead, what goal is being accomplished and how does this rule benefits parties in civil litigation in Arizona. I would suggest that this rule, while understandable in theory, has almost no value in application.

    I can only speak intelligently to the plaintiff's personal injury practice of law but. From that perspective, and speaking for the clients I have represented for many years, this is a one-sided weapon utilized by a small percentage of defendants/insurance carriers with the apparent goal of forcing otherwise deserving plaintiffs to jump through the procedural impediments or, in the alternative, walk away from their case.

    From my perspective, I have never seen this rule accomplish anything for any party. I have never had a client walk away from a case as a result of this rule. I have never had a client who had to post bond. But I have had many courts have to deal with briefing on the rule. Many conversations with extremely concerned clients (who may not even have liability issues from which they could realistically owe costs, yet still could face this application), and a large waste of time on a repeated basis. Unfortunately, others have not been as lucky, and apparently some deserving clients have lost access to the courthouse because they did not have the means to post bond but had enough that it was ordered.

    This rule has no value, is a tool for harassment, is a waste of court time and resources, and I would encourage this court to consider the value the rule has (if any) as opposed to the burden it places without demonstrable advantages for any party or for justice.
    swdlaw
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    26 Feb 2014 09:51 AM
    Sean W. Doughty
    Law Offices of Sean W. Doughty, PC
    11445 E. Via Linda, Ste 2, PMB 627
    Scottsdale, AZ 85259
    (480) 699-1540
    Fax: (480) 704-4297
    swdlaw@hotmail.com
    013521

    Dear Justices,

    I am submitting these comments in support of Petition R-13-0044 after having read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice.

    Rules 67(d) and (f) imposes arbitrary financial requirements on certain, and solely, plaintiffs alone, needlessly creating an creates an atmosphere of invidious discrimination against "non-property owning” parties thus potentially denying them access to the judicial system.

    For a significant number of years, most attorneys and Judges familiar with the cost bond rules have considered them fundamentally unfair however, the use of this mechanism has become more prevalent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, overruling the constitutional objections made by a pro per litigant.

    The proposed Petition would properly eliminate these one-sided, discriminatory rules.

    Sean Doughty

    jimmy.borunda
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    26 Feb 2014 02:19 PM
    Jimmy Borunda
    24 S. 30th Ave.
    Phoenix, AZ 85009-5075
    602-272-0379
    jimmy.borunda@azbar.org

    Dear Justices:
    The current rule is unfair to low-asset plaintiffs with valid cases and their attorneys who take many of those cases on contingency--especially because defendants have no equivalent obligations and don't even have to show they could satisfy any judgment granted to the plaintiff.
    Even though there is a procedure to avoid dismissal already, that requires a hearing--which is an unfair burden to both plaintiffs and their attorneys. If the REAL ISSUE is to prevent frivolous litigation, the remedy already exists through Rule 11 monetary sanctions.
    Negrete623
    Posts:

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    26 Feb 2014 02:37 PM
    Gil Negrete, Esq.
    Law Offices of Gil Negrete, P.C.
    1001 N. Central Ave. Suite 660
    Phoenix, AZ 85004
    P-(602)495-1005
    F-(602)253-7724
    E- negretelaw@qwestoffice.net
    AZ Bar # 026068

    In reviewing the petition to Amend Rules 67(d) and (f) Arizona Rules of Civil Procedure submitted recently by the Arizona Association for Justice, I support the petition R-13-0044. There must be an equal playing field for both Plaintiff and Defendant. We must rid our rules that continue to support one side versus another. I respectfully request The Court to amend this rule.

    Thank you.

    /S/ Gil Negrete
    jflynn@tucsonlaw.com
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    26 Feb 2014 04:22 PM
    Joey A. Flynn
    AZ Bar No: 015430
    Fein, Flynn & Associates, PC
    1670 E. River Road, Suite 200
    Tucson, AZ 85718
    Email: jflynn@tucsonlaw.com
    Direct: 520-547-7939
    Main: 520-547-7940 ex 2
    Fax: 520-547-7941
    Website: www.tucsonlaw.com


    To whom it may concern:

    I am writing in support of Petition R-13-0044.

    I have a civil injury and wrongful death practice. In my nearly 20 years of experience, I have only seen the cost bond rules (Rules 67(d-f)) used in attempt to intimidate and discourage legitimately injured plaintiffs from continuing with their litigation. Non-property owning plaintiffs seem the most intimidated by it. The rule is outdated, one-sided, and should be abolished.


    /s/Joey A. Flynn
    MHarrison
    Posts:

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    26 Feb 2014 04:42 PM
    Mark I. Harrison
    Osborn Maledon, P.A.
    602-640-9324
    602-640-9050 (fax)
    mharrison@omlaw.com
    1226

    I support the petition to eliminate the requirement in Rules 67(d) and (f) that force only plaintiffs to post "costs bonds" when defendants - usually insurance companies -- demand that they do so. So far as I am aware, there is no blanket justification for requiring only plaintiffs to bear such a burden in order to vindicate their rights in court. The current rules not only impose unfair and inequitable burdens on plaintiffs -- they also frequently involve a waste of judicial resources. The rules were initially adopted in 1901 --- 113 years of this kind of inequity is enough.
    hmwright
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    26 Feb 2014 05:47 PM
    H. Michael Wright
    Udall Shumway PLC
    1138 N. alma School Rd., Ste. 101
    Mesa, AZ 85201-3000
    480-461-5347
    hmw@udallshumway.com

    As Arizona is a frequent destination of Winter Visitors, vacationers, and business travelers, the requirement that a plaintiff own property within the State places an unfair burden on the ability of visitors to bring claims. Further, the Great Recession has led to the loss of homes of many persons. I urge passage of this amendment.
    sgeofeldman
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    27 Feb 2014 04:54 PM
    Stanley G. Feldman
    Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.
    One South Church Avenue, Suite 900
    Tucson, Arizona 85701-1620
    Tel: 520 792 3836
    Fax: 520 624 5080
    E-mail: sfeldman@hmpmlaw.com
    Bar No.: 000838

    I write in support of the petition to eliminate the rule providing for cost bonds.

    The existing rule obviously impedes access to justice of those who do not own property in Arizona, regardless of whether they are able to meet the cost bond requirements. The procedures for obtaining exemption from the rule simply add to the burden of litigation and require costly proceedings in terms of attorneys’ fees and judicial time. Applicable only to plaintiffs seeking access to our judicial system, the rule actually creates an image of hostility and provides defendants with one more tool to make litigation difficult.

    It might be said that the cost bond requirement has some virtue in that it ensures a successful defendant’s recovery of costs expended. But I submit that courts should not be concerned with assuring any side to litigation that it will actually be able to recover its costs, its award, or its attorneys’ fees. There are provisions in the law for awarding costs and attorneys’ fees to successful parties, and those are valuable tools. But nothing in the law should guarantee the ability of one side or the other to recover whatever their award might be.

    Finally, the rule, applying only to plaintiffs, damages public confidence in an impartial judicial system that should favor neither plaintiff nor defendant. We do not require defendants, by threat of default, to post a cost bond to assure a successful plaintiff’s recovery of costs. Why, then, require such from a plaintiff, unless we assume that there are more plaintiffs who file spurious lawsuits than there are defendants who maintain spurious defenses. There is no empirical evidence to support that idea, and in my opinion, such an assumption is unwarranted, let alone unsupported.
    ecrowley
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    28 Feb 2014 10:25 AM
    Bruce M. Hayman
    Bruce M. Hayman, PLLC
    2210 N 7th Street
    Phoenix, AZ 85006
    Haymo50@hotmail.com
    Bar No. 027892

    I have read rules 67(d) and (f) and support the petition. Posting a bond is an undue hardship on both out of state plaintiffs and poor plaintiffs.

    todstewart
    Posts:

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    28 Feb 2014 11:11 AM
    Tod L. Stewart
    Stewart & Torgersen, P.A.
    2999 N. 44th Street,Ste. 318
    Phoenix, AZ 85016
    tel(602)297-9300
    fax (602)265-6414
    tod@1800ourlawyer.com
    #018163

    Dear Justices,

    I am writing to express my support of Petition submitted by the Arizona Association for Justice and Petition R-13-0044.

    In my practice, I have seen Rules 67(d) and (f) used as a method of intimidation by insurance company defense lawyers to dissuade an injured victim of negligence from pursuing their constitutionally guaranteed right to recover for their harms and losses. It is insincere and clearly against the purpose of the rule when large, well funded insurance carriers are asserting their need of a guarantee of cost recovery. Those assurances of a recoverery of costs must be weighed against the denial of the constitutional right to access to the courts for "non-property owning parties." In my experience, the non-property owning parties are those who are less economically advantaged and they have already suffered loss of time at work, incurred medical expenses, and now are forced to provide assurances to the defendant's insurance company before they can recover for their losses. It results in fear and intimidation and can ulitimately result in a denial of a constitutional right. The true purpose of the Rule is not met and it used as a sword rather than the shield it was drafted to be.The Court should eliminate these one-sided, discriminatory rules.

    /s/
    ecrowley
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    28 Feb 2014 11:20 AM
    Herman C. Zickerman
    West, Elsberry, Longenbaugh & Zickerman, P.L.L.C.
    310 S. Williams Blvd., Ste. 250
    Tucson, AZ 85711
    (520) 790-7337
    (520) 748-0852
    Gib@welzaz.com
    AZ Bar No.: 003976

    Attachments
    jayciulla
    Posts:

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    28 Feb 2014 11:37 AM
    Jay L. Ciulla
    The Ciulla Law Firm, PLLC
    3030 N. Central Avenue, Suite 608
    Phoenix, AZ 85012
    Telephone (602) 495-0053 Ext. 102
    Facsimile (602) 258-7199
    Email: jay@ciullalawfirm.com
    AZ Bar No. 017971


    Dear Honorable Justices:

    I have read the proposed rule change and strongly support it. The current rule often closes the court house doors to out-of-state plaintiffs and Arizonans who simply don't own real estate. The current rule is a vestige of a bye-gone era that favored the landed class and is inconsistent with the principles of justice embodied in the Arizona Constitution.

    Regards,

    Jay L. Ciulla

    sammoeller
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    28 Feb 2014 11:46 AM
    Sam Moeller
    Law Offices of Samuel P. Moeller, PLLC
    1411 N 3rd St
    Phoenix, AZ 85004
    P: 602-374-8009
    F: 602-535-1201
    sam@spmoellerlaw.com
    State Bar No.: 025270

    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) and I am in support of Petition R-13-0044. Currently, Rules 67(d) and (f), impose and undue hardship on "non-property owning" plaintiffs.

    I represent many low income individuals who have never owned any real property and likely never will. The people that need protection the most are the same people that are harmed the most by the current form of the rule.

    The Court should eliminate these discriminatory rules.
    RDBohm
    Posts:

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    28 Feb 2014 11:49 AM
    Robert D. Bohm
    2141 East Camelback Rd.
    Suite 100
    Phoenix, AZ 85016
    602-957-7400
    rbohm@azpremiseslaw.com
    AZ Bar #: 005226


    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    Rules 67(d) and (f), are fundamentally flawed in that they limit access to the courts based simply on whether an individual owns property in the State of Arizona. As a result, younger citizens, lower income citizens, and others that have not been able to accumulate the wealth to acquire property can be denied access to the courts simply because of their financial status. Such limitation undermines public confidence in an impartial judicial system. Arizona has been fortunate to be at the forefront and a real leader in judicial reform. Petition R-13-0044 is a next logical step in creating open access to the courts.

    Numerous Superior Court judges have ruled on the constitutionality of Rule 67 and have limited its application for the last 25 years. Unfortunately the use of this rule in restricting court access has become more prominent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these unbalanced, flawed, discriminatory rules and approve Petition R-13-0044.
    ajm
    Posts:

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    28 Feb 2014 12:09 PM
    A.J. Mitchell, Esq.
    Law Office of A.J. Mitchell, PLC
    14555 N. Scottsdale Road
    Suite 170
    Scottsdale, AZ 85254
    (480) 595-6800 – Tele
    (480) 595-6966 – Fax
    AJM@ajmlawoffice.com
    Bar # 021244

    I support the petition to Amend Rule 67, Ariz.R.Civ.Pro. Requiring Plaintiffs to post a cost bond for not owning property in Arizona does not serve the interests of justice. It discriminates against indigent Plaintiffs and those who do not have the means to purchase a home. In all of our cases in which Rule 67 is invoked, it is the defendant insurance companies using this rule as a sword against an unarmed, usually poor, Plaintiff as a method of intimidation.
    rnedwards6
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    28 Feb 2014 12:09 PM
    Robert Edwards
    2150 3rd Avenue
    Suite 300
    Anoka, MN 55303
    763.427.1400
    re@rnelaw.com
    Bar # 020813

    I have reviewed the Petition and believe that the proposed amendment would be in the best interests of justice. Just because an injured person is poor or a non-resident is no reason to add to their burden by requiring a bond. It would seem that this Rule as it exists is a holdover from a different time, when discrimination against visitors to Arizona may have been appropriate. Given the significant economic benefit to Arizona from today's tourism leads me to think that if this same Rule were proposed today it would be defeated. Furthermore, the recent Arizona Court of Appeals decision will now invigorate attempts to exact these bonds, attempts which I rarely saw in the past. It will just add to the cost and burden of litigation, without any real benefit.
    hofmannlaw
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    28 Feb 2014 12:35 PM
    Paul G. Hofmann
    HOFMANN LAW OFFICES, PLLC
    7440 N. Oracle Rd., Bldg. 5
    Tucson, AZ 85704-6379
    (520) 797-1041
    (520) 797-1491 fax
    hofmannlaw@comcast.net
    AZ State Bar No. 015457


    Dear Justices:

    I've been a civil attorney, representing both defendants and plaintiffs, for nearly 24 years. I've dealt with this rule multiple times, and for the life of me, I don't understand its purpose or necessity.

    In my view, this antiquated rule harkens back to the days when voters were required to be property owners just to exercise their fundamental right. Shouldn’t we make access to justice simpler and fairer, similar to the expansion of the voting franchise?

    I also frequently tell my family, friends, and clients that the judicial branch of government is by far the most responsive and accountable to individuals. Each of us has the right to hold the most powerful person or corporation responsible when they do something wrong. Rules 67 (d) and (f) only serve to inhibit that accountability, not to enhance it.

    I urge you to adopt the changes.

    Respectfully,

    Paul G. Hofmann
    jtt@ashrlaw.com
    Posts:

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    28 Feb 2014 12:45 PM
    J. Tyrrell Taber
    Aiken Schenk Hawkins & Ricciardi PC
    2390 E. Camelback Rd. Ste. 400
    Phoenix, AZ 85016-0001
    602-248-8203


    I am in favor of R-13-0044.

    I have practiced law in Arizona since 1978. I have dealt with Rule 67, from the the defense and plaintiff's side. I have always feel that there is something fundamentally wrong with a Rule that denies access to the courts based on ownership of property. While i am fully aware of the affidavit exception, this Rule when invoked leads to protracted, unproductive game playing by defendants, and inserts the Courts into the process for no good reason. It had been relegated to its proper place, non-use, in light thoughtful analysis and minute entries from the Superior Court. Since Thiele, is back in play and back with a vengeance. It is a mean-spirited rule and should be abolished. Ty Taber
    jjamies
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    28 Feb 2014 12:56 PM
    Jonathan Jamieson
    (Bar No. 024967)
    Michael Cordova, P.C.
    1700 N. 7th Street
    Phoenix, AZ 85006
    (602) 265-6700
    (602) 265-5269
    jonathan@mcordova.com

    I have reviewed the Petition to Amend Rule 67 of the Arizona Rules of Civil Procedure and write in support of the proposed change.

    The Rules of Civil Procedure stand as a guide to level the playing field and promote fairness in judicial resolution of disputes between adverse parties. The very purpose of the rules is to secure the "JUST, speedy, and inexpensive determination of every action." (Ariz. R. Civ. P. 1).

    Rule 67 should be amended for several reasons:

    1) It is a one sided tool that serves as a sword for Defendants. The rule only contemplates the filing of a cost bond by a plaintiff. There is no similar rule that would require a defendant to do the same.

    2) Rule 67 does not take into account the merits of the underlying claim. In determining if a cost bond is necessary, a court can only take into account the financial position of the plaintiff. Whether the plaintiff is likely to succeed on his/her claim is irrelevant. The net effect is that complaints that are highly likely to succeed on their merits are subject to dismissal simply due to the economic status of the plaintiff.

    3) If a costs bond is ordered, a plaintiff is required to disclose details of his/her financial status that is not contemplated anywhere else in the Rules. Again, there is no similar requirement that a defendant disclose any similar information. Disclosure of this information is not only invasive, it provides irrelevant information to an adverse party and may have negative effects on attempts at settling a claim.

    Rule 67 stands out as rule that gives an unfair advantage to one category of litigants: defendants. This advantage has the distinguishing characteristic as being based solely on financial status. The rule limits access to the civil justice system without any consideration as to the merits of a plaintiff's claim. The proposed amendment should be adopted, so as to keep the playing field even for all participants.
    John Gravina
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    28 Feb 2014 12:59 PM
    John A. Gravina
    Sole Proprietor
    3546 N Euclid Ave
    Tucson AZ 85719
    520.795.4330
    e. John.Gravina@Azbar.org
    SBN: 013012

    Your Honor(s),

    Please accept this as support for the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice (AAJ) and support Petition R-13-0044.

    Rules 67(d) and (f), imposes arbitrary financial requirements on non-property owning consumers, brutally preventing them from pursuing their cases at the expense of public confidence in an impartial judicial system. The court should do all it can to remove the image of patronage appointments that protect the powerful. What consumer can obtain a cost bond? Who writes these things?

    Most fair minded lawyers and judges recognize that the cost bond rules are unfair. The use of this mechanism has become more prominent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    Please restore public confidence by removing this unfair bar to non-property owning consumers.

    Thank you for your consideration.
    Michael.Bell
    Posts:

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    28 Feb 2014 01:32 PM
    Michael J. Bell
    Busby, Bell & Biggs, P.C.
    1241 E Prince Rd
    Tucson AZ 85719
    (520)293-0344
    FAX: (520)293-8347
    mike@busbylaw.com
    Bar Number 009020


    Dear Justices:

    I am writing in support of the petition to amend Civil Rule 67 to eliminate the requirement for persons to post bonds if they do not own real property in Arizona. The courts need to be open to everyone and cost bonds punish the poor and effectively deny them access to the courts and to justice. Justice should not be limited to individuals that can afford it.

    I am asking that you amend Rule 67 and eliminate the requirement of a cost bond for a plaintiff who does not own real property within Arizona.

    Sincerely,

    Michael J. Bell
    111750dra
    Posts:

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    28 Feb 2014 02:33 PM
    Donald R. Alvarez
    Alvarez & Gilbert
    14500 N. Northsight Blvd.
    Ste. 216
    Scottsdale, AZ 85260
    602-263-0203
    480-686-8708 fax
    dalvarez@alvarez-gilbert.com
    006160

    Dear Justices:

    I have been practicing for over 38 years (34 in AZ) and I have never understood the reasoning requiring a non-AZ-property-owning Plaintiff with a claim here in AZ to post a Costs Bond with the Court. Regardless of the Plaintiff's financial circumstances, unfortunately, this Rule imposes yet another impediment to not only lesser income Plaintiffs, but also to all Plaintiffs, in seeking redress through our Court system. First, a plaintiff is saddled with a big filing fee and then service fees. After that, each Court filing, now required to be electronically filed in Maricopa County at least, costs $6 a shot. Add to that all of the other taxable and non-taxable costs associated with litigation (not to mention attorneys fees), a Plaintiff will endure substantial hardship bringing and litigating suit. Do we really need to keep imposing further financial burdens on a Plaintiff? Should not the purpose of our Rules be to make the Courts more accessible to parties with legitimate claims? Rule 67(d) flies in the face of that purpose.

    Also, how often are Costs Bonds even tapped for costs incurred by a successful Defendant? How often is this Rule even invoked in cases? Are any statistics available? Shouldn't statistics be kept so it can be determined whether this Rule is even necessary to accomplish the purpose for which it was adopted (whatever that was...the reasoning is not stated in the Rule books)? If there are no statistics being kept, that tells me the Costs Bonds are not being tapped and they are unnecessary.

    Thus, the threshold question is whether this Rule is even necessary. I submit that it is neither necessary nor fair. All it does is impede Plaintiffs from bringing their claims in a Court system that is supposed to be set up to provide claimants with readily available access to justice. Rule 1, ARCP says that these Rules "shall be construed to secure the just, speedy, and inexpensive determination of every action." So how does Rule 67(d) fit this purpose? It does not.

    Get rid of it.

    thank you.

    Don Alvarez.


    ecrowley
    Posts:

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    28 Feb 2014 02:37 PM
    William C. Bacon
    33 N. Stone Ave. 900
    Tucson, AZ 85701
    520-879-7165
    Fax- 520-620-3991
    wbacon@goldbergandosborne.com
    Bar No. 004895

    Dear Justices:

    I support the proposed changes to Rules 67(d) and (f) as set out in Petition R-13-0044.
    The concept that a plaintiff must own property to participate in the justice system is archaic at best and discriminates against the poor at worst. It is also invites a significant waste of judicial resources.
    I recently dealt with Rule when, after a year of litigation, weeks before trial, a defendant demanded a cost bond. My client is permanently disabled due to his accident related injuries and had to relocate to California to be cared for by his daughter. His only income is a modest Social Security payment. Per the rules the trial judge set a hearing after motions and oppositions were filed. The request for the bond was properly denied but not before a lot of the precious time leading up to trial was spent in addressing the issue. It was an extraordinary waste of time.
    I agree that the court should eliminate this very unfair and one-sided rule.
    Thank you.
    William C. Bacon
    adammartinez
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    28 Feb 2014 03:18 PM
    Adam D. Martinez, No. 025614
    Martinez Law, PLC
    1640 S. Stapley Dr., Ste. 127
    Mesa, AZ 85204
    602-730-1005
    602-419-2106 (fax)
    adam@martinezlawaz.com

    The Court should approve the Petition seeking to amend Rules 67(d) and (f). Requiring plaintiffs to post cost bonds in order to proceed with civil claims does not make sense, particularly as it relates to those with legitimate claims, who are entitled to a just result but lack financial resources. It places an unreasonable and arbitrary burden on plaintiffs without serving a legitimate interest.
    natecooley
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    28 Feb 2014 03:27 PM
    Nathan C. Cooley
    Nathan C. Cooley, P.L.C.
    1744 S. Val Vista Dr.
    Suite 201
    Mesa, AZ 85204
    T: (480) 214-4741
    F: (480) 240-1340
    E-Mail: nate@ncooleylaw.com
    Bar No. 024678

    Dear Justices:

    I am writing in support of the proposed changes to Rule 67(d) and (f) which changes are set forth in Petition R-13-0044.

    The current version of the rule imposing a cost bond on non-property owners is unfair and burdensome. Worse, the rule has the effect of singling out the poor and makes it much more difficult for the indigent to seek redress through the courts. I agree with what has been eloquently written above by my colleagues in support of the petition.

    Thank you.

    Nate Cooley

    mdrich1
    Posts:

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    28 Feb 2014 03:29 PM
    Michael D. Rich
    Burke Panzarella Rich
    2198 E Camelback Rd., Ste 375
    Phoenix, AZ 85016
    602/222-4848 p
    602/222-4858 f
    mrich@bprlaw.com
    Bar Number 015979

    Dear Justices,

    I have been a personal injury attorney for nearly 20 years. I have represented both plaintiffs and defendants. I have had an opportunity to review the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    The current rule imposes financial requirements that are not fair for all Arizona citizens. A person who does not own property in the state is required to post a cost bond if they wish to file an appeal. Many people do not have the means to do so which limits their rights and availability to the justice system. Cost bonds are fundamentally unfair and should be eliminated. This is why the proposed changes make sense and should be adopted. It is an important issue. I appreciate your sincere consideration of the proposed changes. Arizona citizens should feel confident in their ability and right to seek justice if they deem it necessary, the amount of money they have should not be a barrier.

    Mike Rich
    krista.mccarthy
    Posts:

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    28 Feb 2014 03:40 PM
    Krista McCarthy
    5080 N. 40th Street, Suite 455
    Phoenix, AZ 85018
    602-680-7300
    Fax: 602-595-1655
    krista.mccarthy@me.com
    SBN: 026969

    Re: Petition R-13-0044

    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044. I have witnessed the unjust and harassing effects of this archaic rule first-hand and recognize the immediate need for change. Since the Court of Appeals issued its decision in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), defendants use of Rule 67(d) has increased exponentially and those that suffer are those that can least afford it; plaintiffs that do not own property in Arizona.

    My first encounter with Rule 67 was just last year, 2013. The defendant in a case in which I was prosecuting on behalf of a working-class plaintiff moved the court to impose a cost bond upon my client. The defendant reasoned that because the plaintiff did not own property in Arizona, he should be forced to post a cost bond in the amount of $20,000.00 to ensure that should the defendant prevail at trial, his related costs of defense would be covered.

    Immediately after the Rule 67 motion was filed, I contacted defense counsel to discuss the fact that the Plaintiff was destitute and was not financially able to post a cost bond. I avowed that the plaintiff could prove his poverty through an Affidavit of Financial Affairs, and I requested defendant withdraw the motion. The defendant denied this request and the matter was ultimately heard before a respected Superior Court Judge at oral argument.

    Before the oral argument, the promised Affidavit of Financial Affairs was filed. This affidavit showed that the Plaintiff made less than $40,000.00 per year and his expenses far outweighed his income. At oral argument, the judge’s response to plaintiff’s affidavit and accompanying plea to not impose a cost bond upon him was “I do not have a choice. The rule states I shall impose a cost bond, so I must.” And so it was ordered.

    Immediately after the order was issued, plaintiff refiled the Affidavit of Financial Affairs as allowed by Rule 67(e). The defendant chose not to object to the affidavit, and ultimately the court vacated the order to post the cost bond.

    Ultimately the defendant’s Rule 67(d) motion did nothing to advance either party’s position, financially or legally. However, this experience had the real-life effect of forcing the plaintiff to spend weeks trying to calculate how he was going to come up with the money for the cost bond while at the same time facing the reality that if he could not come up with the money, the court will dismiss the lawsuit. In fact, a mandatory dismissal is a “shall” pursuant to Rule 67(d). Not only is the court required to dismiss the lawsuit if the plaintiff has not posted a cost bond by a specified date, but the court will do so without giving notice to the plaintiff.

    The experience detailed above was enlightening. I learned that not only does Rule 67(d) impose a significant and discriminatory barrier between non-property owning plaintiffs and their right to trial, but it also allows the defendant to gain a significant insight into the financial psyche of their adversary. Please consider these chilling consequences and adopt the changes proposed in Petition R-13-0044.

    Thank you.

    Krista T. McCarthy
    steveleshner
    Posts:

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    28 Feb 2014 03:44 PM
    Stephen I. Leshner (004754)
    Stephen I. Leshner, P.C.
    1440 E. Missouri Ave., Ste. 265
    Phoenix, AZ 85014
    (602) 266-9000 tel.
    (602) 266-9134 fax
    steve@steveleshner.com

    Dear Justices,

    I have read the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of Petition R-13-0044.

    I have been practicing personal injury law in Arizona since 1977, and have been a Certified Specialist since 1991. Although these Rules have been in place since I started practicing, since the mid-1980s, it has been my experience that Superior Court Judges throughout Arizona have held these Rules to be unconstitutional, as they placed an impediment between injured claimants and their rights guaranteed by Article 18, Sec. 6. of the Arizona Constitution. Unfortunately, a recent Court of Appeals decision has held otherwise, and I'm concerned that these Rules, long dormant in their application, will be used to deny or impair a certain class of injured claimants their rights to seek justice through our Courts. It's now time to eliminate the cost bond requirement.

    Bleonard
    Posts:

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    28 Feb 2014 04:18 PM
    Brian T. Leonard
    PALUMBO, WOLFE & PALUMBO
    2800 North Central Avenue, Suite 1400
    Phoenix, AZ 85004
    (602) 265-5777
    (602) 265-7222
    Bleonard@palumbowolfe.com
    State Bar No. 021890

    Dear Justices:

    I support Petition R-13-0044 to change Rule 67(d) and (f).

    The existing Rule represents a capricious obstacle depriving those less fortunate from equal access to justice. It is discriminatory in its application and serves no rational purpose. There is no sound reason to preclude victims of negligence from having their opportunity to obtain justice simply because they are of modest means.

    Justice is blind.

    Please end this senseless and discriminatory practice by adopting the Amendment to the Rules proposed in Petition R-13-0044.

    Thank you for your consideration.

    /s/ Brian T. Leonard
    pmendoza
    Posts:

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    28 Feb 2014 05:25 PM
    Maria del Pilar Mendoza
    Goldberg & Osborne
    33. North Stone
    Tucson, Arizona, 85701
    (520) 6203972
    Pmendoza@goldbergandosborne.com
    024740

    Dear Justices,

    I am writing in support of Petition R-13-0044.

    Cost bonds for plaintiffs unfairly discriminate against the poor. Arizona does not benefit from creating additional obstacles for plaintiffs who do not own property.

    The rule is also one-sided since it only applies to the plaintiffs and not to the defendants.

    Access to the Courts in Arizona should not be limited by a person’s economic means. Poor plaintiffs with valid claims should be free from additional burdens that are not required from others.
    [b] [/b]
    mjazlawyer
    Posts:

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    28 Feb 2014 05:56 PM
    Michelle D. Johnson – State Bar #020199
    The Law Offices of Michelle Johnson, PLC
    2415 E. Camelback Rd., Suite 700
    Phoenix, Arizona 85016
    Phone: (602) 553-1010
    Fax: (602) 926-0272
    MJ@TheMJLawFirm.com

    Dear Justices,

    I write in support of the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice, Petition R-13-0044.

    By way of example of how unfair this rule is, and how it can have a chilling effect on the rights of those injured by others, I share the following example. My newly 18 year old client's neck was broken at an event where the security was inadequate. Before we were able to get the merits of her claim, she was required to testify at a hearing to prove that she was not able to submit a cost bond. She was terrified and felt as though she was in the wrong for filing suit. The process was a waste of court resources and in my estimation, an abuse of the process.

    This rule change is welcome, and accurately reflects that the courts are indeed open to anyone.

    Respectfully submitted,
    Michelle Johnson
    ESQSHAPIRO
    Posts:

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    28 Feb 2014 06:26 PM
    Eric Shapiro
    Shappy Law
    3030 N. Central Ave., Ste. 802
    Phx., Az. 85012
    (602) 274-7400
    esqshapiro@gmail.com
    AZ 018915

    I have reviewed the proposed change to Rules 67(d) and (f) and believe that these changes are necessary to ensure everyone's equal access to the court system. The present state of Rules 67(d) and (f) results in an unfair and unwarranted financial burden upon plaintiffs that are seeking redress through the court system. A party's access to the court should be a fundamental right and should not be based in any way, shape, or form upon a person or entity's financial status. The proposed change to Rules 67(d) and (f) would remove the discriminatory nature of Rule 67.

    /s/ Eric Shapiro
    abneydla
    Posts:

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    28 Feb 2014 11:21 PM
    Comment on Petition R-13-0044 on Amending Rule 67 (Cost Bond Rule)

    Commenter David L. Abney
    State Bar No. 009001
    Knapp & Roberts, P.C.
    8777 North Gainey Center Drive, Suite 165
    Scottsdale, Arizona 85258, (480) 991-7677
    abney@krattorneys.com

    Justices of the Arizona Supreme Court:

    It is time for Arizona to jettison the cost-bond rules. They are a surviving relic of a statute that the Arizona Territorial Legislature enacted in 1901 to make it hard for non-residents and poor people to sue prosperous, propertied Arizona residents. See Rev. Stat. Ariz. Terr. § 1551 (1901). The scheme of the original statute was simple: If you were a foreigner or did not own enough of the right kind of property, you had to post a bond. If you did not, your case was over.

    By the time the cost-bond requirement moved from the statute books into the civil-procedure rules, it dropped the explicit discrimination against foreigners and slightly eased the discrimination against the poor. See Rev. Stat. Ariz., Civil Code §§ 643, 645 (1913); Rev. Code Ariz. §§ 3790, 3791 (1928); Ariz. Code §§ 21-601 and 21-602 (1939). See also Union Interchange, Inc. v. Benton, 100 Ariz. 33, 36, 410 P.2d 477, 479 (1966) (cost-bond rules’ history).

    But unconscionable discrimination remains in Rules 67(d) and 67(e). The cost-bond rules create—and treat differently—three classes. The first class consists of those who can provide “strict proof” of their inability to post a bond. They need post none. The second class consists of those who lack enough of the right sort of property, but who can post a bond. They must post a bond or have their cases dismissed. The third class consists of those who have the right sort of property. They need post nothing.

    In operation, the cost-bond rules attack the middle class. For instance, suppose a defendant in a medical-malpractice case demanded—and the trial court ordered—a $25,000 cost bond. With difficulty, a plaintiff lacking enough of the right sort of property might be able to post $25,000, although it would be hard. But no one should have to pay that much money—or more—just to sue. Court filing fees are already at historic highs. But at least everyone pays the same. The cost-bond rules, however, keep property-poor but non-indigent plaintiffs out of the courthouse while property-rich or indigent plaintiffs walk right in.

    The cost-bond rules are unconstitutional because they violate or infringe on at least five constitutional rights: (1) Ariz. Const. art 18, § 6 (“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”); (2) Ariz. Const. art. 2, § 13 (“No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”); (3) U.S. Const. amend. 14, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”); (4) Ariz. Const. art. 2 § 4 (“No person shall be deprived of life, liberty, or property without due process of law.”); and (5) U.S. Const. amend. 14, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”).

    Rules 67(d) and (e) (1) place a heavier burden on a plaintiff of modest financial means than on an indigent plaintiff; (2) place a heavier burden on a plaintiff of modest means who does not own the “right” kind of property than the burden placed on a plaintiff who is fortunate enough to own the “right” kind of property; (3) force indigent plaintiffs to the cost, trouble, and embarrassment of proving indigence; (4) force other plaintiffs to prove that they have the right kind of property; and (5) force other plaintiffs to undergo the cost and trouble of posting cost bonds that indigent and property-rich plaintiffs need not post.

    Our citizens have the fundamental right of access to the courts. Lewis v. Casey, 518 U.S. 343 (1996). The Arizona Supreme Court has held that our state constitution requires “equal access to justice regardless of the plaintiff’s financial status.” Arnold v. Arizona Dept. of Health Services, 160 Ariz. 593, 607, 775 P.2d 521, 535 (1989). The U.S. Supreme Court has also long required equal treatment: “No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

    Under the Arizona Constitution, the “right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” Ariz. Const. art. 18, § 6. That unique constitutional clause creates a “fundamental right” to pursue a judicial-damages action to seek an award of damages for tortious injury. Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984). The clause also “protects the right of access to the courts.” State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 228 ¶ 32, 172 P.3d 410, 416 ¶ 32 (2007).

    Cost-bond rules that let an indigent or well-off person pursue a tort lawsuit (even if feeble), but burden and restrict the ability of a person of modest means to prosecute a tort lawsuit (even if compelling), unfairly and unconstitutionally burden the right to seek tort damages and the right of access to justice and to the courts.

    The cost-bond rules thus also violate our state constitution’s privileges-and-immunities (equal-protection) clause, which states: “No law shall be enacted granting to any citizen [or] class of citizens . . . privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Ariz. Const. art. 2, § 13.

    The Arizona Supreme Court has relied on that clause to invalidate a law that—like Rule 67(d)—placed a heavier burden on a non-indigent tort plaintiff's right of access to the courts than the burden placed on an indigent tort plaintiff. In the 1977 Eastin v. Broomfield opinion, this Court struck down as unconstitutional a statute requiring non-indigent medical-malpractice plaintiffs who wanted to pursue a claim that a medical-malpractice review panel had rejected to post a $2,000 cash bond or its equivalent with the clerk of court—when the cash bond could be reduced for an indigent. Eastin v. Broomfield, 116 Ariz. 576, 585-86, 570 P.2d 744, 753-54 (1977).

    Much like Rule 67, the statute in Eastin provided: “If such bond is not posted before the plaintiff proceeds further in the action, the action shall be dismissed.” A.R.S. § 12-567(I).

    Eastin held the statute violated the state constitution, explaining that: “As to the indigent, the statute violates the Arizona constitutional privileges and immunities clause, Art. II, § 13, by denying access to the courts. As to the non-indigent, it places a heavier burden upon his access to the court and therefore violates the same clause of the Arizona Constitution. Eastin, 116 Ariz. at 586, 570 P.2d at 754 (emphasis added).

    Likewise, in New v. ABOR, 127 Ariz. 68, 618 P.2d 238 (App. 1980), a law required a $500 cost bond before a plaintiff could file a breach-of-contract or negligence claim against the State was unconstitutional under Arizona’s equal privileges and immunities clause.

    Rules 67(d) and (e) place a heavier burden on a non-indigent tort plaintiff than on a similarly situated indigent tort plaintiff. The cost-bond rules thus violate the Arizona privileges-and-immunities clause and the federal constitution’s equal-protection clause. Indeed, the cost-bond rules only work against plaintiffs and only work for defendants. The rules thus doubly impose unequal treatment, first among plaintiffs, and then between plaintiffs and defendants. “There can be no equal justice when the right to file suit depends on one’s ability to pay.” Psychiatric Association v. Siegel, 610 So.2d 419, 426 (Fla. 1992).

    Finally, the cost-bond scheme is unconstitutional because it violates the right of access to the courts fundamental to due process of law under the state and federal constitutions. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982).

    The longevity of a law does not canonize it, or such evil doctrines such as “separate and equal” would still plague us. This Court has held that when the reason for a rule no longer exists, the rule should be abandoned. Stone v. Arizona Highway Commission, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963). Thus, while we honor the best parts of our heritage, “we are not prisoners of the past.” Wiley v. Industrial Commission, 174 Ariz. 84, 93, 847 P.2d 595, 604 (1993).

    There must be equal access to justice for all, not just for the indigent and the highly prosperous. The cost-bond rules undermine and defeat that principle. They unconstitutionally and unfairly discriminated in 1901 and—although they are now more sophisticated—they still unconstitutionally and unfairly discriminate. They have no place in a judicial system dedicated to equal access to justice for all. This Court should eliminate them from our judicial system once and for all.
    howardlaw49
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    02 Mar 2014 08:27 AM
    Howard Snyder
    Snyder and Wenner, PC
    2200 E. Camelback Rd., Ste 213
    Phoenix, AZ 85016
    howardlaw49@cox.net

    I support the petition to amend Rule of Civil Procedure 67 (R-13-0044).

    Since 1989, when Judge Schneider ruled the "cost bond" provisions of Rule 67 unconstitutional in my firm's Haschak v. McKinley case, nearly every Maricopa County judge who considered the issue has followed suit. The fundamental unfairness and discriminatory nature of the "cost bond" provisions are obvious. The presumed rationale behind the rule always has been suspect. There is no reason for defendants to be assured of collecting their taxable costs, while similarly situated plaintiffs are left to their own devices in collecting their taxable costs.

    Moreover, under the most current interpretation of Rule 67, overburdened trial courts are compelled to litigate issues such as whether the plaintiff has property in Arizona; the value of that property; what amount of taxable costs would the defendant likely incur; and whether the value of plaintiff's Arizona property will cover those costs. This will result in a battle of affidavits and, more likely, evidentiary hearings. Trial courts have enough to do.

    Judge Schneider got it right on both the constitutional and practical deficiencies of Rule 67. Respectfully, the rule should be amended as per the petition.

    Howard Snyder
    ivanhannel
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    02 Mar 2014 11:02 AM
    Gerardo Ivan Hannel
    THE PIGEON LAW FIRM
    2942 North 24th Street
    Suite 114-721
    Phoenix, AZ 85016
    602-710-7573
    ivan@pigeonlaw.com
    State Bar of AZ 029318

    I would like to comment in support of the proposed changes to Rule 67(d) and (f).

    As they currently stand, Rules 67(d) and (f) are, as most posters have already commented, discriminatory as to out-of-state plaintiffs and/or poor plaintiffs, and unnecessary. If you were to tell most Arizonans about the current rules, they'd not believe they were true, especially if they were asked to imagine if California or another state did that to Arizona residents who had a legal issue with a California defendant. At some point, Arizona has to try to stop being an outlier of lunacy and bring our common house in order. Please cast me as another attorney and Arizona resident in support of Petition R-13-0044.

    Respectfully,

    /s/ Ivan Hannel
    kcarman
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    03 Mar 2014 11:01 AM
    Krista Carman
    246 S. Cortez St.
    Prescott, AZ 86303
    928-445-8056
    kcarman@lawwmc.com
    Bar NO. 021700

    Dear Justices,

    I support this Rule Change Petition. The current rule is discriminatory against plaintiffs that do not have economic means. Large corporations, insurance companies and wealthy defendants have taken advantage of plaintiffs with legitimate legal arguments who cannot pursue them based on their economic circumstances. There is no reason to apply this rule only to plaintiffs. The rule should be amended as proposed. Thank you for your consideration.

    /s/Krista Carman
    ecrowley
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    03 Mar 2014 11:50 AM
    Theodore A. Julian, Jr.
    702 E. Osborn Rd., Suite 200
    Phoenix, AZ 85014
    Phone: 602-234-8780
    Fax: 602-850-9780
    email: tjulian@bcattorneys.com
    SBA# 012765


    To the Arizona Supreme Court:

    I am writing in support of Petition R-13-0044 and the proposed change to Ariz. R. Civ. P. 67 requiring some litigants to post a bond for security for costs.

    The rule deprives litigants of equal access to the courts based on whether they own property in the state subject to execution. Property ownership should never be a prerequisite to obtaining justice or the right to file a lawsuit. This rule discriminates against the poor and others who may be visitors or new residents of Arizona who must post a bond simply because they do not own property in this state. This is especially repugnant in the case of personal injury victims who are forced to overcome these obstacles by out of state insurance companies.

    I urge you to grant the petition to allow equal access to justice for all litigants.

    khammond
    Posts:

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    03 Mar 2014 01:13 PM
    Kent Hammond
    Rudolph & Hammond, LLC
    8686 E. San Alberto Suite 200
    Scottsdale, AZ
    (T) 480-951-9700
    (F) 480-951-1185
    kent@rudolphhammond.com
    Bar No. 015100

    Dear Justices:

    I support the petition to Amend Rule 67, Ariz.R.Civ.Pro. Currently, parts (d) and (f) of Rule 67 require the plaintiff, not the defendant, to give security for the costs of the action if they do not own property in Arizona. This is fundamentally unfair and primarily impacts the poor. The courts need to be open to everyone not only affluent litigants. While at one point in time the Rule may have been necessary, at this time it is used primarily as a tool of harassment and intimidation. The court should eliminate this very unfair and one-sided rule.

    Kent Hammond
    kyleisrael
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    03 Mar 2014 01:38 PM
    Kyle Israel
    Israel & Gerity, PLLC
    3300 N Central Avenue, Suite 2000
    602-274-4401 FAX
    kisrael@ig-law.com
    Bar Number 015822


    Dear Justices,

    I write to you today regarding the proposed change Rules 67(d) and (f) submitted by the Arizona Association for Justice. I support Petition R-13-0044.

    Rules 67(d) and (f) operate to limit access to our courts to those who have a sufficient amount of wealth. This is in contrast to the basic notion that access to our courts is a fundamental right. We should not discriminate by undermining those rights.

    Unfortunately, these rules are being used more and more by defendants to reduce claims for reasons other than the merits, and other than the pursuit of justice.

    Moreover, these rules only further the national stereotype about our great state that it seeks to punish those who have a different heritage, lifestyle choice, or financial position. Striking these rules would be s step in the right direction for a state that truly believes in equality of our citizens.

    Thank you for your attention.

    cmuchmore
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    03 Mar 2014 04:13 PM
    Charles J. Muchmore
    Burch & Caracchiolo PA
    P.O. Box 16882
    Phoenix, AZ 85011-6882
    cmuchmore@bcattorneys.com

    This rule is an anomaly. It should not be. It discourages — and can even defeat — legitimate claims filed by people who are not fortunate enough to own property in the state. Rule 67 does not apply to defendants. It creates an unnecessary burden on the court, as well. I will not repeat the matters set forth in the petition, other than to state that besides being vague and discriminatory, it is a true waste judicial time. Judges have a difficult enough job finding time on their busy calendars. They don’t need to review affidavits and estimate costs that might be incurred. While Arizona has long tried to follow the Federal Rules of Civil Procedure, there is no counterpart to A.R.Civ.P. 67 in the Federal Rules.
    Czachar
    Posts:

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    04 Mar 2014 08:07 AM
    Christopher J. Zachar
    Zachar Law Firm, P.C.
    3301 East Thunderbird Road
    Phoenix, AZ 85032
    (60) 494-4800 phone
    (602) 494-3320 fax
    Czachar@zacharlaw.com
    Bar No. 014711


    With great interest, I have read the proposed change to Rule 67. Without an ounce of uncertainty, I wholeheartedly support the abolishment of Rule 67 from the ARCP. For years in representing injured victims, I have seen opposing counsel seek to use Rule 67 as a blockade to the courthouse door. The great majority of my clients do not have the means to post a bond in order to access our justice system, yet that is exactly what Rule 67 requires. The purpose of the Rule is that there be a deposit of money for costs, "just in case" the Defendant wins. Rule 67 requires no evaluation of the merits of the case. There need be no discussion at all regarding the likely outcome. The formula is simple: Plaintiff filed a lawsuit, Plaintiff does not own real property---Plaintiff must pay a fee to continue the case. Remarkably, the party who has been wronged and the party who (likely) has the least ability to pay is forced by Rule 67 to post a bond on the simple premise that he/she does not "own" a home. Does this sound fair to anyone? Never has, never will.

    dzanes
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    04 Mar 2014 12:11 PM
    Douglas Zanes
    Doug Zanes & Associates, PLLC
    3501 East Speedway Blvd., Set. 101
    Tucson, AZ 85716
    520-881-9311 (phone)
    520-382-5403 (FAX)
    dzanes@zaneslaw.com
    Bar No. 018195

    The proposed changes to Rule 67(d) & (f) is not only a good solution to a current problem, it is a needed change because the current rule creates a significant burden on indigent plaintiffs that needs to be remedied. Therefore, I support the proposed change.

    I have seen the current rule used by the defense in personal injury claims to make our Court system inaccessible to clients not only indigent clients, but also middle income clients. When a Plaintiff pursuing a personal injury claim is ordered under the current rule to post a $10,000 or greater cost bond, their case typically is dismissed because of their inability to post this bond. This is always horribly unfair, but it is truly unjust when all parties agree that the defendant is liable but are simply fighting over how much money should be paid. The rule as it currently stands can easily be abused and needs to be changed.
    djadelman
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    05 Mar 2014 07:36 AM
    Daniel Adelman
    Adelman German, PLC
    8245 N. 85th Way
    Scottsdale, AZ 85258
    480-607-9166
    480-607-9031
    Danny@AdelmanGerman.com
    011368

    I am writing in support of the petition to eliminate the cost bond requirements for a certain class of plaintiffs - those who own no property in the state. The rules are discriminatory and unfair. They impose a barrier to the Courts that feed the notion that justice is reserved for the rich and powerful. The rules apply only to plaintiffs. Thus, if a driver who is texting while driving plows into a car and injures a person, and that person sues, Rule 67 would allow the texter(or his insurance company) to victimize the injured person again. Discovery into a plaintiff's financial status would be allowed. This is an intimidation tactic. For many plaintiffs the Rule is a functional bar to judicial access. The Rule is fundamentally unfair.

    Rule 67's requirements are also one sided. In many cases (like rear end accident cases with undisputed injuries) it is a near certainty that plaintiff will prevail. The only question is the amount the plaintiff will receive. In such a case it is also a near certainty that the plaintiff will be awarded his or her costs. Yet Rule 67 does not provide any requirement for a cost bond from defendant. In this circumstance, a plaintiff could not conduct discovery of a defendant's finances (under Larriva), but the defendant could propound intimidating discovery to a plaintiff. The cost bond requirements of the Rule should be eliminated.

    I firmly support the Petition.

    Sincerely,

    Danny Adelman
    ecrowley
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    05 Mar 2014 10:47 AM
    Marco Mercaldo
    Mercaldo Law Firm
    1853 N. Kolb Road
    Tucson, AZ 85715
    520-624-1400
    520-624-1955
    Marco@Mercaldo.com
    020241

    I support the elimination of cost bonds under Rule 67(d) and (f) as they arbitrarily discriminate against non property owning Plaintiffs. Justice should be readily available to all and unnecessary barriers to the court should be removed.

    Marco Mercaldo
    Mercaldo Law Firm
    ecrowley
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    05 Mar 2014 10:49 AM
    Rodolfo A Resendez Jr
    Resendez Injury Law Group PLLC
    2256 N 15th Ave, Phoenix AZ 85007
    602-824-9444
    602-428-6868
    Rudy@RResendez.com
    016717

    Dear Justices,

    Having read the proposed change to Rules 67(d) and (f) as submitted by the Arizona Association for Justice, I write in support of Petition R-13-0044.

    A sizable percentage of my firm's clientele is comprised of honest, hard-working individuals who for a variety of reasons simply do not have the fortune or means to presently own property in our state. Nonetheless, these good people choose to live, work, play, and spend their income in Arizona and add to the diversity and richness of our state in doing so. It is our belief that Rules 67(d) and (f) imposes arbitrary financial requirements on this group of people when they become plaintiffs in civil cases because of the alleged negligence or other acts of third parties. We believe Rules 67(d) and (f) very clearly discriminates against "non-property owning” parties at the expense of public confidence in an impartial judicial system.

    Although most experienced lawyers and judges have recognized over the past two or three decades that the rules requiring cost bonds are unfair, the use of this unfair and discriminatory mechanism has become more frequent following the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    We implore the Court to eliminate these one-sided, unnecessary and discriminatory rules. Thank you in advance for your consideration of this comment.

    /s/Rodolfo A Resendez Jr, Esq
    tshah
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    05 Mar 2014 12:54 PM
    Tanveer A. Shah, Esq.
    Law Offices of Tanveer A. Shah
    1204 E. Baseline Road
    Suite 102
    Tempe, AZ 85283
    (866) 308-3982

    Dear Justices,

    I write to you today in support of Petition R-13-0044 which proposes changes to Rules 67(d) and (f).

    Rule 67(d) secures payment of merely potential and contingent costs in favor of a particular type of litigant (defendants), who may or may not reside in Arizona, against another type of litigant (plaintiffs), who may or may not reside in Arizona. Rule 67(d) is unjustifiably one-sided.

    The cost bond rules should be eliminated because they are facially discriminatory, unjust and arbitrary. Rule 67(d) protects only defendants for their costs, while certain plaintiffs get no equal protection and are, instead, financially exposed and easily subject to harassment. This unfairness should be eliminated.

    The mechanisms set forth in Rule 67(e) requires the court to excuse those who, lacking in-state property, demonstrate that they cannot afford to post security for costs. However, for those who cannot provide "strict proof" of "inability" no matter that hardship, must provide the ordered security or have their case dismissed.

    The rules clearly impede if not practically block court access for modest-means plaintiffs, and unfairly burden those plaintiffs while favoring defendants.

    These types of one-sided, discriminatory rules should have no place in our system. I urge this Court to eliminate this unfairness.

    Regards,
    Tanveer A. Shah, Esq.
    DBL
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    05 Mar 2014 01:02 PM
    Douglas B. Levy
    Douglas B. Levy, P.C.
    283 South Scott Avenue
    Tucson, AZ 85701
    520-545-7200
    520-545-7201
    douglevy@douglevylaw.com
    016623

    I support the petition to amend Rule of Civil Procedure 67 (R-13-0044). I have carefully read the petition prepared by Mr. Trachtenberg and it is simply a perfect explanation of why ARCP 67 must be amended.

    Since 1989, when Judge Schneider ruled the "cost bond" provisions of Rule 67 unconstitutional in the case of Haschak v. McKinley case, nearly every Maricopa County and Pima County judge who considered the issue has followed suit. The fundamental unfairness and discriminatory nature of the "cost bond" provisions are obvious. The presumed rationale behind the rule always has been suspect. There is no reason for defendants to be assured of collecting their taxable costs, while similarly situated plaintiffs are left to their own devices in collecting their taxable costs.

    Moreover, under the most current interpretation of Rule 67, overburdened trial courts are compelled to litigate issues such as whether the plaintiff has property in Arizona; the value of that property; what amount of taxable costs would the defendant likely incur; and whether the value of plaintiff's Arizona property will cover those costs. This will result in a battle of affidavits and, more likely, evidentiary hearings. Trial courts have enough to do.

    I have also read the majority of the comments in support of the petition and I agree with all of them. We are lawyers representing individual claimants, so that we can appreciate first hand how this Rule has been abused by certain insurance carriers and their defense counsel.

    Judge Schneider got it right on both the constitutional and practical deficiencies of Rule 67. Respectfully, the rule should be amended as per the petition.

    Very truly yours,

    Douglas B. Levy


    MichaelLarkin
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    05 Mar 2014 01:24 PM
    Michael Edmund Larkin
    405 W. Franklin
    Tucson, AZ 85701-8209
    mikelarkin@sinasdramis.com


    I am writing in support of Petition R-13-0044. A core policy of the Arizona Judiciary is making the courts accessible to citizens of Arizona. The proposed changes in Petition R-13-0044 will promote this important policy. Sections d and f of Rule 67, as currently written, are an unnecessary and unfair bar to the courts of Arizona for many Arizonans. The existing rule sections discriminate on the basis of ownership of real property. This is an archaic remnant of era of dual citizenship that has been outlawed. Furthermore, it serves no useful purpose that is not already available to defendants.
    Please accept the proposed changes.
    MICHAEL E. LARKIN


    danziskin
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    05 Mar 2014 07:58 PM
    Daniel I. Ziskin
    Daniel I. Ziskin P.C.
    P.O. Box 7447
    Phoenix Arizona 85011
    602.234.2280
    fax 602.274.9297
    dan@adoptz.com
    SBN 004278

    Dear Justices,

    I am writing in support of Petition R-13-0044.

    Rules 67(d) and (f)imposes arbitrary financial requirements on certain plaintiffs, needlessly discriminating against "non-property owning² parties at the expense of public confidence in an impartial judicial system.

    The use of this mechanism has become more prominent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    The Court should eliminate these one-sided, discriminatory rules.

    alangerman
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    05 Mar 2014 10:20 PM
    Amy Langerman
    951 Coronado Avenue
    Coronado, CA 92118
    619-437-4579
    619-437-4580 (Fax)
    alangermanlaw@aol.com
    Of Counsel to the Law Offices of Raymond J. Slomski


    Dear Justices:

    I have read the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice and am writing in support of the Petition. I am a past president of the Association for Justice (Formerly, Arizona Trial Lawyers Association) and have also served has a judge pro-tem on the Maricopa County Superior Court for more than 10 years. While I am not currently residing in Arizona, I continue to practice law in Arizona and have specific experience with the security for costs provision at issue in this proposed rule change. In addition, I served as chair of the amicus curiae committee of AzTLA for 20 years, filing more than 50 briefs, many of which raised constitutional impediments to various statutes/court rules and am familiar with the constitutional arguments raised by the petitioners.

    I adopt and agree with all of the arguments raised in the petition. They are well reasoned, well argued, and supported by logic, law and reason. I write specifically to express my concern that the cost bond provisions if allowed to stand, blocks access to the courts for modest means plaintiffs – those that are not so poor as to qualify for whatever “hardship” must be established by “strict proof” (whatever that is) but not wealthy enough where posting security would not be an issue, assuming they had at least enough means to show up for whatever hearing is contemplated. During the course of my 30+ year career, I represented many, many tourists, those coming to Arizona, visiting, spending money, and then returning to their home states (often returning to the valley of the sun to escape cold weather in the east). Many of these tourists were retirees. Some of those visitors were unfortunate enough to be involved in collisions with Arizona drivers. The impact of the Thiele decision on these unsuspecting and injured tourists cannot be ignored. The Arizona Department of Tourism notes that in the year 2012, Arizona had 33.1 million visitors, staying an average of 3.8 nights. These tourists spend money and support Arizona businesses. Are we really expecting that after they come to our state, spend money to support our businesses, and then are injured on our streets, they now have to have to post security for costs to protect the tort feasor who injured them (who likely is insured because the motion is contained in the insurance industry motion bank to be churned in every case) simply because they are tourists?

    None of my clients have ever had to post a bond, because up until now, the consensus among the trial court judges was that the rule was unconstitutional. After trial lawyers successfully won motion after motion, the defense bar stopped filing them (in my cases) until now – in a case with an unrepresented plaintiff. Now that this has occurred, the cottage industry of insurance defense attorneys will file one of these motions in every case of every tourist injured within our borders, even those who were injured by defendants who were cited for causing the crash, who were drunk, or are now in jail because their conduct also violated criminal statutes. They are protected from having to post security for the costs that would likely have to pay defending a meritorious case but their attorneys can intimidate, harass and annoy innocent and injured victims because a pro-per plaintiff did not know how to raise the necessary constitutional arguments.

    For all the reasons set out in the petition, the relief requested should be granted. This rule is one sided, unreasonable and unconstitutional.

    Amy Langermay



    jnegretti
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    06 Mar 2014 07:08 AM
    Jonathan Negretti
    HOLMES NEGRETTI PLLC
    450 N. McClintock Drive, Ste. 205 Chandler, AZ 85226
    602-465-8733
    602-532-7223
    jonathan@holmesnegretti.com
    030222

    I have recently been made aware of the proposed change(s) to Rules 67(d) and (f) submitted by the Arizona Association for Justice and I am writing in support of Petition R-13-0044. Rules 67(d) and (f), unfairly and unilaterally imposes financial constraints solely on plaintiffs. It is both discriminatory and judiciously improper.

    The cost bond rules are fundamentally unfair. Presently, the use of this mechanism has become more prominent and it is time for the Court to take action and put an end to this practice.

    The Court should eliminate these out dated and archaic rules.

    /s/ Jonathan Negretti
    JFUCCETO1
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    06 Mar 2014 09:40 AM
    James E. Fucetola
    The Slavicek Law Firm
    5500 North 24th Street
    Phoenix, Arizona 85016
    P - (602) 285-4424
    F - (602) 287-9184
    james@slaviceklaw.com
    AZ Bar # 029332

    Dear Justices:

    I have reviewed the proposed changes to Rules 67(d)and (f) submitted by the Arizona Association of Justice and am commenting in support of Petition R-13-0044.

    Until recently, I spent the majority of my legal career as a House Counsel Attorney for a major insurance company. Before relocating my practice to Arizona, I was the Managing Attorney for one of the insurance company's house counsel offices in Washington State. Most recently, I was the Managing Attorney for the insurance company's house counsel office in Phoenix.

    I was surprised to learn of Arizona's Rule 67(d) when I began practicing in Arizona. I was even more surprised to see the discriminatory manner in which the rule was used.

    Unfortunately, this rule is used by insurance companies to deter litigants who do not own property from having their day in court. It is used to intimidate those lacking in financial means so as to cause them to be fearful of prosecuting their claims. While I am proud to say I never pursued a cost bond pursuant to Rule 67(d), I can tell you from first-hand knowledge that insurance companies view the current rule as a tool to strong-arm litigants into dropping their claim or settling it for less than fair value.

    The citizens of our state deserve to have equal access to our courts, free of discrimination, irrespective of their financial means. Therefore, I ask you to eliminate these rules.

    Thank you for your time.

    ecrowley
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    06 Mar 2014 11:43 AM
    J. Ridge Hicks
    The Law Office of J. Ridge Hicks, PLC
    3635 E. Inverness Ave., Suite 103
    Mesa, AZ 85206
    480-659-2198 phone
    480-626-6839 fax
    email: ridge@mesaaccidentlaw.com
    Bar#: 017272

    Dear Justices:

    I write in support of R-13-0044 proposing changes to Rule 67(d) and (f). I represent personal injury plaintiffs in my practice. I agree with earlier comments about the unfairness of applying a requirement to plaintiffs and not to defendants and in placing a burden only on non-property owners (primarily lower-income folks). I also recognize the judicial inefficiency of the rule in its current form.

    Opponents to R-13-0044 must believe there is something fair in placing this financial burden only on plaintiffs, since they are the ones causing the defendants to incur the costs. This begs the question, though. Is it really the plaintiff causing the defendant to incur costs? Is it not probable in many cases that the defendant (often a large corporate defendant) is causing the plaintiff (usually an individual) to file suit by taking an extreme position before suit? In my 17 years of practice this has been the case in a large majority of suits that I have filed. Rule 67(d) ignores the reality that it takes two (or more) to tango. For every plaintiff filing a suit, there is a defendant who refuses to meet the plaintiff's demand.

    Who is right? Every case is different, but a vast majority of plaintiffs have at least some colorable claim, and those who do not are subject to dismissal or summary judgment. The only time a cost bond would be paid out to a defendant would be if they prevail on all claims. The current Rule 67(d) makes no provision for weighing the merits of the claims before requiring the cost bond, since this would be totally impractical. Yet that would be the only way it could be fairly applied. In stead it just places all of the burden on one side - but always the same side and only when that side has no property.

    If a rule cannot be implemented in any way so as to make it fair, efficient and practical, it is better to eliminate the rule (or the offending portion) than to keep a version that is both highly unfair and highly inefficient.

    /s/ J. Ridge Hicks
    Dclausen
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    06 Mar 2014 12:51 PM
    Darren M. Clausen, Esq.
    Clausen & Moore Law Firm
    4578 E. Fort Lowell Drive
    Tucson, AZ 85712
    (520) 327-7113
    (520) 327-3414
    dclausen@clausenandmoorelaw.com
    Arizona State Bar No.: 019427

    See attached correspondence.
    Attachments
    ericpost
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    06 Mar 2014 01:19 PM
    Eric Post
    3256 East Speedway Boulevard
    Tucson, AZ 85716
    520-207-9601 (ofc)
    520-207-8244 (FAX)
    eric@ericpostlaw.com
    Bar No. 020267

    Arizona has always taken pride in opening access to its courts to all, regardless of whether they can afford and attorney or not. Many pro per claimants and defendants appear in this Great State with the limited financial hardships that are common. When a person is injured, they have medical bills, lost wages, unable to work, expenses to hire others to help. Many don't own property and if they do, they are upside down on the mortgage.

    Requiring a cost bond is just beyond the capability of many people. It is like poker, if you have a losing hand (which often is the case when an insurance carrier is defending a claim), then one way to "win" is to raise the stakes so high that others fold.

    I join the attorneys above. Justice cannot be solely for the wealthy.
    bmsquire
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    06 Mar 2014 01:37 PM
    Bruce M. Squire (SBN 006978)
    Bruce Squire Law LLC
    4500 S. Lakeshore Dr., Suite 345
    Tempe, AZ 85282
    P: 480-247-3890
    F: 888-412-6896
    bruce@brucesquirelaw.com

    I am offering my support for the proposed changes to Rules 67(d) and (f), Rules of Civil Procedure, submitted by the Arizona Association for Justice and I am writing in support of Petition R-13-0044.

    Many others have already commented about the one-sided and discriminatory nature of the current rule. I concur with those comments. I’d like to offer my experience of the practical impact of Rule 67 (d) and (e). For most of my 32 years as a practicing lawyer in Arizona I have represented individuals who could not afford to pay a retainer or an hourly fee to hire a lawyer. The reality is that many middle class individuals cannot afford to pay attorney’s fees and costs necessary to have their civil disputes resolved in the courts. The vast majority of my clients have hired me on a contingent-fee basis. Most of my clients were harmed by careless, and sometimes criminal, acts of others. When faced with a defense motion to post a cost bond, clients feel like they are a victim again. When asked if we can require the defense to also post a cost bond, the answer of course is ‘No’. The timing of such motions sometimes appears to be nothing more than an attempt to delay the ultimate resolution of the case and require the plaintiff to jump through another procedural hoop. I can’t think of a single case in 32 years where my client actually had to post a cost bond in response to a defense motion under Rule 67(d). Plaintiffs typically either have some property within the state or are able to prove their inability to post a bond. The proposed rule change will not result in an increase in frivolous lawsuits by impecunious plaintiffs. Existing rules and statutes already effectively deal with that issue.

    The proposed rule changes make sense and I urge their adoption.

    ddiamond40@aol.com
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    06 Mar 2014 04:32 PM
    Davide J. Diamond
    Goldberg & Osborne
    33 N. Stone Avenue, Suite 900
    Tucson, Arizona
    520-909-0909
    520-620-3991
    ddiamond40@aol.com
    010842


    Dear Justices,

    I have read the proposed changes to Rules 67(d) and (f) and I am writing in support of Petition R-13-0044.

    I have represented many low income clients with valid claim but with no property in the State of Arizona. The requirements in Rule 67 (d) and (f) that these plaintiffs post a cost bond in civil cases is unfair to these plaintiffs with valid claims, and serves to negatively impact these low income clients far more than clients with the financial means to post bonds. As a result, Rule 67 denies lower income clients access to the court system. As such, I support the approval of this petition.

    The Court should eliminate these one-sided, discriminatory rules.

    David J. Diamond
    michaelcordova
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    06 Mar 2014 04:40 PM
    Michael Fairbairn Córdova (Bar #14164)
    MICHAEL CORDOVA, P.C.
    1700 North 7th Street
    Phoenix, Arizona 85006
    (602) 265-6700
    michael@mcordova.com
    Attachments
    EddieHoran
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    06 Mar 2014 05:45 PM
    Adel “Eddie” Horan, Esq. (Bar# 023687)
    Horan Law Offices, P.C.
    One East Camelback Road, Suite 650
    Phoenix, Arizona 85012
    Tel: 602-266-4444
    Fax: 602-266-4450
    eddiehoran@horanlawoffices.com

    Dear Justices,

    Having read the proposed change to Rules 67(d) and (f) submitted by the Arizona Association for Justice, I am writing in support of Petition R-13-0044.

    Rules 67(d) and (f) imposes arbitrary financial requirements on plaintiffs who are less fortunate and needlessly creates discrimination against poor and non-property owning parties. Having represented many clients who live paycheck to paycheck, these rules have the effect of requiring these clients to disclose otherwise private and confidential financial information unrelated to the pending legal matter and prove they are poor (usually an embarrassing topic for the clients) in order for them to have access to the courts and proceed with legitimate and valid claims.

    The cost bond rules are unconstitutional and fundamentally unfair and should be eliminated.

    /s/ Adel Horan
    mattmillea
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    06 Mar 2014 05:59 PM
    Matthew P. Millea
    Matthew P. Millea, PLC
    7272 East Indian School Road, Suite 203
    Scottsdale, AZ 85251
    (480) 481-0616
    Fax (480) 481-9021
    matt@millealawfirm.com
    State Bar No. 011620

    Dear Justices:

    I am strongly in favor of the proposed chances to the Rules 67 (d) and (f) submitted by the Arizona Association for Justice. I am in support of Petition R-13-0044.

    These rules are fundamentally unfair to the vast numbers of people who do not own real property, but through no fault of their own have no other means of redress but the courts. Our State has a proud tradition of maintaining a court system which is open to all, not just those who are property owners. This rule has generally been ignored by experienced lawyers because it is patently unfair, and not useful as a practical matter. But the recent decision in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.2d 206 (App. 2013) has revived interest in, and concern about, this rule.

    I represent many clients who have little or no financial resources. When they are tragically injured by the negligence of others, and confronted with a claim system that is efficiently designed to require a lawsuit to be filed before fair compensation will even be considered, they often fear they are unlikely to be treated fairly in the courts. Many of my clients, rightly or wrongly, believe the "system" is rigged against them. They know that the rich and large corporations enjoy an advantage over them because they see evidence of that every day. It is particularly difficult to persuade them that the courts are indifferent to which party has the most money when defendants are allowed to ask about what property the plaintiff owns, and to demand that the plaintiff post a bond in the (highly unlikely) event the plaintiff might lose at trial. This rule is a barrier to entry to the courts, which are ultimately the bulwark of our freedom. It must be changed.

    Sincerely,


    Matthew P. Millea
    mogborne
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    06 Mar 2014 08:13 PM
    Michelle N. Ogborne
    Ogborne Law, PLC
    5110 North 44th Street, Suite L200
    Phoenix, AZ 85018, USA
    602-343-1435
    602-354-9597
    michelle@ogbornelaw.com
    AZ 026641

    Dear Justices,

    I have reviewed the proposed changes to Rules 67(d) and (f) which would eliminate the requirement that certain plaintiffs post a cost bond in civil cases and I support it.

    Rules 67(d) and (f), imposes arbitrary financial requirements on certain plaintiffs and needlessly creates an atmosphere of discrimination toward "non-property owning” parties and undermines public confidence in an impartial judicial system. These rules are fundamentally unfair and allow defendants alone to demand cost bonds from plaintiffs who do not own property. These rules have a profound impact on the clients I serve. Most of the individuals I work with do not own property and defendants have used these rules to effectively bar these plaintiffs from accessing the courts to seek justice for the wrongs committed against them. The procedure for requesting and opposing the request for a bond unnecessarily adds time and costs to cases, and has become more prevalent since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013).

    The Court should eliminate these one-sided, discriminatory rules, and give everyone equal access to the courts.

    /s/ Michelle N. Ogborne
    tomaburnett
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    06 Mar 2014 08:29 PM
    Thomas Burnett
    1744 South Val Vista Drive, Suite 208
    Mesa, AZ 85204
    P. 480-347-9116
    F. 480-347-9142
    tom.burnett@burnettlawaz.com
    026509

    I support petition R-13-0044. Many of my clients are indigent, or of lesser means. Certainly they should have no less a right to seek redress through the courts because of their financial condition; yet, the current system has the effect of doing just that. Justice must not be contingent upon ones financial condition. I support elimination of these one-sided cost bonds.
    TElkie
    Posts:

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    07 Mar 2014 10:39 AM
    Tait D. Elkie
    Bar Number: 021469
    Elkie Law Office, PC
    13034 North Verde River Drive, Suite 104
    Fountain Hills, AZ 85268
    Telephone: 480-626-7070
    Fax: 480-626-2244
    Email: Tait@Elkielaw.com

    Dear Justices,

    I am writing in support of R-13-0044 and the proposed changes to Rule 67(d) and (f), Ariz.R.Civ.P. I have read the excellent points and arguments posted by my fellow attorneys, and echo their rationale and sentiment. It is time to eliminate the bond requirement and this tool that is used unfairly against indigent and out of state Plaintiffs.

    Regards,

    /s/ Tait D. Elkie
    mlanda
    Posts:

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    07 Mar 2014 12:22 PM
    William J. Wolf
    William J. Wolf, P.C.
    1121 East Missouri
    Bldg 4, Suite 117
    Phoenix, AZ 85014-2723
    wolflaw18@aol.com
    (602) 279-1914

    Filed 3/3/2014
    Attachments
    mlanda
    Posts:

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    07 Mar 2014 12:23 PM
    Nicholas E. Vakula, Bar # 009876
    R. Randall Johnson, Bar # 014814
    Thomas Germuska, Jr., Bar # 016508
    The Vakula Law Firm, P.C.
    11240 N. Tatum Blvd, Suite 120
    (480) 905-9113
    vakulalawfirm@aol.com


    Filed 3/5/2014
    Attachments
    datpc
    Posts:

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    07 Mar 2014 05:35 PM
    David A. Thomson (AZ Bar #007098)
    Law Offices of David A. Thomson, P.C.
    255 E. Osborn Road, #102
    Phoenix AZ 85012
    602-230-1999
    fax 602-230-2224
    dave@davidthomsonlaw.com

    I strongly support this petition. In the early 80's I occasionally had a poor client who was faced with a motion for a cost bond and we wasted considerable attorney and judicial time dealing with this terribly unfair and discriminatory antique rule; I do not think any positive purpose was served. It was clear to most attorneys and judges I have encountered over the years that it was unfair and unnecessary, since only a plaintiff, who already has the burden of proof and has been injured badly enough to want to seek recompense in court, has to post a bond under this rule and the defendant who is claimed to be responsible for causing the injury is free of this burden. It has only been used for intimidation of the poor and insecure. This provision seems to violate the language and spirit of multiple sections of the Arizona Constitution (very well spelled out by David Abney in his comment), and this has been the ruling by every judge I have been aware of since 1989, such that nobody bothered with the security for costs demand for years, until the recent case of the pro per plaintiff somehow brought it back to life. The security for costs rule is un-American. It has got to go.

    lkoschney
    Posts:

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    12 Mar 2014 12:37 PM
    Daniel P. J. Miller
    Tucker & Miller, L.L.L.P.
    1440 E. Missouri Avenue
    Suite C-150
    Phoenix, AZ 85014
    PH: (602) 870-5511
    Fax: (602) 870-5255
    E-Mail: DMiller@tucker-miller.com
    Attachments
    ilyalaw
    Posts:

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    13 Mar 2014 02:19 PM
    Ilya Elena Lerma, Esq.
    TIDMORE LAW OFFICES, LLP
    301 E. Bethany Home Road, Suite B140
    Phoenix, AZ 85012
    602.264.1973 (phone)
    602.230.7377 (fax)
    ilyalaw@hotmail.com
    019573


    Honorable Justices,
    I am a civil litigation attorney licensed to practice in Arizona for nearly 14 years. I have, from time to time, dealt with the issue of cost bonds under A.R.C.P. 67. Fortunately, in each instance the lower courts refused to require bond to be posted as it would have deprived each of my clients access to the courts and determined the motion to be unconstitutional. This was done after significant motion practice and preparation of affidavits and significant time and effort expended by both sides and the assigned judge. In my experience, the attempts to secure a bond have never been used for any legitimate purpose. In fact, in each case it appeared that the the effort was nothing more than an insurance company's and (defense lawyer's) egregious attempt to harass and intimidate plaintiffs. The rule, in its misapplication, has prejudicial and deleterious effects upon clients very often existing in an already precarious financial circumstances. Not infrequently, clients are on disability or unemployed following an injury and requiring the bond posting can add to mounting financial struggles and anxieties as they await resolution via litigation. Moreover, the fact that no such requirement is made of defendants is evidence of the profound inequity. The deprivation of a victim's access to the courts is plainly inconsistent with the Constitution. The proposed rule change carries my strongest endorsement. Thank you.
    Respectfully,

    Ilya E. Lerma, Esq.
    lkoschney
    Posts:

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    20 Mar 2014 05:51 PM
    Jonathan V. O'Steen
    Bar No. 024043
    O'Steen & Harrison, PLC
    Attorneys at Law
    Suite 400
    300 W. Clarendon Avenue
    Phoenix, AZ 85013-3424
    Ph: 602-252-8888
    Fax: 602-274-1209
    E-Mail: josteen@vanosteen.com

    Attachments
    Jim Penny
    Posts:

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    25 Mar 2014 12:02 PM
    James B. Penny
    Law Office of James B. Penny, LLC
    333 N. Wilmot Road, Suite 340
    520.618.5368
    jim@injurylawyersaz.com
    SBA No.: 015236

    Dear Justices:

    Thank you for taking the time to read all the comments to the proposed change to Rule 67(d) and (f). Like others before me, I am writing in support of Petition R-13-0044.

    The reason for my support is simple. The current rule clearly and unmistakably works a hardship on the poor who have been wronged and deprives them of equal access to justice. The filing fee and cost of service of process is enough of a financial hardship for a plaintiff of limited means. It strikes me as unjust to require that plaintiffs also post a cost-bond. This injustice is made more apparent by the disparity of treatment inherent in the rule. The rule currently requires only the victim of wrong-doing to post a cost bond but the perpetrator of that wrong does not have any similar obligation.

    Please adopt the proposed change to Rule 67(d) and (f).

    Sincerely,

    James B. Penny
    B_Torgersen
    Posts:

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    26 Mar 2014 06:48 PM
    Bethany Torgersen
    STEWART & TORGERSEN, PA
    2999 North 44th Street, Suite 318
    Phoenix, AZ 85018
    (602) 297-9300
    (602) 265-6414
    Bethany@1800ourlawyer.com
    024634

    Dear Justices of the Supreme Court,

    I am writing to support the Petition to eliminate Rule 67(d) and (f)'s discriminatory provisions for court ordered cost bonds solely against people who seek to exercise their Constitutional right to access the courts. Petition R-13-0044 proposes changes to the Rules in order to correct that injustice and remedy the public perception of a judicial system that is biased. The simple fact that there is no similar procedure to place a financial burden on the tortfeasor, whose negligent actions damaged the plaintiff and resulted in the cause of action in the first place, proves its discriminatory nature.

    As a lawyer who represents the victims of other people's negligent acts, I have seen first hand how the current rule operates to deny access to the courts. Even the threat of a bond has a chilling effect on whether a person is willing to pursue a legitimate claim in a court. The current rule institutionalizes the disenfranchisement of those people in our State who need the protection of the courts most.

    It is discriminatory on its face and should be eliminated.
    Thank you
    jenfite
    Posts:

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    27 Mar 2014 11:20 AM
    Jennifer Fite
    10210 N 32nd Street, Ste 213
    Phoenix, AZ 85028
    (602) 368-1869 (phone)
    (602) 997-3948 (fax)
    jennifer.fite@fitelaw.com
    Bar No. 021441

    I have practiced civil litigation in the State of Arizona for over 12 years and am a current member of the Arizona Association for Justice. I have read the proposed change to Rules 67(d) and (f) and am writing in support of Petition R-13-0044. This petition makes sense for a wide variety of reasons discussed within the petition itself and in the comments above, but it seems that the current language of the rule is most incongruous with the purpose of our justice system – to give everyone a chance to have their case heard.

    Over the years, I have seen the current rule used as a tool to intimidate plaintiffs who may have little or nothing to their name. I routinely see the Request for Admission early in litigation “Admit that the Plaintiff does not own any real property within Arizona out of which costs of this lawsuit could be collected by execution sale.” This request is designed clearly to intimidate and harass plaintiffs, but is arguably relevant due to the current construction of the rules.

    Imposing a security for costs is only detrimental to the party without the means to pay it, but when it is ordered it virtually bars the door to non-property owners or, put differently, the non-wealthy. Moreover, the rule applies only to plaintiffs, suggesting that they must (on motion of the defendant) purchase their right to a trial over and above the filing fee, their own costs and the rules that allow for collection of taxable costs or attorneys fees from the defeated party. Even when the plaintiff submits “strict proof” of the inability to give the security, if the Defendant is not satisfied by the proof, the court must order the plaintiff to be humiliatingly examined regarding the inability to do so.

    Most civil attorneys and trial judges recognize that the cost bond rules are unfair, but this rule has been increasingly used as a weapon since the opinion in Thiele v. City of Phoenix, 232 Ariz. 40, 301 P.3d 206 (App. 2013), Petition for Review denied on January 7, 2014, which overruled constitutional objections made by a pro per litigant.

    Perhaps more importantly to the Court, however, is that these rules create an additional burden on the court system with added motion practice, hearings and rulings that do nothing to advance the settlement or resolution of the case.

    Rule 67(d) through (f) is blatantly discriminatory and the Court should eliminate these rules.

    Sincerely,

    /s/ Jennifer Fite
    Fite Law Group
    abarlow
    Posts:

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    31 Mar 2014 06:54 PM
    Adam Barlow
    Adam Barlow Law, P.C.
    1013 S. Stapley Drive
    Mesa, AZ 85204
    480-835-5553
    Fax: 855-688-4529
    adam@adambarlowlaw.com
    Bar Number: #027636

    Justices,

    After having read the proposed change Rules 67(d) and (f), I wholly support Petition R-13-0044. The inherent problems with the Rule as it stands, and as highlighted by the subject proposal is not unlike my own recent experiences in representing Plaintiffs who are chased by Defendants for cost bonds. It is a tool that have been distorted into a hurdle to court access and justice.

    Recently, it seems that cost bond requests have begun to flourish. Undoubtedly, as a result of the Thiele decision. However, there has been no positive change to efficiency or justice as a result. Rather, I have experienced an unneccessary increase in motion work and discovery. In a litigation world trending towards streamlining the process, the Thiele holding, and it's effect on Rule 67(d) represents a major setback.

    /s/ Adam W. Barlow


    RichD
    Posts:

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    02 Apr 2014 04:35 PM
    Richard A. Dillenburg
    2173 East Warner Road Suite 101
    Tempe, AZ 85284
    480-668-1924
    480-831-7438
    Rich@dillenburglaw.com
    013813

    ". . . with liberty and justice for all." Can we help fulfill the goal of "justice for all" by eliminating a rule that bars the poor from the courthouse, please?

    I support amendment of Rules67(d) and (f).

    Sincerely,
    Richard A. Dillenburg
    tomryanlaw82
    Posts:

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    05 Apr 2014 05:26 PM
    Thomas M. Ryan
    Law Office of Thomas M. Ryan
    555 W. Chandler Blvd., Suite 204
    Chandler, AZ 85225
    tom@thomasmryanlaw.com
    480-963-3333 (Main)
    480-726-1645 (Fax)
    Az Bar No. 007724

    I write in support of Petition R-13-0044 to amend Rule 67 of the Arizona Rules of Civil Procedure, which if adopted would have the salutary effect of eliminating cost bonds for those who can least afford to have the doors of the courthouse shut upon them. Rules 67(d) and (f) impose financial requirements on plaintiffs which discriminate against "non-property owning” parties who do not have the financial means to satisfy this obligation --- and which can force impecunious plaintiffs out of the judicial system.

    Arizona's lawyers and trial judges have long recognized that these cost bond rules are fundamentally unfair to plaintiffs who cannot afford a bond. Additionally, the current Rule 67 does nothing to ensure defendants with frivolous claims can pay their costs in the event they lose. The Court should eliminate these one-sided, discriminatory rules.

    Sincerely, Tom Ryan
    Chandler, AZ
    sreed
    Posts:

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    24 Apr 2014 04:45 PM
    Steven L. Reed
    O’STEEN & HARRISON, PLC
    Attorneys at Law
    1757 East Baseline Road
    Building #3, Suite #111
    Gilbert, Arizona 85233
    Telephone: (480) 644-1558
    Facsimile: (480) 644-1695
    Email: sreed@vanosteen.com
    Bar #: 006951

    Dear Justices:

    I am writing to support the proposed amendment to Rule 26(b)(4) regarding payment to treating physicians for providing testimony about the care of their patients. The recent case of Sanchez v. Gama has changed the common practice that has existed since I was a new attorney in 1981 of compensating medical providers for their participation in the legal process. The change will disproportionately affect injury victims and their treating medical providers.

    I have noted over the past 33 years of practice that it has gotten more difficult over time for individuals who bring injury claims to get appropriate medical care. I have had many clients who attempted to consult with a neurologist on recommendation of their primary care provider. They would call the neurologist on their health plan to set an appointment. The office staff would ask the client if they were involved in an injury claim, if so, they would refuse to set the appointment.

    This shows the reluctance of doctors, even when they could demand payment for their deposition testimony, to treat injury victims. I fear that defense attorneys will begin taking a lot more of the treating provider’s depositions because they are not required to pay an expert witness fee. I foresee primary care doctors and other specialist refusing to treat any injury victim after they have been pulled away from their practice a few times to give testimony about their patients without compensation for their time. This will impact injury claimants and it is not fair to the medical provider who is often an unwilling participant in the personal injury litigation process.

    The petition should be adopted.

    Steven Reed
    AZStateBar
    Posts:

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    06 May 2014 01:00 PM
    John A. Furlong, Bar No. 018356
    General Counsel, State Bar of Arizona
    4201 N. 24th St., Suite 100
    Phoenix, AZ 85016
    Telephone: (602)340-7236
    Fax: (602)271-4930
    patricia.seguin@staff.azbar.org
    Attachments
    Shaw John
    Posts:

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    11 May 2014 04:52 PM
    John Dalton Shaw
    Law office of Shaw and Gould
    1536 West Thomas Road
    Phoenix, Arizona 85015
    T- 602 265-1603
    F- 602 265-1505
    Bar # 005368
    john@shawandgould.com

    Ownership of real property, i.e. the family home, or aspiring to own real property is no longer indicia of good citizenship and good moral character. In today’s economy, many experts advise against ownership. As a practical matter an ever growing portion of the population lacks the financial resources to acquire real property. The purpose of requirement to show ownership of real property to avoid posting a bond was not based upon a desire to ensure that costs could be collected. This is so because for as long as that has been the law, there has also been a homestead exemption. Therefore the requirement was to ensure that people who brought lawsuit were of good moral character. Assuming that such a requirement was appropriate it is no longer serves it purpose.
    ignatius
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    19 May 2014 12:33 PM
    Frank I. Powers
    HARRIS, POWERS & CUNNINGHAM, P.L.L.C.
    361 E. Coronado Road, Suite 101
    Phoenix, Arizona 85004-1525
    Voice 602.271.9344
    Fax 602.252.2099
    fpowers@hpc-lawyers.com
    Bar No. 013369

    I write in support of the proposed amendment. I have been practicing in Arizona for over 20 years. Although I have seen many individuals who have been wrongfully injured have to deal with Rule 67's requirements, none of those individuals had their bond ultimately forfeited to a defendant. There also is no mechanism to make up for the time, expense and inconvenience in dealing with bond requirements. It is a one sided, costly process that unnecessarily wastes the Court's time and the time and resources of injured individuals. Arizona should abolish the rule.
    Frederick.Berry@azbar.org
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    19 May 2014 01:41 PM
    Frederick Curtis Berry, Jr.
    3101 N. Central Ave., Ste. 840
    Phoenix, AZ 85012-2679
    602-274-5700
    frederick.berry@azbar.org


    Whether or not a person owns property does not make her more or less likely to be judgment proof. This is my experience.

    More important, not owning property should not bar a person from the court house or make such a person subject to motion practice that may discourage equal access to justice. It's like getting your insurance claim denied, the Law of Large Numbers teaches insurance companies that many (if not most) people will simply give up if procedural obstacles are put in their place.
    tgkellyiii
    Posts:

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    19 May 2014 09:12 PM
    Thomas G. Kelly,III
    201 W. 2nd St.
    Yuma, Az. 85364
    Bar Number 4703
    tgkellyiii@aol.com

    I write in support of the proposed rule. There is no valid reason to condition the right to seek redress in our Court system to those who own real property. This rule is abused by insurance companies that want to prevent the poor from asserting their rights to obtain fair compensation. Your consideration is appreciated.
    mark@northernarizonainjurylaw.com
    Posts:

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    20 May 2014 12:39 PM
    Mark A. Kille
    Moceri & Kille PLLC
    7550 E. Addis Ave.
    Prescott Valley, AZ 86314-3239
    928-775-9398
    mark@northernarizonainjurylaw.com

    Dear Justices:

    I have been honored to represent victims of injury since 2002, beginning my career in Missouri, then transitioning to Arizona in 2006. I love practicing law in Arizona, and am proud to call Arizona my home. Thank you for taking the time to read my comment, and I encourage you to read all of the comments, many written by attorneys practing much longer than I, and with more wisdom to offer to the Court.

    Rule 67 has always baffled me. Essentially, an injured plaintiff brings suit in Arizona. If she is financially less fortunate by not owning "property," Rule 67(d) actually allows the courts to order the plaintiff to pay a monetary bond. Is this not discrimination? I think so. To rub salt in the wounds of the plaintiff with no property, many times the injured plaintiff is unable to work and earn an income because of the injuries caused by the same defendant requesting the bond, and therefore cannot afford the bond.

    In short, Rule 67 is a rule used by defendants to take an additional procedural jab at injured folks who are unable to afford a home, unable to work, and many times cannot pay even their bills. The same rule provides no protection to plaintiffs as only the defendant can bring a motion.

    I endorsed R-13-044 and respectfully encourage you to do the same by Amending Rule 67 as Mr. Tractenburg and Mr. Plattner have suggested in their Petition (exhibit 1).

    Thank you for your consideration.

    /s/ Mark A.Kille
    dalerobinson
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    20 May 2014 02:12 PM
    Dale W. Robinson
    Robinson & Allen, P.L.C.
    48 N. Macdonald St.
    Mesa, AZ
    480-964-1421
    480-834-5114 FAX
    dale.robinson@azbar.org

    I would like to express my support to eliminate the obstacle to those that do not have property in the State of Arizona enforcing their legal rights. Recently defendants have begun anew a concerted effort to try to deny those seeking compensation for their injures that lack resources the right to pursue their claims. This current rule is outmoded and discriminates against those that are either out of state or indigent and should be changed.

    I agree with the other comments that have been submitted in favor of this rule change.

    domanico
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    20 May 2014 06:58 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 0003200)

    MARK FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    domanico@mcao.maricopa.gov

    Attachments
    lkoschney
    Posts:

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    19 Jun 2014 11:29 AM
    Craig J. Simon
    State Bar #018920
    Simon Law Group PLLC 2141 East Broadway Road, Suite 113
    Tempe, AZ 85282
    Ph: (480) 745-2450
    Fax: (480)745-2454

    Note: Comment was filed February 27, 2014.
    Attachments
    lkoschney
    Posts:

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    19 Jun 2014 11:44 AM
    Carl A. Piccarreta, Esq.
    State Bar #007151
    Law Offices of Carl A. Piccarreta, PC
    145 S. Sixth Avenue
    Tucson, AZ 85701
    carl@capicclaw.com
    Ph: (520) 623-3799
    Fax: (520) 622-0521

    Note: Comment was filed February 27, 2014.
    Attachments
    James Kloss
    Posts:

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    21 Jul 2014 12:00 PM
    James K. Kloss
    Phoenix Plaza Tower II
    2929 N. Central Ave., Suite 1700
    Phoenix, AZ 85012-2761
    jkloss@lbbslaw.com

    This amendment addresses the wrong problem. The real problem is the filing of too many lawsuits and the pursuit of a claim when there is no downside to do so. We would be better of considering the English system of loser pays. As it now stands, cases can be filed with very little merit, with the plaintiff and their lawyer knowing they have little disincentive to do so. If a settlement cannot extortionately be taken from an insurance company, about all that is lost is some time for the plaintiff lawyer. The hidden cost to society of marginal claims is tremendous - - think of all the lost time from work, time spent by employees to deal with defense of claims, money spent on risk management, money spent on claims processing, etc. This hidden cost, never talked about, amounts to billions of dollars.

    Studies have shown that in countries that don't allow PI suits over low impact auto collisions simply don't have people reporting injuries from such collisions. The reason isn't that Americans are injured more easily in car accidents; the reason people report injuries here from low impact car accidents is because they can sue.

    We need to eliminate incentives to sue and create disincentives to sue in marginal cases. Not only should this rule not be changes, we ought to have a rule that everyone, including property owners, post a cost bond in all cases.

    J


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