Gerald A. Williams
Justice of the Peace
North Valley Justice Court
602-372-2000

I had the genuine honor of serving on the Committee on Civil Rules of Procedure for Limited Jurisdiction Courts. I would especially like to thank William Klain and David Rosenbaum for inadvertently giving an amazing, if not accidental, master’s class on the Arizona Rules of Civil Procedure during this process. In addition, if there was a judicial equivalent of a meritorious service medal, then Mark Meltzer should receive one. I literally have no idea how he perpetually and professionally completed all of the ongoing tasks assigned to him.


Philosophical Question and Some Concerns:


There are some threshold questions that should be answered prior to the adoption of the proposed rules. First, what will be the impact of these rules on the perception of justice courts and on the uniformity of practice among justice courts? Second, given that the vast majority of self-represented litigants are unlikely to read these rules, is it worth the training and other costs associated with such a significant operational change?


A justice of the peace in Arizona is an extremely important job. However, there is an unfortunate perception that since there are essentially no qualifications required for someone to become a justice of the peace (other than obviously winning an election), that nothing significant happens in justice courts. While nothing can be further from the truth (especially since there are few things more significant to someone than being evicted), I do have some level of concern that if simplified and abbreviated rules of civil procedure are adopted for justice courts, it may add to the perception of some that justice courts are not “real” courts.


It may seem counterintuitive that the adoption of uniform rules for justice courts could actually decrease standardization, but that could be an unintended consequence. For example, if the proposed rules are adopted and if I am faced with a legal argument on whether something is a genuine issue of material fact in connection with a summary judgment motion, then I am still going to apply the case law that governs that area. However, another justice of the peace may not and may simply state that a material fact is whatever he says it is until there is a set of case law that interprets the new justice court rules.


To address the second question I raised, the unfortunate reality is that the vast majority of self-represented litigants would neither read these rules nor take action based upon the various warnings contained within them. Based upon experience with the eviction rules, even though the summons and complaints are now substantially more detailed and even though landlords are required to attach an information sheet explaining the process, the default rates for tenants appear to be virtually identical to where they were before the new eviction rules were adopted. (The eviction rules have been very helpful for several reasons, but that is beyond the scope of this comment.)


Comments in Support of Proposed Rules:


If the benefits associated with these proposed rules outweigh the potential costs, then they should be adopted. The collective wisdom of the drafting committee members was and is genuinely remarkable. The task of simplifying the rules of civil procedure and placing them in a logical order was a much more difficult task than was originally envisioned. I wholeheartedly endorse the rules as written.


I do respectfully request that if the proposed rules are adopted, then some version of change of judge as a matter of right remain within them. If there is a belief that the standards in Arizona Rule of Civil Procedure 42(f) are either inappropriate or unworkable, then perhaps standards similar to those contained within Arizona Rule of Criminal Procedure 10.2(b) could be adopted. If the rules are silent on this subject, then the only available guidance will be from A.R.S. § 22-204. That statue, which is misnamed “Change of Venue,” is unworkable and to the best of my knowledge, is not used.

Hon. David Widmaier
Presiding LJ Judge
928-368-6200
[email protected]

Comments:
From David Widmaier, Presiding LJ Judge with input from Navajo County Limited Jurisdiction Judges and Superior Courts Bench and three local attorneys who regularly practice in our courts.

General Commentary:

The committee clearly has put in a great deal of work into this project, and where rules were developed, or past rules re-written, the work is excellent. However, in general the vast number of rules incorporated by reference make the new set of rules cumbersome if not unusable. It is our opinion that what we now have is two sets of rules to replace one. We would like to see many of the rules that are incorporated by reference to: either be incorporated as a rule verbatim, or incorporated through a re-write, or both.

It almost seems that the committee was driven by trying to have less rules and less pages, when in fact the volume of rules was never the issue, a simpler writing is what is important. We understand the committee tried to re-write the most-used rules with less emphasis on those rules rarely used; however, all the rules are important and it is our opinion that we should have a truly independent set of rules.

There are 40 new rules (although the actual number is 47, seven are wholly adopted from ARCivP), additionally 48 rules adopted by reference. There are actually more rules adopted by reference than there are new rules. One judge commented that he really enjoys the new Rules of Procedure for Eviction Actions as they are “simple, easy to read and all in one place. Any Pro Tem can get on the bench and there they are.” Another way to look at it, we took 170 pages of rules (Arizona Rules of Court, West Edition 2011), reduced it to 41 pages, but bumped it back up to almost 100 pages if rules by references are included. Here is the challenge, in the past few years the Supreme Court has written the Rules of Protective Order Procedure and the Rules of Procedure for Eviction Actions. These two new sets of rules for LJ courts had no previous counterpart. Respective committees were free to develop a set of freestanding rules without reference based upon a set of statutes. Possibly the JCRCP committee should have taken the task on as those previous committees did as though there had never been a set of civil rules – clearly a challenge considering we are all engrained in the rules we have worked and lived by for so many years.

To be fair, the rules that were re-written (with few exceptions) are clear, concise and easy to read and understand; some are better than the original rule. If this much energy was placed on the remaining rules, Arizona would have a truly excellent set of simplified, yet in-depth, rules usable by everyone including the public.

Specific Rules:

We will attempt to be brief in our commentary, with every attempt to give positive feedback.

101: An excellent introduction. However, under subsection (d). “These rules replace
the Arizona Rules of Civil Procedure, with the exception of certain Arizona Rules of Civil
Procedure that are specifically referred to in these rules. Arizona Rules of Civil Procedure that
have been incorporated by reference are listed in Table 1.” One judge asked, why a table, why not the actual rule, that way they are linked together, no need for two sets.

102: Note the word “duty.” It is used without definition in (b)1, 2, and 3, then we go to “is required,” this is oddly inconsistent. One or the other should be used throughout. “Is required” or “required to” is simpler and “duty” is a term commonly used in tort actions, however, it has many meanings. If the word is used, consider adding a definition under subsection (a). Another judge suggested the word “obligation.”

As a side note, there are several references to rules within these rules, we found this very useful for all interested.

103: A very good, useful rule. Subsection (d) needs to be a rule of its own, no reference. A lack of a record is more common than it should be and some JPs still hold onto the idea that we are courts not of record.

104 (a): This is a constant problem with both SRLs and represented litigant. However, this needs to be a written rule rather than by reference; many SRLs do not correctly name themselves as parties, especially those who are LLCs or other types of corporations.

104 (d): We are concerned here that “necessary” and “indispensable” parties are referenced in 19a and b, however there is no real definition of either in the rule. These rules (19(a) and (b) ARCivP) are not simple in any way; however, a re-write is not impossible.

105: Here we have an index for the ARCivP 25 et. al. We generally agreed this is a long rule and might be best simply given a new number (such as 105.1) and placed here with minor modifications.

106: This rule is a good, well-written rule, however, remove the last part of (b) and (c) which states “as provided by Rule ….. of Arizona Rules of Civil Procedure.” It is unnecessary and takes away from the fact that the JCRCP are the rules.

107: A very good set of rules. 107(c), excellent!

108(a): A good rule, but is there a remedy when there is something missing, ie. is it fatal?
(b): Format: Is hand written ok? Not mentioned.
(c): An excellent and needed new rule.
(d): Need to re-write 5(f) rather than reference.
(e): Good rule.

109: Overall a very good rule. We would like to see a definition of “verify” or “verification.” A lot of people don’t know what it really means. Note how affirmation is nicely defined in rule 109(d).
(b) We really liked the re-write of Rule 11 sanctions, however, it sort of gets lost under “effect of signature.” Why not add something like, “and effect of frivolous law suit or pleading.”

110: A very good start. 110(b)(4) is grammatically incorrect and a bit confusing. Two clear sentences would be better. “A short and clear statement of the factual basis of each claim being made. Each claim must show that the party has a right to relief from the court.”

111: Good.

112: A very good set of rules, also very useful for staff.

113(a): Why not use the language “by law” rather than Rule 4(e) of the “Arizona….” or better yet, explain it.
Also regarding (a), why not explain rule 4.1(d) rather than refer it. Everyone has to be served on every case. So in every case, the plaintiff will have to refer to ARCivP 4.1(d) to understand personal service.

113(c): Just as the committee was probably perplexed over how to simplify this rule, why not just cite it here with a new set of numbers and letters.

113(f): We all agreed this would have been an easy re-write, and likely a short rule.

113(g): Acceptance of service now requires a notary to sign off on the acceptance base upon this new rule, why the substantive change? The former rule (4f) did not require a notary, what is broken that needs changing?

114 (b): The rule does not address this issue which can be found in case law and McAulliffe, Rule 13 which discusses the difference between a specifically outlined counterclaim and a counterclaim that is simply “brought up” so to speak in the answer. This is surprisingly common with SRLs and occasionally by counsel. Rather than file a separate distinguishable counterclaim, the claim is made in the answer with no separate heading. The difference is this, if there is a separate counterclaim made, a responsive pleading is required. If it is contained in the defenses, it may still stand as a counterclaim, but no response may be necessary. (Civil Rules Handbook, McAulliffe, Rule 13, § 1. Scope of the Rules).

115: An excellent rule, but 114(c) is redundant to the rule.

116: Again an excellent set of rules which set the standard (or should set the standard) for all the rules. There are no references to other rules and anyone could use them. We did find Rule 116(b)(1) interesting in that a dismissal proceeds to a judgment under Rule 139. So does this eliminate dismissal with or without prejudice? Clearly a judgment is final (however may be vacated), was this the intent?
We also believe this is a very good rule in credit card cases, specifically 116(a)(3).

117: Another good set of rules without any references.

118: Good

119(a): After “response has been served,” place “pursuant to Rule 120(b)”
119(c): Do we need this rule at all?

120: Excellent throughout except 120(f)(1) Subpoenas which we will comment on under 123(c), however the reference here is simply unnecessary. Simply put the word “subpoenas” period.

121: Change “duty” to disclosure to “required by the parties” or “the parties obligation to disclose…”
The references regarding privileged information does on occasion come up.
The reference under penalties needs to be written up. Disclosure is required in every case where an answer is filed, any reference here to ARCivP makes the simplified rules not so simple.
The definition under 121(a)(3) of consumer debt, some judges question whether or not this was the correct or sufficient definition.

122: This is generally a good set of rules. 122(d) we believe it such an important rule, the reference should be removed and rule put in its place (it is long, but a re-write may be useful).
(e) again, duty may be replaced with a simpler word.
(f)(6) the court ordered medical examination of a party is so rare in a justice court (not ever heard of here), we wondered why not remove the rule rather than allow a party to abuse it at the courts’ expense.

123(a): This rule allows a certified court reporter in AZ to administer an oath for depositions. Why not a court clerk? A court clerk currently can take an oath from a party to an OP, a witness in a courtroom, and at a debtor’s exam, why not here? In the rural parts of Arizona Certified Court Reporters are not only hard to find, but nonexistent in justice courts.

123(c), 120, 137(b), Subpoenas. This rule, or lack thereof, is one of the worst. The rule says “Procedure,” it then references Rule 45 ARCivP. This is not a procedure at all. Put the procedure here and get rid of the reference. Actually, the better place to put it is 137(b) which is also not a rule. Every case that goes to trial may have subpoenas involved!

124: This rule got off to a great start then fell flat on 124(d) “Procedure.” Again, there is no procedure here at all, only a reference to another set of rules. Why not put the procedure here where it belongs?

125: Same problem as rule 124, a good useable tool until a party gets to (d) “Procedure” and there isn’t a procedure, only another book to read.

126: Same problem as 124 and 125, a great start with a good clear warning and explanation, then under procedure, there is no procedure, only references to another set of rules. Why?

127: Another rule which starts off well. We liked the double notice contained in the new rule. However, the procedure is only a reference to Rule 36 ARCivP. First off, this should be spelled out as a new rule of its own. Further, if it must be by reference let’s refer it to the correct rule which is Rule 36(b) ARCivP.
We would also note that many SRLs are confused as to what 25 requests mean. Does this mean 25 different pleadings, 25 pages, 25 letters. What it really means are 25 independent questions.

128: This is a good rule, however, is there or does there need to be a stated remedy for a lack of a response under 128(c)? Should the notice at the top of the motion that is required contain language with a warning? The language is under 128(e), but shouldn’t the warning be on the top of every motion as well?

129: Here is an example of an excellent rule, written concise with a procedure, time line, and notice. Take note of 129(c); “Summary judgment motion and proceeding.” This is what is missing from Rules 124-127. A real procedure. Rule 129 is very well done!

130: This is an excellent section that has been added for those courts which use mediation.

131: Overall a good rule. Note: there is no Rule 121(e) as stated in 131(a), it should be (c). 131(b) is a very welcome addition for judges and staff as well as litigants.

132: (a) and (b) are good, but (c) should be defined. Motions in limine are common and should be incorporated as a rule, not by reference.

133: In general we believe there needs to be two sets of rules, one clearly defined for trials and another for jury trials. The section on jury trials may be appropriate by reference, however bench trials should be defined with not reference at all.

134: If this is here, why is it mentioned in Rule 133? Subsection (b) brought great curiosity because it references a directed verdict and judgment notwithstanding the verdict. This might be a good spot to put in a modest rule that incorporates a motion for summary judgment at trial. The rule could be incorporated into rule 133, and then referenced in 134 to the rule in 133.

135: Good.

136: Good.

137: The rule starts off good, but made us wonder if there should be further mention in the overall rules that the Arizona Rules of Evidence apply in all proceedings.
137 (b): This rule is glaring in its lack of a rule. Subpoenas should be here not by reference!
137 (c): Do we need this rule at all? Should it not be governed by court policy and Language Access Plans pursuant to Admin. Order No. 2011-96? It should be noted that Rule 43(c), ARCivP may not be in compliance with the new Admin. Order and Federal Law.

138: Why have these rules at all? Justice Court law suits are simple, expedient low cost $10,000 lawsuits. Why not let the parties go to an appeal process?

139: Overall good. We wondered if “costs” under 139(d) shouldn’t be defined. Many SRLs think costs mean gas, mileage, lunch, time off work etc.
139(e): We wondered if a SRL hired outside counsel to help, but did not represent at any hearing, if the party may recover attorney fees. We aren’t completely sure from the rule.
139(i): Motion to amend judgment, this is common, even from attorneys who have made math errors etc. Why not a simple rule here rather than reference?

140: Under (f), can the court sua sponte set a default judgment hearing without any request from any party?

141: It appears from the rule that the new rule eliminates the old two prong standard to set aside which is excusable neglect and a meritorious defense. Now the requirement is only one of the set in rule (c). Overall we like the rule.

142: Good.

143: No need to mention rule 61 ARCivP., let this rule stand on its own.

144: Good.

145: What about adding Constable to 145(a)? In our courts the Constable is usually the person who executes civil arrest warrants; our law enforcement officers often do not honor them.

146: A small re-write or the actual rule could have been used rather than the references, in particular the reference under (c) to 65.1.

147: Good.

148: So a party cannot go to the court and get forms? We noticed that there is no mention of our courts, only a web site. What if a party doesn’t have a computer or internet?

Appendix to JCRCP: We noticed that the form notice states the rule will be available at the courthouse, in particular the JCRCP. Clearly with all the references, we will need to print out both sets of rules for every party, not just the JCRCP.

C. Steven McMurry
Justice of the Peace
Encanto Justice Court
620 W. Jackson St.
Phoenix, AZ 85003-2423
602-372-6300
[email protected]

I was infected with a passion for the Federal Rules (1) by Michael Berch. The gangly red headed professor at ASU would excite us all when he taught us about motions to dismiss and class actions. Later I could still hear his scathing denunciation of demurrers when I learned to use them while litigating in California. Professor Berch's love for procedure has guided me through years of private practice, and years as a Justice of the Peace.

While I began my practice in Arizona before the adoption of the Zlacket Rules, I have since spent a lot of time as a JP explaining the concepts of disclosure to self represented litigants. Unlike the proposal at hand, the Zlacket revolution did not reject the structure of Rule 26 et seq. of the Federal Rules. Instead, it built upon and improved that structure.

I oppose the proposed Civil Rules of Procedure for Limited Jurisdiction Courts. My fundamental objection lies with the decision to jettison the numbering system used with the Federal Rules, and to adopt a new and unique numbering system. A motion for summary judgment would no longer be governed by Rule 56. It would now be a motion filed under Rule 129. The Justice Courts should adjust the existing rules to simplify matters and accommodate self represented litigants. We should not discard the Federal Rules in favor of our own unique system.

In both the federal system and in Arizona case decisions, the details and meaning of the Federal Rules have been “fleshed out” by the common law system. There is, however, no common law system developing the law as applied in the Arizona Justice Courts.

An appeal from a Justice Court decision goes to the Superior Court, and no further. An unpublished Superior Court decision affirming or reversing a Justice Court has no precedential value (2). It cannot be cited for any purpose. Certainly there exists a theoretical right for a special action beyond the Superior Court. The discretionary granting of such jurisdiction, however, coupled with the subsequent issuance of a published decision, is extraordinarily rare. It simply doesn’t happen often enough to develop a common law.

Actually, an affirmance or reversal may not even impact the future application of law in the particular Justice Court from which the appeal arose. The JP may never learn of the reversal if, upon remand, the file is passed to a pro tem judge. Moreover, the JP may be unpersuaded by the reasoning of the Superior Court (3). The JP need have no concern about reasserting the previous, overturned rationale. A new appeal will probably be assigned to a different Superior Court judge who is uninformed about the previous, uncitable reversal and may well reach a different conclusion.

The saving grace has always been that Justice Courts rely derivatively on the common law developed in case decisions rendered by the Supreme Court and the Courts of Appeal arising from appeals from the Superior Courts. These decisions are controlling. For the common law of civil procedure (and other areas as well) decisions from the federal system interpreting the Federal Rules are persuasive.

Adopt these proposed rules and we lose our saving grace. We are left utterly adrift. I rarely see a motion for summary judgment that doesn’t cite the important decision in Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). There is, however, no case law interpreting and elaborating Rule 129, and there never will be. I do not believe that Orme School applies to a Rule 129 motion. I know about the table in the back of the proposed rules that would cross reference Rule 129 to Rule 56. I also know that the proponents of the table have no familiarity whatsoever with the dynamics of litigation in Justice Courts. That table will be viewed as an arcane suggestion, at best. It simply will not serve authoritatively to import the reasoning of Orme School into the practice under Rule 129. Instead, if you have 85 Justice Courts in Arizona, you soon will have 85 different systems of reasoning and practice applicable to Rule 129 motions.

Obviously much good thinking and hard work has gone into these proposed rules. I like very much the idea of the proposed warning set out in Rule 129 (b), and would welcome a Justice Court addendum to Rule 56 that required it (4). If these proposals were modified into a supplement for Justice Courts to the Arizona Rules of Civil Procedure, then I would be an advocate for them.

That was, I believe, essentially the reasoning identified by Justice Hurwitz as underlying the recent amendments to the Arizona Rules of Evidence. It is extremely helpful to be able to turn to Rule 412 of the Arizona Rules of Evidence, find that it is blank, and be informed immediately by a comment and cross-reference that Federal Rule 412 doesn’t apply in Arizona Courts. It would be very helpful to be able to turn to Rule 65 (d), Arizona Rules of Civil Procedure, go to the Justice Court Addendum, and learn that Justice Courts don’t issue temporary restraining orders, and perhaps review an official comment explaining why that is so. The structure of the proposed new rules renders that sort of tool unavailable.

Sometimes a clear departure is absolutely warranted. When the first version of what became Rule 1 of the Rules of Procedure for Eviction Actions – the rule that the Rules of Civil Procedure don’t apply to evictions – was proposed, Dan McAuliffe was apoplectic. He thought his fellow committee members had committed heresy. In time, however, he reversed his position and became the biggest proponent of the Rule. He appreciated the need to warn the litigant familiar with civil litigation that eviction practice was fundamentally different. We do not, however, want to announce that civil litigation in Justice Courts is a fundamentally different world that bears no resemblance to litigation in Superior Court. That is precisely what the structure of these new proposed rules announces.

Committee members have trumpeted the elegance of the design of the proposed new rules. They have suggested that the proposed new numbering system is much more elegant and logical than the structure of the Federal Rules. The hubris underlying these remarks troubles me. I might sit down one day and write out a structured enumeration of fundamental human rights. My new structure would, I believe, have more logical appeal and elegance that the clumsy structure amended into our constitution at the time of its adoption. Indeed, it’s been done. The French led the way in Paris in 1948 when the Universal Declaration of Human Rights was promulgated. This country adopted it. Nevertheless, when we focus today on the freedom of self expression we invoke the First Amendment. No one cites Article 19 of the UDHR. When we are concerned about efforts to exploit a coerced confession we don’t quote UDHR Article 5. We rely on the Fifth Amendment. The wise men in Paris in 1948 deluded themselves if they thought they would ever eclipse the work of Founding Fathers.

I’m afraid the proponents of these new rules are similarly deluding themselves by not building on the existing structure of the Federal Rules. I can imagine a Justice Court Addendum to the existing structure to which Superior Courts would refer when dealing with self represented litigants, one to which courts in other states would look for suggestions on how to make litigation more user friendly. None of this will happen under the proposed structure. The proposed rules might control in Arizona Justice Courts, but they will remain unknown anywhere else. The hard work incorporated into them will sink into an obscurity much more profound than the UDHR.



Footnotes:

1) I shall refer herein to both the Federal Rules of Civil Procedure and the Arizona Rules of Civil Procedure as “the Federal Rules”. The differences between them are not significant for this Comment.

2) Ariz. R. Supreme Ct., Rule 111 (c) and Superior Court Local Rules—Maricopa County, Rule 9.11.

3) The apocryphal story – which I’ve never been able to verify but which I have heard repeated so often that it may as well be true – is that Colin Campbell, before he became Presider, once reversed a JP and ordered a jury trial in a small claims case. No party ever cited A.R.S. Sec. 22-518 (no jury trial in small claims) to Judge Campbell. As a Presider, he instituted the excellent system under which all lower court appeals went t Michael Jones. Judge Jones earned the attention and respect of Maricopa County JPs. Sadly, that system has been dismantled.

4) My Court Manager and I adopted a similar practice years ago in the Encanto Justice Court. When a Motion for Summary Judgment is filed against a self represented litigant, we send out a warning citing Timms v. Franks, 953 F.2d 281 (7th Cir. 1991) (a trial court should warn a self represented litigant about the consequence of failing to file affidavits responding to a Rule 56 motion) and recommending the use of affidavits. Of course, any referral to Timms would be useless if the motion is filed under Rule 129.

John A. Furlong,Bar NO. 018356
General Counsel
State Bar of Arizona
4201 N. 24th St., Ste. 200
Phoenix, AZ 85016-6288
602.252.4804
[email protected]

Gerald A. Williams
Justice of the Peace
North Valley Justice Court
602-372-2000

Reply to State Bar’s Comments:

The proposed justice court rules strike a fair balance between the competing interests involved. The State Bar’s position unfortunately takes sides in that conflict. In addition, there are some problems with some of the State Bar’s proposed language.

The best example of problematic language from the State Bar is the suggested rule on answers. Rather than have any meaningful requirements for an answer, the State Bar’s suggested language is merely aspirational (“An answer should also state a party’s legal defenses and may state any factual defenses.”). In others, it would be nice if the answer said what was in dispute; but there is no requirement that it actually do so.

The suggested language on counterclaims (“The party filing the counterclaim or cross-claim exceeding the jurisdiction of the justice court is not required to take any further action until the matter is transferred to superior court.”) is both unnecessary and counterproductive. It arguably requires an automatic transfer of cases to superior court merely because a counterclaim for $10,000 or more was filed.

From time to time, a party or even an attorney files a frivolous counterclaim for the purpose of defeating the jurisdictional limit of a justice court in an attempt to delay the case by forcing it to be transferred to superior court. An incentive for this practice should not be formalized in the rules. In fact, the counterclaim rule in the Rules of Procedure for Eviction Actions states the exact opposite the State Bar’s proposed rule, just so this delay tactic cannot be used. RPEA 8(b).

The drafting committee for these rules was well balanced and every possible stakeholder was represented. The legal services attorneys and the debt collections attorneys were able to come to a meaningful and balanced compromise on language. However, a second set of legal services attorneys, none of whom had participated in the open and public rule drafting meetings, collaterally attacked the proposed justice court rules by bypassing the drafting committee and sending their concerns directly to the State Bar of Arizona.

During a conference call on the morning of February 21, 2012, the State Bar’s Rules Committee, which is a subcommittee of the Board of Governors, unanimously rejected the compromise language and added the following the language to proposed Rule 110(b)(2): “In lawsuits to recover on an assigned debt, the identity of the original owner of the debt, the date of default, and the amount due as of the date of default.” This was done even though there was an acknowledgement that “date of default” is not a term of art because there can be more than one date that a consumer is in default on a consumer debt. During this same conference call, the Rules Committee adopted what was identified as section three of the CPPC’s comment draft. This draft included the new aspirational (or virtually meaningless) requirements for an answer.

If the rules favor one side over the other, then I will not be able to support them. If the situation were reversed, and a group of collection attorneys got together and got the State Bar to advocate a series of rules designed to help only their side (e.g. “An answer that alleges payment as an affirmative defense must have either a copy of the checks attached or contain the date and check number when the final payment was made.”), then I would feel the same way.

If Arizona, as a state, wants to make it more difficult to collect consumer debts, then that is a perfectly acceptable public policy position. However, our system of government is not designed to have the judicial branch, through rule making procedures, impose substantive law.

I continue to support the proposed justice court rules as they are currently written.

Steven J. Itkin
Waterfall Economidis Caldwell Hanshaw & Villamana, PC
5210 E. Williams Circle
Suite 800
Tucson, Arizona 85711
520-745-7817 direct
520-745-1279 fax
[email protected]
Arizona State Bar #012201

I have been practicing law in Arizona for over 23 years. During my career, I have represented both debtors and creditors. I understand the need and the desire to make Arizona’s Courts more available and the judicial system more user friendly to litigants who become defendants in the large number of debt collection cases that are filed in Arizona’s Justice Courts and who cannot afford representation. I agree that there are things that can and should be done to assist individuals who must represent themselves in civil litigation due to their inability to pay their debts. The plaintiffs in these cases have competent counsel and the defendants not only often do not, but they also often have little or no understanding of the law or how our legal system works.

Although the proposed new Justice Court Rules seek to make civil litigation in the Justice Courts easier for pro se defendants in collection cases, they actually create new classes of plaintiffs and defendants and more opportunity for wide variations in judicial interpretation that will result in disparate application of the law. Plaintiffs in collection cases will have a higher standard of proof to meet compared with other plaintiffs who bring civil claims in the Justice Courts and even compared with plaintiffs who bring collection claims in Superior Court. This would apply whether or not the defendants have legal representation.

Another issue that I saw in these proposed new Rules is an apparent failure to recognize existing Arizona law on defaults in making payments on installment contracts. Unless the balance due is accelerated, there is no right to bring a claim for unpaid future installments until those future installments become due and then unpaid. Requiring a default date as proposed in these new Rules would create confusion and uncertainty. Each due and unpaid installment is a default. Acceleration triggers another default on the future unpaid installments. Each Justice of the Peace will be able to apply a different requirement for this undefined default date making it subject to judicial discretion. More litigation would result and lenders would be forced to factor this into determining the availability and cost of consumer credit in Arizona.

Many of the additional protections included in the proposed new Rules will result in more cost that individual defendants will have to pay. For example, requiring that additional notices be sent requesting that discovery be responded to timely will increase the cost of a plaintiff’s representation. That additional cost will be awarded to successful plaintiffs. That will only impose an additional burden upon the consumer/defendant. Also, the additional cost of enforcement will likely cause lenders to decrease the availability of credit in Arizona and increase the cost of obtaining and using credit for Arizona borrowers. Our civil judicial system is participatory. Making it easier for litigants to participate is good. Making it easier for parties not to participate is counterproductive.

On a constructive note, I believe that the Superior Court Rules for Compulsory Arbitration are a model for how the litigation process in our Justice Courts can be simplified. In Compulsory Arbitration the Rules of Evidence are simplified in favor of fact finding, due process is maintained and all parties are treated fairly. I do not believe that the proposed new Justice Court Rules of Civil Procedure accomplish any of these goals. Regrettably, I believe that they will accomplish the exact opposite and undermine those principles that are the basis of our judicial system.

Kenneth W. Seidberg
2412 E. Campbell Ave.
Phoenix, AZ 85016
[email protected]
SBA# 3690


RESPONSE TO PROPOSED NEW JUSTICE COURT RULES

I have been a licensed Arizona Attorney for nearly 38 years and I like to think I have practiced ethically and professionally in the Justice Court System for more than thirty (30) of those years. As a practitioner I urge this Court to reject, wholesale, the proposed Rules for Justice Court. I am not alone in this request. 1

While Justice of the Peace Court is a court of limited jurisdiction, IT IS NOT A SMALL CLAIMS/PEOPLE’S COURT. While used by many individuals who chose not to be represented by Counsel (pro se defendants), Justice Court by virtue of its increasing jurisdictional limits is the exclusive court for many parties who desire and secure legal representation. Licensed Arizona Attorneys practicing in Justice Courts are not the exception but the rule. And many if not most of this same Counsel, actively and regularly practice in Superior Court. Therefore, having and requiring the same civil rules of procedure (clearly intended by the Arizona Legislature) 2 is a critical feature for the administration of justice.

Within the Justice Court system, Arizona has recognized the need for a “people’s court”; namely, a small claims division. It is within that limited jurisdiction court that non represented /pro se parties practice and resolve issues of law and fact. It is there, in the small claims division, and only in that division where this Supreme Court should consider new and simplified rule changes; NOT in Justice and Superior Courts where the existing Rules of Civil Procedure have served us ALL so well.

While many parties represented by attorneys will continue to seek justice in the Justice Courts, recently the Supreme Court (not the Legislature) “notched out” a special category of citizen (See the Supreme Court Administrative Order 2011-13). However, that Order did not mandate changing our Rules of Civil Procedure. The Court stated its conviction that ”Simplifying court processes in limited jurisdiction courts and making civil rules of procedure in these courts more comprehensible to everyone would strengthen the administration of justice.” Respectfully, the submitted new Rules of Procedure have significantly changed the Rules, not simplified them. What’s more, many of the changes are substantive in nature designed to benefit only this newly “notched out” category, namely pro se defendants.

Personally, I have always welcomed any reasonable and even handed process that might ‘simplify’ our legal administrative process of law. While our judicial process is based upon an adversary system, our current system and our current Rules of Civil Procedure here in Arizona mandate truth and full disclosure. Respectfully, rewriting the existing Rules will do little to simplify the legal process or level the playing field (which appears to be the Court’s intention) 3. How does one rewrite these important and evolved protocols in language an elementary student can understand 4? Respectfully, it is the fair and proper interpretation/implementation of the existing Rules by fair and knowledgeable Judges that will accomplish the just and even handed administration of law this Court seeks to improve upon.

Simplify, if you can; make rules (existing ones) more comprehensible to promote the Court’s strategic goal of streamlining court processes; but do not change, alter and bend the rules in favor of any one constituency. This Court should never bow to such conduct. It diminishes our civil justice system and in doing so will only create turmoil, anger and reaction to what is not only perceived but is, in fact, the imposition of unequal administration of justice.

Thank you for the opportunity to make these comments.

Respectfully,
Kenneth W. Seidberg



1 In his comments to the Committee, Justice of the Peace C. Steven McMurry urged a complete rejection of these proposed rules for his reasons stated.
2 A.R.S. Sec 22-211. Procedure and practice
The law governing procedure and practice in the superior court so far as applicable and when not otherwise specially prescribed, shall govern procedure and practice in justice of the peace courts.
3 It is unlikely, pro se defendants will read and understand the new Rules
4 At least one State Bar comment referenced attempting to simplify rules comprehensible at a fourth grade level

Brian K. Partridge
11445 E. Via Linda Ste. 2-610
Scottsdale, AZ 85259-2839
AZ Bar Number 028090
[email protected]

The State Bar of Arizona’s comment on the Justice Court Rules of Civil Procedure seeks to have the Supreme Court of Arizona adopt proposed Rule 110(b)(2) which reads: “In lawsuits to recover on an assigned debt, the identity of the original owner of the debt, the date of default. . . .” This seemingly innocuous clause hides a host of problems.

The “date of default” was not defined by this proposed Rule. Generally, a default is “[t]he omission or failure to perform a legal or contractual duty; [especially] the failure to pay a debt when due.” Black’s Law Dictionary 449 (8th ed. 2004). The discussion of the motion revealed that many members of the Rules Committee who recommended this addition to the State Bar of Arizona thought of default as occurring on a single date. But contracts payable in installments— including credit cards debts, automobile loans, promissory notes, rent, and mortgages— usually have several defaults before the debt is accelerated. In Arizona, a default occurs whenever a person fails to make the promised payment at the time that it matures. See, Navy Fed. Credit Union v. Jones, 187 Ariz. 493, 495, 930 P.2d 1007, 1009 (Ct. App. 1996). Creditors may sue on the initial default before the second payment is due, the first two payments before the third is due, and so on. If an acceleration clause is present and exercised, however, the future installments become due on the date of acceleration. Id. Based on the interplay of these two rules, the individual missed payments represent distinct defaults. Acceleration of the future payments is also a default; it allows creditors to sue on the entire remaining balance.

These rules provide the creditor and debtor flexibility “to continue to work toward amicable and fair resolutions between themselves rather than immediately drawing litigation swords and marching off to a court-house.” Id. (internal quote and citation omitted). Creditors may take advantage of this flexibility and allow a series of defaults before accelerating the debt. Yet, the recommend augment to proposed Rule 110(b)(2) requires assignees of debts to identify a single “date of default” in their complaints. This requirement will cause confusion and lead to additional, unnecessary litigation. Assignees will identify different dates of default. Some may choose the date of the initial default while others choose the date of acceleration. Depending on the contract, both dates are valid. Nevertheless, debtors, courts, creditors, and assignees may determine which date of default that should be included in the complaint differently. This ambiguity will breed litigation.

Litigation on procedural ambiguities increases costs and delays resolution of cases on the merits. To avoid these costs and delays, assignees may include the date of the initial default, each intermediate default, and the date of acceleration. These various and sundry approaches may bewilder the debtor, which undercuts the purpose of the proposed rules—simplifying the rules of procedure to enable unrepresented litigants to participate in their cases.

The requirements are intended to help debtors identify the debt and prepare a response to the complaint. I agree that debtors should have sufficient information to identify the debt and prepare a response. Few people keep track of their debts by the date of a missed payment, so the initial and intermediary dates of default are unlikely to help debtors identify the account or the amount owed. The date of acceleration and the amount owed at that time gives debtors more information about the claim against them. As discussed above, numerous dates of default, followed by a final acceleration, are the norm so a requirement that the “date of default” be stated in the complaint presents an unsolvable legal dilemma. To avoid this unnecessary dilemma the Arizona Supreme Court should endorse the proposed rule as drafted by the Committee on Rules of Procedure for Limited Jurisdiction Courts.

Sincerely,
Brian K. Partridge

Judge Anne Segal
Anne Ward, pro tem
Tucson Consolidated Justice Court
115 N. Church
Tucson, AZ 85701
State Bar No. 006228
email response: [email protected] or [email protected]

David E. Hameroff
Hameroff Law Group, P.C.
3443 E. Fort Lowell Road
Tucson, AZ 85716
520-792-4700
[email protected]
Arizona State Bar No: 007070

RE: COMMENTS ON THE LEGAL SERVICES RECOMMENDATION


BACKGROUND:

The Legal Services Committee recommends that the proposed Justice Court Rules of Civil Procedure Rule 140 include a new subsection which requires justices of the peace to find that documentary evidence offered under the “business records exception to Rule 803 of the Rules of Evidence” can only be established by statements of an employee of the company creating the records in consumer debt collection cases. (See, Letter of Ellen Sue Katz dated February 1, 2012, pp. 2-3, reprinted as part of Appendix C to Comment of the State Bar of Arizona on Petition to Adopt Justice Court Rules of Civil Procedure).

At the Rules Committee meeting on February 10, 2012, which both Ms. Katz and I attended, I specifically recall her withdrawing this particular section of her February 1, 2012 letter. If the Rules Committee would review the tapes or the transcript, after introducing herself, this was her first order of business that she proffered. I urge the Rules Committee to review the transcript and if indeed, this is correct, ask the Legal Services withdraw this particular provision from its February 1, 2012, letter.

This being said, and recognizing that the proposed language has been submitted, allow me to comment on this complete change in the Rules of Evidence suggested by Legal Services.

ARGUMENT:

This recommendation impinges upon the Arizona Rules of Evidence in two key ways. First, the recommendation would force the justice of the peace to consider excluding evidence without an objection. Second, the recommendation limits the methods for laying foundation for the application of the business records exception to something other than the “testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11).” Ariz. R. Evid. 803(6)(e). These changes to the law of evidence create needless and complicated variations between the justice and superior courts of this state. The Justice Court Rules of Procedure were intended to be easier to understand than the Arizona Rules of Civil Procedure; this recommendation is not. As a substantive matter, these changes require the judge to stand in the shoes of an absent defendant, and then abrogate what is perhaps the most important role of the court – to use its discretion in weighing the validity and reliability of the evidence.

The Arizona Rules of Evidence assume a participatory system where one party offers evidence and the other may interpose an objection which the judge then resolves. This concept is made apparent in the rule addressing the right to appeal an evidentiary ruling. A party may only predicate error on rulings excluding evidence when “a substantial right of the party [is] affected” and that party must make the “substance of the evidence . . . known to the court by offer [unless the substance] was apparent from the context within which questions were asked.” Ariz. R. Evid. 103(a)(2). Indeed, one party’s failure to timely object to the admission of evidence operates as a waiver of the objection. See, State v. McDaniel, 136 Ariz. 188, 196, 665 P.2d 70, 78 (1983) (“It has long been the law in Arizona that failure to object to an offer of evidence is a waiver of any ground of complaint against its admission.”) Defaulting defendants in consumer debt collection cases have notice and an opportunity to present a defense, just like any other defaulting defendant. Forcing the justice of the peace to interpose a hearsay objection to all of the documents offered by a plaintiff seeking to collect a debt ignores the duty of the defending party to participate in his, her, or its defense. This proposed rule makes the judge a stand-in for the defendant and the referee of a particular subset of plaintiffs and their evidence.

Moreover, questions concerning the admissibility of evidence are generally within the sound discretion of the trial court. See, State v. McGill, 231 Ariz. 147, 154, ¶30, 140 P.3d 930, 937 (2006) (en banc). The proposed change to the rule restricts that discretion without case law or statute ever addressing the issue. The proposed change presumes that plaintiffs suing to collect consumer debt cannot lay a “proper foundation” for their “documentary evidence and that all affidavits or declarations are [not] based on personal knowledge” because it requires the court to make affirmative findings that this evidence is admissible before issuing a default judgment. (See, Letter of Ellen Sue Katz dated February 1, 2012, pp. 2-3, reprinted as part of Appendix C to Comment of the State Bar of Arizona on Petition to Adopt Justice Court Rules of Civil Procedure). The recommendation inverts the presumption that evidence is admissible unless challenged. This inversion is egregious because defendants who participate in the legal process may waive their objections while those who fail to participate have objections raised for them. Under the recommendation’s rule, those who appear in court and contest their opponent’s claims may be disadvantaged compared to those who do not.

BUSINESS RECORD EXCEPTION:

Ignoring this affront to the Arizona Rules of Evidence and deciding that every justice of the peace should impose a hearsay objection on every piece of evidence proffered by those seeking to collect on consumer debts does not avoid the problems created by the Legal Service Committee’s recommendation. The purpose of the business records exception to the rule against hearsay is to bring the “realities of business and professional practice into the courtroom and [the rule] should not be interpreted narrowly to destroy its obvious usefulness.” Merrick, v. United States Rubber Co.,7 Ariz. App. 433, 436, 440 P.2d 314, 317 (Ct. App. 1968) (interpreting the predecessor to Arizona’s Rules of Evidence). Furthermore, the “principal precondition of documents as business records” under the analogous Federal Rule of Evidence, “is that the records have sufficient indicia of trustworthiness to be considered reliable.” Saks Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d Cir.1987). In the consumer collection industry, it is common practice for the original creditor to supply its business records to an assignee that incorporates them into its own business records and relies upon them. Limiting the “custodian or other qualified witness” to the original creditor’s employee limits the business records rule’s obvious usefulness to the courts and parties in reliably finding, litigating, and resolving issues of fact. Ariz. R. Evid. 803(6)(e). Limitations on access to reliable information increase the probability of determinations based on factual errors. Therefore, any new or additional limitation in a party’s ability to offer evidence to support its case must be carefully scrutinized.

Several courts in other states have considered the issue of whether one who incorporates another’s business records into its own business records is a competent and qualified witness under Rule 803(6) and answered it affirmatively. See, Simien v. Unifund CCR Partners, No. 01-08-00593-CV, Tex. App., First District, April 15, 2010; Jaramillo v. Portfolio Acquisitions, LLC, No. 14-08-00939-CV, Tex. App., Fourteenth District, March 30, 2010; Calvary Portfolio Servs., LLC v. Kimbaris, A-2062-10, Super. Ct. App. Div. N.J. (Dec. 7, 2011). These states are in accord with the federal courts that have considered the issue. The courts have held that “that a record created by a third party and integrated into another entity’s records is admissible as the record of the custodian entity, so long as the custodian entity relied upon the accuracy of the record and the other requirements of Rule 803(6) are satisfied.” Brawner v. Allstate Indem. Co., 591 F.3d 984, 987 (8th Cir. 2010); see also, United States v. Childs, 5 F.3d 1328, 1333-1334 (9th Cir. 1993) (summarizing the positions of the circuit courts).

OTHER HERESAY EXCEPTIONS:

The recommendation also ignores the possibility that some of the debt collection plaintiffs will present documentary evidence that is admissible under other exceptions to the rule against hearsay. The recommendation is that the court determine “whether a proper foundation was provided for . . . the documentary evidence and that all affidavits or declarations are based on personal knowledge” or “whether any affiant or declarant provided sufficient foundation to establish the business records exception to Rule 803 of the Rules of Evidence but only for records of the company for which the affiant or declarant is employed.” (See, Letter of Ellen Sue Katz dated February 1, 2012, pp. 2-3, reprinted as part of Appendix C to Comment of the State Bar of Arizona on Petition to Adopt Justice Court Rules of Civil Procedure). By its terms, the recommendation appears to limit the Court’s consideration of records to those possessing a sufficient foundation to apply the business records exception to the rule against hearsay for the affiant’s employer’s records. The exceptions to the rule against hearsay are numerous and varied. Suppose that the affiant establishes that the records relied upon are not business records but are instead public records, records of documents effecting an interest in property, ancient documents, or market reports. See, Ariz. R. Evid. 803(8) (public records); 803(14) (records of documents effecting an interest in property); 803(16) (ancient documents); 803(17) (market reports). Despite being recognized exceptions to the rule against hearsay, the recommendation might exclude them because they are not business records. The recommendation leads to an absurd result.

If a timely hearsay objection to a document is raised, Arizona’s Rules of Evidence require a “custodian or other qualified witness” or a “certification” under Rule 902(11) to lay the foundation for the application of the business records exception to the rule against hearsay. Ariz. R. Evid. 803(6)(e). The Rules of Evidence do not define who a “qualified witness” is because that determination is left to the trial court’s discretion based on the facts presented to it. In our system of justice, determinations of fact are best made when both parties with access to the facts are before the court and participate. The Legal Services Committee seeks to upend the participatory requirement of American justice by making the judge both a skeptical participant and the ultimate decision maker. The recommended change also restrictively redefines who can be a “custodian or other qualified witness” in justice courts deciding consumer collection cases. This recommendation selectively targets a particular class of plaintiffs in a particular type of court while leaving the business records exception alone for other justice court cases and cases pending in every other court in Arizona. The radical change to the role of the court and the admissibility of evidence in specific situations is ill-advised and incorrect.

CONCLUSION:

Finally, the recommendation strays far outside the Arizona Supreme Court’s mandate that the Justice Court Rules of Civil Procedure simplify the process of litigating cases in the justice courts to encourage participation in those courts. By altering the rules of evidence to transform the judge’s role and limiting the court’s access to reliable evidence, the recommendation fails to simplify the procedures of the justice courts. Instead, the variation from the rules governing other courts will complicate the adjudication of these cases and could confuse the general public. Therefore, this recommendation should be rejected.

Respectfully,

David E. Hameroff

James R. Vaughan
Senior Partner
11445 E. Via Linda, Ste. 2-610
Scottsdale, AZ 85259-2839
State Bar # 016809
[email protected]

Re: Comment of the State Bar of Arizona on the Petition to Adopt Justice Court Rules of Civil Procedure

Since the 15th century, Lady Justice—a familiar icon outside courthouses across the country— has often been depicted wearing a blindfold. The blindfold represents the idea that justice is blind to the identity, power, status, money, or weaknesses of the parties that appear before the bar of justice. Fairness means deciding cases on the evidence presented in a court of law and how that evidence interacts with the substantive law adopted by the jurisdiction. All reputable legal systems subscribe to objectivity and fairness as guiding principles in their courts. Unfortunately, the Rules of Justice Court Procedure as endorsed by the Comment of the State Bar of Arizona on Petition to Adopt Justice Court Rules of Civil Procedure (“the Proposed Rules”) abandon these guiding principles and try to take the blindfold from Lady Justice.

The Proposed Rules explicitly look to the status of a class of plaintiffs and impose additional requirements on this class of plaintiffs. See, e.g., Proposed Rules 110 (requiring assignees of debt to allege the “identity of the original creditor, the date of default and the amount due as of the date of default”); and 121 (requiring debt collectors to disclose specific evidence in their initial disclosure statements). By targeting a specific class of plaintiffs before the Justice Courts of the State of Arizona, the Proposed Rules tend to weigh the resolution of disputes in favor of defendants in debt collection cases. These Proposed Rules tip the scales of Lady Justice by requiring her to take her blindfold off, examine the type of plaintiff before her, and determine the case accordingly.

The allegations in complaints and the evidence in disclosure statements should not vary based on the amount in controversy or the type of plaintiff seeking to obtain relief. Yet, the Proposed Rules impose exactly that weighted variation. If the amount in controversy exceeds the jurisdictional limit of the justice courts, then plaintiffs need not name the original creditor, disclose the date of default, or allege the amount due at default because the Arizona Rules of Civil Procedure do not require these allegations. In addition, even in justice courts, if the plaintiff is the original creditor, the date and amounts owed at default are not required in the complaint. The reason for these unfair differences is not self-evident or explained.

Decisions based on these Proposed Rules are subject to review in the Superior Court of Arizona. Judges of the Superior Court used to the Arizona Rules of Civil Procedure will be interpreting the Proposed Rules, so each departure from the familiar Arizona Rules of Civil Procedure will draw attention. The differences embodied in the Justice Court Rules of Civil Procedure will lead to confusion unless well thought-out and defended. The Proposed Rules targeting debt collectors have been well-argued but are lacking in reasonable support. In contrast, the committee’s recommended Justice Court Rules of Civil Procedure—before the interpolation of the State Bar of Arizona—were developed and proposed after a time-consuming process. Since the Superior Court’s decisions are not binding in any other case, any confusion the Proposed Rules create will remain for years. The peculiar interaction of the Justice and Superior Courts demands that the Proposed Rules be carefully scrutinized on practical and abstract levels.

If the legislature, vested with the power to make substantive law, determines that the courts—the entities symbolized by Lady Justice— must consider the status of plaintiffs appearing before them, then it is free to amend the laws of Arizona. If the legislature makes this determination after due deliberation, then it would likely apply to all Arizona courts equally and the courts could faithfully, uniformly, and fairly apply it. But that day has not come and attempting to place requirements on a specific class of plaintiffs in a specific class of courts under the guise of procedural rules violates fundamental principles of fairness and equality.

Though the blindfold has been stricken from Lady Justice’s face before, removing the blindfold has never yielded a favorable outcome. From the policies of the Roman Empire which outlawed Christianity in its infancy, to the unfairly weighted court systems of Nazi Germany and the Khmer Rouge, treating a class of plaintiffs as more or less worthy of justice never creates a system which is either just or laudable. By creating a system of rules which hinder the enforcement of the legal rights by a certain class of plaintiff just because it is politically expedient due to a shift in public opinion, the Proposed Rules take a step down a dangerous pathway toward a system in which any plaintiff who could be viewed as a villain and could lose his or her rights without a vote from the legislature.

If the courts of Arizona are willing to consider the status of plaintiffs in assessing requirements in a segment of its courts, they may decide that these requirements do not go far enough and impose additional requirements. Eventually, a reaction to these harsh requirements may push the pendulum back toward favoring creditors over debtors. When that occurs, the scales of justice degenerate into a child’s seesaw. Justice requires stability so that like cases are treated alike and the system metes out predictable results. The Proposed Rules do not encourage the stability necessary for justice and fairness to exist.

Therefore, I recommend that the Arizona Supreme Court reject the State Bar of Arizona’s recommendation that the Justice Court Rules of Civil Procedure include these requirements.

Sincerely,

James R. Vaughan

Sincerely,
Jennifer Nix (#026143)
Gurstel Chargo, PA
9320 East Raintree Drive
Scottsdale, AZ 85260
phone # 480-420-2232
fax # 480-420-2245


I manage the Arizona office of one of the largest collection law firms in Arizona, Gurstel Chargo, PA. Our firm in Arizona deals exclusively in creditors' rights and I practice in every court in the state with pro per litigants from all walks of life. It has been my experience that the majority of the litigants have equal access to information. The justices of the peace spend considerable time with pro per litigants during pretrial conferences to explain the relevant rules, and also point the litigants to places where they can find additional information if they have questions.

The purpose in establishing a separate set of rules of civil procedure was to simplify the rules for the unsophisticated litigants that represent themselves. The rules proposed by the committee, however, have created a separate distinct set of rules for the justice courts which differ significantly from the rules of civil procedure currently in effect. In essence, the committee has created a different standard of proof depending on whether the litigant is in justice court or superior court and whether the case was brought by an original creditor of a debt owed, an assigned creditor of a debt owed, or another type of plaintiff. It is not uncommon for a pro per to have more than one case pending against them in the justice courts and another case pending against them in the superior courts. Creating a separate standard of proof for similar cases based solely on the type of plaintiff involved will lead only to confusion amongst the pro per litigants in the Arizona courts.

The proposed rules did nothing to simplify the rules. The rules proposed create two separate standards of proof in civil court cases which are distinctly different. The rules as proposed have created a different standard of proof in justice court cases which requires a plaintiff whose cause of action is based on an assigned debt than which is currently in place in superior court. This different standard of proof will lead to confusion amongst pro per litigants.

Sarah De La Rosa, AZ Bar No. 021912
ZWICKER & ASSOCIATES, P.C.
1225 W. Washington Street, Suite 110
Tempe, AZ 85281
Tele: (877) 236-4042
Fax: (602) 275-0635
[email protected]

I have reviewed the proposed new justice court rules of civil procedure. I have concerns regarding some of these changes and whether the rules have accomplished what the Arizona Supreme Court has directed.

This year will mark my tenth year as a member of the State Bar. For the last seven years, I have practiced statewide in the area of debt collection and have represented both original creditors and debt buyers. During that time, I have dealt with hundreds of pro per defendants.

I agree that the general public would benefit from a simplified version of the civil rules of procedure. Currently, the county courts assist the public in understanding the procedural aspects of the legal process by providing basic instructions and forms. Instead of creating new rules, a better approach would be to simply explain the current rules in a way that a person would easily understand them. Setting new requirements on what is contained in a complaint, or creating new disclosure requirements and/or deadlines will most likely not affect a defendant's understanding of the legal process.

Another alternative would be to create a more relaxed version of the rules such as those contained in the rules for arbitration in Superior Court, more specifically Rules 72 through 76 of the Arizona Rules of Civil Procedure. Instead of creating new requirements, or focusing on one type of Plaintiff, the rules work to simplify the current procedures and allow for a more laid-back way of handling claims while reducing litigation costs. In an arbitration setting, a defendant is allowed to present evidence and testimony in a more relaxed setting which allows pro per defendants to defend themselves without the need for extensive knowledge of the Civil Rules or Rules of Evidence.
I do not feel the current proposed rules will accomplish the goals set forth by the Supreme Court. It will not reduce costs, nor do I expect it to make case flow more efficient for the justice courts. Frankly, I think the rules should be left alone. But if the Supreme Court insists on new rules, they should instead look to the Rules of Arbitration as an example of how to simply the legal process in justice court.

Petition to Adopt Justice Court Rules of Civil Procedure

Petitioner: Paul Julien, Chair
Committee on Civil Rules of Procedure for Limited Jurisdiction Courts
Mailing address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
Phone: (602) 452-3021 / (602) 452-3242
Fax: (602) 452-3480
E-mail: [email protected] / [email protected]
State Bar number: 011250

Petitioner is filing this amended rule petition and a revised version of the proposed Justice Court Rules of Civil Procedure following the initial comment period and pursuant to the Court's Order dated January 13, 2012.

John A. Furlong, Bar No. 018356
General Counsel
State Bar of Arizona
4201 N. 24th Street, Suite 100
Phoenix, Arizona 85016-6266
602.252.4804
[email protected]

Ellen Sue Katz, AZ Bar No. 012214
William E. Morris Institute for Justice
202 East McDowell Road, Suite 257
Phoenix, Arizona 85004
(602) 252-3432
(602) 257-8138 (fax)
[email protected]

Anne Segal, JD., PhD
Justice of the Peace, Precinct One
Pima County
Tucson Consolidated Courts
520 -724-3505

To the Honorable Justices of the Arizona Supreme Court:

Please consider my appreciation and respect for the efforts performed by the subcommittee members for the revision of the Arizona Rules of Civil Procedure for the Courts of Limited Jurisdiction. Nevertheless, I still believe that the proposed civil rule changes do not clarify the process for the unrepresented litigant and remain overly advantageous to the trained litigator. While the revised rules may better guide the sequence of the procedures, the application, interpretation and utilization of the process is only readily understood by attorneys. I ask the justices to implement a RCiP.LJC Committee recommendation and appoint a new subcommittee to write protocol standards for alternative dispute resolution (ADR) procedures for the courts of limited jurisdiction. While the process may not be mandatory for all cases, participation should be required if the assignment judge orders ADR. The procedures and forms should be standard throughout the state.

Mediation: I recently initiated a pilot mediation process for my precinct, Pima County Judicial Precinct One for disputes between $2,500.00 and $10,000.00. As a member of the Tucson Consolidated Courts, the court’s Presiding Judge Keith Bee approved the pilot project. Furthermore, Pima County Superior Court Presiding Judge Sally Simmons also reviewed the proposal, the protocol and forms.

Culling the best practices from many Arizona counties, the mediation process is encouragingly successful. Since March 2012, a volunteer attorney-mediator conducted 55 mediation conferences and amicably resolved 16 cases. Fourteen cases were continued for an additional mediation hearing. Seven cases settled before the mediation conference and it is reasonable to presume that the hearing encouraged resolution. In 11 cases one party failed to appear. By prior written notice to the parties, the failure to appear resulted in either the Court thereinafter granting dismissal (Plaintiff failed to appear) or judgment on the pleadings.(Defendant failed to appear). If a Debtor Defendant failed to appear for the scheduled Mediation, the appearing Plaintiff Creditor could move for Judgment, which was then presented to this judge for signature. Only seven cases were set for trial. Eighty-seven percent of the cases were during resolved the three month pilot project.

Justification: Superior court rules mandate ADR. The failure to direct the same process in justice court appears inequitable as well as inefficient. Defendants pay the expense of filing an answer because they expect “a day in court.” While it may be unfortunate that television has over-dramatized our judicial system, TV also creates the perception of our accessibility. For a defendant to file the answer and then to receive a court order granting the Plaintiff’s Motion for Summary Judgment only mystifies the process and frustrates litigants.

Moreover, since pro se litigants are held to the standard of an attorney, in that they must try their case pursuant to rules of court and evidence, often against a represented opponent, why not allow them the prior chance to informally present their case before a mediator? Settling cases using a volunteer mediator frees up judicial resources, provides litigants their time to be heard, and often results in the parties crafting agreements unavailable to a trial judge.

Protocol: Mediation is scheduled within 45 days of the filing of an answer to the complaint. If a mediation agreement is reached, the case is placed on an inactive calendar for the implementation and duration of the mediation agreement. The case is thereafter dismissed if no further motions are filed by a specified date.
Seventy percent of the mediated disputes were debt collection claims. However, the quickset to mediation only delayed, but did not deny, the costly and time-consuming Summary Judgment or Judgment on the Pleadings motion practice. Even if in the answer the Defendant admits owing the debt, but cannot afford to pay it, the mediation process facilitates resolution. In collection cases, the mediated settlement typically results in a payment plan, a more efficient resolution than a court-ordered lump sum judgment with the creditor then left to negotiate a payment plan with the debtor or execute on the judgment via garnishment or asset seizure. To accommodate attorneys, out-of-county counsel appear telephonically by providing a toll-free number to the mediator.

Resources for Volunteer Mediators: One objection that emerged was the lack of available mediators. In Pima County, the protocol provides that the mediators be volunteer attorneys. Ten attorneys responded to one notice in the Pima County Bar Association newsletter. According to Cochise County officials, their volunteer, non-attorney trained “neutrals” serve for years. In Dreamy Draw, law students are volunteer mediators. Moreover, following the mandate of ADR in superior court, a mediator rotation can also be an appropriate pro bono assignment for the local bar.

Examples: The following are only a few examples of recent successful mediation conferences:

A woman sued a business that had incorrectly calculated her deductions for taxes and she had to pay more than what was withheld. During the mediation, the Plaintiff accepted the business’ offer to repay the cost of the preparation of the return and any fees for being delinquent in the payment of the taxes. She agreed that the business was not responsible for paying her actual additional taxes. The complexity of establishing the liability and proving the loss would be complicated and heavy with evidentiary issues. The use of mediation permitted open discussion and appropriate resolution.

In a typical debt collection scenario, the creditor plaintiff sued the defendant for $3,929.00 on a 2009 closed credit card account. The plaintiff agreed that the 28% interest accruing from the date of the discharge of the debt substantially increased the original obligation. The defendant acknowledged he owed the debt, but could not pay it. The parties’ mediation provided for a stipulated judgment of $2,900.00. The mediation contract set payments at $200.00 per month at a fixed interest rate of 4.2% and the parties agreed that the judgment was not to be recorded or garnished as long as the monthly payments were made. While plaintiff’s counsel traditionally obtains summary judgment and thereinafter garnishes the wages of the defendant, the mediation hearing enabled the parties to work together for a mutually satisfactory settlement.

One concern of the Committee was whether the requirements of Arizona Rule of Civil Procedure 11 are met if the contents of the complaint or answer are non-advesarial. The justice court exemplifies the importance of therapeutic, as well as legal , attention to personal disputes. For example, a visually impaired man filed a lawsuit. He had been a highly successful businessman before incurring a life-changing disability. He was unable to resolve a dispute with his bank and his debit card was repeatedly, but improperly, declined. Incensed and frustrated, he sued the bank. During mediation, the mediator helped him assess the low probability of success for his claim, but also indentified the PR issue for the bank. The bank agreed to pay the Plaintiff’s court costs and the gentleman felt that he had “his day in court.” Both were extremely mollified by the efficient and productive outcome of the case.

Conclusion: There are many more examples for your review. Please consider the importance of establishing this new subcommittee for justice court litigants. I am happy to provide any assistance that you feel may benefit the court and state. I am, of course, more than willing to serve on this Committee. I can provide this court with the forms we used for this court’s perusal. Please do not hesitate to contact me for any additional information or clarification.

Sincerely,

Anne Segal, J.D., PhD
Justice of the Peace
Tucson Consolidated Courts

Reply re: Amended Rule Petition

Petitioner: Paul Julien, Chair
Committee on Civil Rules of Procedure for Limited Jurisdiction Courts
Mailing address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
Phone: (602) 452-3021 / (602) 452-3242
Fax: (602) 452-3480
E-mail: [email protected] / [email protected]
State Bar number: 011250

Petitioner is filing this reply regarding the amended rule petition, and a revised version of the proposed Justice Court Rules of Civil Procedure, following the second comment period and pursuant to the Court's Order dated January 13, 2012.