BARRY R. GOLDMAN
500 N Estrella Pkwy #B2-441
Goodyear, AZ 85338
As the primary author of the Petition, the undersigned, individually, and as a member of the Petitioner, responds to recent comments by the State Bar and other persons regarding the instant Petition.
Firstly, to clarify, the State Bar erroneously indicates the number of the Petitioner's membership as "…approximately ninety process servers…". For the record, per the Administrator's report released to the Board of Directors of the Arizona Process Servers Association (APSA), current membership as of this date is 143 dues paying members.
The undersigned appreciates the opportunity to respond to the State Bar's concerns, and shall do so as follows:
I. “A PERSON OF SUITABLE AGE AND DISCRETION” VERSUS A PERSON “WHO STATED OR APPEARED THAT HE OR SHE WAS AT LEAST 15 YEARS OF AGE”
Regarding the State Bar's concern that the Petition "seeks to redefine the competency requirements" of a person who may accept service, the undersigned believes this perception to be in error. While there is no dispute that the term, "someone of suitable age and discretion" is a "…patently subjective analysis…", APSA has found that there is a statewide need for a "concrete" definition of a person of suitable age and discretion. Arizona currently lacks such a definition and the Petition merely seeks to set forth such a definition in rulemaking to provide direction to the Process Server and other persons authorized to serve legal process.
Neither the undersigned nor the APSA Board has not found a "substantial body of case law" to clarify what "suitable age and discretion" means in the context of service within Arizona, and accordingly believes the issue is one of statewide importance.
While the State Bar states that practitioners (attorneys) have not seen issues arising out of the substituted service of process, individual process servers have. Complaints against Process Servers are resolved before the Presiding Judge of the Superior Court in each county (per ACJA §7-204). Most complaints come to the attention of the courts from individuals, i.e.: parties in pro per. The lack of information on such complaints emanating from practitioners is irrelevant. Numerous complaints have been either dismissed or resolved at the local level, without the need or assistance of "Arizona practitioners". An informal survey of such complaints indicates that the majority have been filed for "unprofessional conduct", with several, notably having been filed for performing substituted service on a minor.
While there is an acknowledgment that service may currently be made upon a person of "suitable age and discretion", it should be recognized that certain issues have occurred in Arizona which Petitioner believes necessitate a need for a specific direction from the Supreme Court under the Rules. Petitioner, in the interest of the courts and public, submitted the Petition in the hope of minimizing the issuance of complaints of "unprofessional conduct", and establishing firm direction under the Rules of Civil Procedure, rather than the undefined and nebulous, "suitable age and discretion".
A total of 19 other states have established hard and fast rules or statutes indicating what is considered the minimum "suitable age" of a person (i.e.: California, Colorado, Idaho, Iowa, Pennsylvania:18 years; Mississippi, Texas, Virginia, West Virginia: 16 years; Florida, Missouri, New Mexico, New York, Oklahoma: 15 years; New Jersey, Oregon, South Dakota, Wisconsin, Wyoming:14 years; Illinois: 13 years. Texas does not allow a substitute service without a court order.) Arizona is one of the states which does not define "suitable age" of a person with whom legal process may be left. Because of this lack of definition, service of process within Arizona lacks consistency throughout the state. Petitioner has submitted the Petition to address such issues of inconsistency.
While APSA understands the concerns of the State Bar, a modification to the proposed language has been discussed and will be put forth in the official response of APSA in a matter of days. Such would call for defining the minimum age of a person of "suitable age and discretion" to be at least one “who stated or appeared that he or she was at least 15 years of age”. The undersigned believes that combining the current language with a modification of the proposed language would actually provide a more objective standard for service of process.
The last thing that Petitioner and the undersigned would like to see is a deprivation of rights of the person served, nor a muddying of the waters or further uninvited litigation. The Petition was put forth in good faith in the hope that a certain clarity would be established.
The State Bar's concern that "…the proposed amendment requires the process server to engage in what might be extensive and unwelcome communication with adolescent children regarding 'the general nature of the legal process,' setting the stage for a variety of complaints or worse" is believed to be unfounded. Any concern the State Bar would have over the "nature and quality of the instruction provided" is a non-issue.
Currently, in order to determine if a person is of "suitable age and discretion", certain conversation must take place between the Process Server and such person with whom the legal process may be left. This may be as simple as advising the person with whom the legal documents are being left that the documents are related to a lawsuit and the defendant should be given the documents, then ascertaining their response for understanding of the import of such documents. At no time is the proposed language intended to be an unwarranted intrusion into a person's privacy, nor anything more than advising the person that the documents are legal process and of their importance. Thus, informing a person of the general nature of the legal process is intended to be something simple and straightforward. No "Miranda Warning" is required nor intended.
As to any concerns the State Bar or others may have in ascertaining the age of the person with whom the legal process is left, many Process Servers, the undersigned included, utilize notes on their work sheet which indicates the physical description of the person with whom the legal process was left (sex, race, age, height, weight, hair, eyes, glasses). There are times when as Process Servers, we may directly ask the person contacted their age, so that such may be noted accordingly. Obtaining and noting this information further protects the Process Server, attorney and client from claims of non-service, and frivolous motions to vacate a default judgment.
II. SUBSTITUTE SERVICE
A. Service upon Individuals Residing in Gated Communities
Currently, there are numerous gated communities in Arizona. While the Petitioner recognizes the property rights of individuals who choose to reside in such communities, the Petition is meant to address the issue of the courts and litigants having to go to excess lengths to accomplish service of legal process. Although Rule 4.1(m) has provided the alternate means of service which may be necessary under circumstances where the defendant has made him/her self unavailable, the burden placed on the litigant is one which may be undue and cause for additional expense for service of process.
The Petition addresses the guard (gatekeeper) acting in the capacity as an agent of the homeowner/defendant. Under the circumstances addressed in the Petition, the guard is retained or employed by the homeowners association (HOA), who is acting on behalf of the homeowner in setting forth a policy of denying access to the property to even attempt service. Accordingly, in such deed restricted communities, as the gatekeeper is denying access on behalf of the homeowner, the gatekeeper thus controls who may enter and who may not. This creates an artificial environment of privilege and an exclusion zone, wherein the homeowner is essentially immune from service of legal process.
Thus, upon a denial of entry, the Process Server must render a declaration/affidavit to that effect, and present it to the client, who then must either directly (in pro per) or through counsel, file a motion under ARCP Rule 4.1(m), increasing the time to serve the person, and the litigant's expenses related to service of process.
While the State Bar references McAuliffe, et al, the undersigned reiterates from Petitioner's original Petition:
Further, Bein v. Brechtel-Jochim Group, Inc. [(1992) 6 Cal.App.4th 1387, 8 Cal.Rptr.2d 351] addresses the issue (in California) with regard to service of process where the person controlling access to the private community does not permit entry for the service of process. In its decision, the Court said, "Litigants have the right to choose their abodes; they do not have the right to control who may sue or serve them by denying them physical access." We believe the same is true for litigants in Arizona, as well.
The changes sought to allow service upon a guard at a gated community are sought to expedite service of process, and do so with minimal cost to the litigant.
Currently, Rule 4.1(m) provides no certainty of the issuance of an Order, nor does it likewise cap the expense that the litigant must entertain to accomplish service of process. As to the due process rights of residents of such communities, as the HOA is an agent of the homeowner, and the guard is also by extension an agent of the homeowner, it is a logical conclusion that the exclusion of Process Servers and others authorized to serve legal process is by choice of the homeowner, and not by random act or occurrence. Thus, it would be incumbent upon the homeowner to allow access to such community to ensure their due process rights are not infringed by their agent.
The substituted service rule proposed in the Petition would only come into effect if and when the Process Server is denied access to the community for the specific purpose of service of process. If the Process Server is allowed access and no service is made at the residence, service upon the guard may not be made, as the guard has allowed access.
Again, as to informing the guard of the general nature of the legal process, such a common sense act when serving legal process should be recognized and appreciated, rather than leaving the papers without explanation. Again, informing a person of the general nature of the legal process is intended to be something simple and straightforward.
B. Service upon an Individual at the Individual’s Usual Place of Business or Usual Mailing Address
Currently, there are numerous instances where the service of legal process must be done at a person's place of business or "usual mailing address". As Process Servers, we have found that a person may have a residence address which is unknown, but their work location or place where they receive mail is known. Sometimes, a litigant is able to obtain an Order under ARCP Rule 4.1(m), however, as stated previously, not without additional expense and effort.
Other states permit service at a person's place of employment. Arizona does not restrict such service, so long as such is personal service, excepting where a landowner or tenant excludes a Process Server or other person authorized to serve legal process under the trespass statutes.
The State Bar's contention that substituted service under the proposed changes at a person's place of employment "fails to adequately protect the due process rights of the person to be served" conflicts with the existing rule, (Rule 5(c)(2)(B)(i)), which states that service may be made by leaving the legal process "…at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office…". The Petition addresses substitute service at a place of business not by leaving the legal process "in a conspicuous place in the office", but by actually delivering the documents to a person "apparently in charge", and thereafter mailing said documents. Equal concern should be given to the rights of the person served before and after appearance.
The State Bar's concern about service made at a person's “usual mailing address” specifically is intended to address the problem of defendants who utilize Commercial Mail Receiving Agencies (CMRA's). Accordingly, Petitioner shall submit a more specific definition of the term, "usual mailing address".
III. SERVICE OF DOCUMENTS COMPELLING CONDUCT WHERE THE FAILURE TO COMPLY MAY SUBJECT AN INDIVIDUAL TO A CIVIL ARREST WARRANT OR CONTEMPT OF COURT
The petition seeks to clarify the requirement that certain documents, such as an order or subpoena where failure to comply may cause a court to issue an arrest warrant, or an order to show cause where the court may issue an order of contempt, be personally served on the person. APSA has been informed that there have been instances where personal service of the legal process (actual notice) has not been effected, and warrant(s) issued for the arrest of person(s) who did not appear. While the proposed rule may be redundant in light of Rule 64.1(b), the undersigned quotes from Mr. Janati, the representative of the "Arizona Association (of) Certified Process Servers", who claims that,
"The law currently allows substitute service for such documents, and we find no substantial reason to alter it."
As Mr. Janati represents his association, and has put forth his association's policies and beliefs, the undersigned would submit there is definitely a need for clarification in the rules, especially and specifically to address this issue.
In closing, again, the undersigned, while the primary author of the Petition, submits this response individually and as a member of APSA. I support APSA's efforts in the proposed rule changes, and would urge their adoption by the Supreme Court.