Richard Coffinger
6858 N. 58th Dr.
Glendale, AZ 85301-3223
623-937-9214
[email protected]

I support the Petition to Amend Rule 111 filed by the State Bar of Arizona(SBA). The petition states at page 2: "Among the states, since 2000 at least seven have modified their citation rules, including Texas, Utah, and West Virginia (which now permit unpublished decisions to be cited as precedent), and Alaska, Iowa and Kansas (which now permit unpublished decisions to be cited for persuasive value)."

This petition would change the Arizona rule to conform with the current federal law applicable to federal appellate court memorandum decisions (Fed.R.App.Pro. 32.1, effective 12/1/06, applicable prospectively), and would permit citation of Arizona Court of Appeals unpublished memorandum decisions as persuasive. Currently Rule 111 prohibits citation of memorandum decisions as persuasive law.

Rule 32, Rules of the Supreme Court, entitled “Organization of the State Bar of Arizona,” states in part:

1. Establishment of state bar. In order to advance the administration of justice according to law, to aid the courts in carrying on the administration of justice.... to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence, and law reform; to carry on a continuing program of legal research in technical fields of substantive law, practice and procedure, and to make reports and recommendations thereon... the Supreme Court of Arizona does hereby perpetuate, create and continue under the direction and control of this court an organization known as the State Bar of Arizona..... The State Bar of Arizona may... promote and further the aims as set forth herein and hereinafter in these rules.
* * *
(d) Powers of Board. The state bar shall be governed by the Board of Governors, which shall have the powers and duties prescribed by this court. The board shall:
* * *
2. Promote and aid in the advancement of the science of jurisprudence and improvement of the administration of justice. [Emphasis supplied]

The Board of Governer's (BOG) procedure for consideration of a proposal for a Supreme Court Rule change includes submission of all petitions to interested and affected SBA committees and sections. Ms. Nedra Brown is the SBA staff employee in charge of its committees and sections. She distributes all proposed rule changes to the appropriate committees and sections after consultation with BOG Rules Committee Chairperson, currently Foster Robberson of Lewis and Roca LLP, who is a District 6 (Maricopa County) elected BOG member.

Each SBA committee and section chairperson then prepares an agenda for an upcoming meeting that includes consideration of rule change proposals. Pro and con advocates are invited to attend the meeting in person or telephonically to present arguments. After discussion at the meeting, members of committees and sections vote whether to support, oppose or take no position on the petition. The committee or section chairperson then files a report including the numerical vote on each proposal. These reports are then distributed by Ms. Brown, initially only to the BOG members on the BOG Rules Committee. The BOG Rules Committee then meets and, after discussion and consideration, the members vote on each proposal. Reports from the committees and sections and Rules Committee are then distributed to the full Board with the agenda for the meeting when the proposal will be considered. It is customary for the BOG to consider rule change petitions at an initial meeting for “information only,” with a vote being taken at a subsequent meeting. This procedure allows members to receive input from constituents prior to voting.

The court should place great weight on the SBA’s petition in light of the fact that it represents nearly 20,000 Arizona attorneys.

Richard Coffinger

R-07-0021 Petition to Amend Rule 111 of the Arizona Supreme Court and Rule 28 of the Arizona Rules of Civil Appellate Procedure (Proposal 1)

William J. Maledon
Osborn Maledon
The Phoenix Plaza
21st Floor
2929 North Central Avenue
PO Box 36379
Phoenix, AZ 85067-6379
Ph: 602-640-9331
Fax: 602-640-6079
[email protected]

John C. Gemmill
Judge
Division One
Arizona Court of Appeals
1501 W. Washington
Phoenix, AZ 85007

May 12, 2008


These comments are submitted by John Gemmill. Although I currently serve as chief judge of Division One of the Court of Appeals, these comments are mine alone--I am not writing on behalf of my colleagues.

I generally favor the availability and accessibility of our Memorandum Decisions and the limited citation of these decisions when there is no published Opinion on point, as long as it is clear that the unpublished decisions are not considered to be precedential. Further explanation follows.

AVAILABILITY AND ACCESSIBILITY:

First, in regard to the availability and accessibility of Division One unpublished Memorandum Decisions, in July 2007 we began placing all unpublished Memorandum Decisions and Decision Orders on our website. The petition of the State Bar of Arizona filed in December 2007 is factually incorrect when it states on page 4, lines 3-7, under section I.B: "In contrast to every federal circuit court and some state courts, it is also not currently possible for attorneys or members of the public to electronically access or search memorandum decisions. Memorandum decisions are sent only to the parties; others may only review such decisions by visiting the Court of Appeals’ clerk’s office." Perhaps this factually incorrect portion of the petition was drafted prior to July 2007 when we began posting all our Memorandum Decisions and Decision Orders on our website.

In the 10-month period from July 2007 through April 2008, Division One has placed approximately 900 Memorandum Decisions and Decision Orders on its website (separate from our published Opinions, which are also on our website). We provide a search engine to assist interested viewers in searching for names, words, and issues in these decisions. Our decisions will remain on our website for one year. Because under the current rules Memorandum Decisions and Decision Orders are not precedential decisions, we do not plan to leave them posted on our website beyond one year.

Additionally, we have recently negotiated with Thomson-West Publishing Company to allow West to harvest our Memorandum Decisions for inclusion in their Westlaw database. We expect this to be initiated in the very near future. We are willing to consider similar agreements with other legal research providers, as well.

We have undertaken these changes because we want to demonstrate transparency, promote accountability, display the quality of our decisions, provide a service to the bench, bar, and public, and hopefully increase public confidence in our court.

Regarding that portion of the proposed rule changes that would require Memorandum Decisions to be readily available to the public in electronic form, I respectfully suggest that the Supreme Court should not enact a rule change imposing rigid requirements requiring the Court of Appeals to do what it is already doing.

CITATION OF MEMORANDUM DECISIONS:

For the reasons cited in the pending petition and by Thom Hudson in his article in The Arizona Attorney in June 2006, I favor allowing limited citation of our Memorandum Decisions for possible persuasive value when there is no published Opinion on point.

I have one concern to mention, however--a concern that has not been discussed extensively, as far as I know: the potential expansion of our attorneys' standard of care if the Supreme Court allows citation of these decisions. Will every attorney then be held accountable for finding and citing unpublished Memorandum Decisions that may be on point or nearly so? In light of the myriad rules, deadlines, and land mines that already exist for active practitioners, I am reluctant to see another obligation (to read, analyze, and cite Memorandum Decisions) imposed on our fellow lawyers. Perhaps consideration could be given to stating—in any new rule allowing citation of unpublished decisions or in a comment thereto—that there is no intention to extend the standard of care for attorneys to reviewing, analyzing, and citing such decisions. It is also suggested that any new rule should make clear that these unpublished decisions are, by definition, not precedential. See Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 691 N.W.2d 484, 495 (Minn. Ct. App. 2005) (“The district court should not have excluded testimony of how unpublished opinions of this court might inform an attorney of trends in the law. The district court abused its discretion by refusing to allow the witnesses to testify regarding how the unpublished opinions of this court affected their understanding of the merger doctrine.”) aff'd as modified 711 N.W.2d 811 (Minn. 2006); Andrew T. Solomon, Making Unpublished Opinions Precedential: A Recipe for Ethical Problems & Legal Malpractice? 26 MISS. C. L. REV. 185 (2006-2007).

ADDITIONAL COMMENTS:

The five 3-judge panels of Division One began issuing more published Opinions in 2007, compared to recent prior years, and this pattern has continued in early 2008. We also offer on our website an automatic email notification service that allows any member of the public to subscribe to receive emails whenever we issue a published Opinion. We also have a link on our Menu Bar entitled "Forthcoming Opinions," and usually on Monday and Wednesday afternoons we will post the names and appellate cause numbers of cases in which we plan to issue a published Opinion the following day.

Thank you for allowing me to post these comments and for your consideration of them.

R-07-0021 Petition to Amend Rule 111 of the Arizona Supreme Court and Rule 28 of the Arizona Rules of Civil Appellate Procedure

Patricia K. Norris, Judge
Court of Appeals
Division One
1501 W. Washington Street
Phoenix, AZ 85007
692-542-4867

ANDREW P. THOMAS
MARICOPA COUNTY ATTORNEY
(FIRM STATE BAR NO. 0003200)

PHILIP J. MACDONNELL
CHIEF DEPUTY
BARBARA MARSHALL
DEPUTY COUNTY ATTORNEY
301 WEST JEFFERSON STREET, SUITE 800
PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-3800
(STATE BAR NUMBERS 003813 AND 010809)

Hon. John Pelander
Arizona Court of Appeals, Division Two
400 W. Congress, Suite 302
Tucson, AZ 85701
(520) 628-6947
(520) 770-3560 (fax)
[email protected]
State Bar No. 4734

Thomas L. Hudson
Osborn Maledon
2929 N. Central, Suite 2100
P.O. Box 36379
Phoenix, AZ 85067-6379
602-640-9301
[email protected]

I wish to add three brief reply comments in light of the comments received to date.

1. Judge Gemmill and Judge Norris have wisely suggested that any rule change concerning citation should not change the applicable standard of care for attorneys. I would support a comment noting that any such rule change is not intended to change the standard of care. Indeed, precisely because unpublished decisions -- whether from Arizona or other states -- have no precedential value, they should not impact the standard of care. (On the accessibility issue, Judge Gemmill is also correct that the petition was drafted before the Court of Appeals made their decisions available to Westlaw/Lexis or available on the Courts' websites.)

2. The County Attorney's suggestion to more broadly eliminate the distinction between published and unpublished decisions fails to account for the workload issues that the Court of Appeals' judges have raised. The literature on citation rules contains a breadth of views that mirror those expressed in the comments. When reviewing the literature carefully and thinking about it in connection with the article I wrote, I became convinced that the workload issues have some validity. The best way to account for them, however, is to keep intact the existing practice of distinguishing between published/precedential opinions (those that are fully vetted, carefully crafted, etc.), and unpublished decisions (which must stand or fall on the basis of their reasoning and with the recognition by judges and lawyers that they have not gone through the publication process). The pending Proposal 1 thus is a compromise position that attempts to balance the competing concerns and issues. Indeed, the views expressed here for more and less restrictive rules suggest that Proposal 1 strikes the right balance as Arizona's initial foray in joining the now majority of jurisdictions that permit citation to published decisions.

3. Division Two's comment largely rehashes much of the concerns that were vetted and debunked at the federal level. Arizona is not sui generis with respect to publication issues, and there are good reasons for the proposal that have been detailed elsewhere. The fear about battles over whether an unpublished decision has been properly cited has also not been realized in jurisdictions that have rules similar to Proposal 1. As for Proposal 2, no good reason has been offered as to why a decision that may be cited to the court that issued the decision, may not also be cited to an Arizona court. As noted elsewhere, that feature of Arizona's current rule makes the current rule one of the most archaic and restrictive in the nation.

Thank you for your consideration of these important issues.

Sincerely,

Thomas L. Hudson
Osborn Maledon, P.A.

[Note, I had attempted to submit a comment earlier this week, but for some reason the web showed this petition as "locked."]

R-07-0021 Petition to Amend Rule 111 of the Arizona Supreme Court and Rule 28 of the Arizona Rules of Civil Appellate Procedure

Randall M. Howe
Assistant Attorney General
for
Terry Goddard
Attorney General
1275 W. Washington
Phoenix, AZ 85007-2997
602-542-4266

NOTICE OF ERRATA filed June 16, 2008
Caption to comment should read "Comment on Petition to Amend Rule 111 of the Arizona Supreme Court and Rule 28 of the Arizona Rules of Civil Appellate Procedure."

R-07-0021 Petition to Amend Rule 111 of the Arizona Supreme Court and Rule 28 of the Arizona Rules of Civil appellate Procedure

Edwin M. Cook
SB #5402
Executive Director
Arizona Prosecuting Attorneys' Advisory Council
3001 W Indian School, Suite 307
Phoenix, AZ 85017
(602) 265-4779