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Last Post 21 Jul 2014 12:00 PM by  James Kloss
R-13-0044 Petition to Amend Rule 67, Arizona Rules of Civil Procedure
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krista.mccarthy
Posts:

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

Re: Petition R-13-0044

Dear Justices,

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

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

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

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

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

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

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

Thank you.

Krista T. McCarthy
steveleshner
Posts:

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

Dear Justices,

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

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

Bleonard
Posts:

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

Dear Justices:

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

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

Justice is blind.

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

Thank you for your consideration.

/s/ Brian T. Leonard
pmendoza
Posts:

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

Dear Justices,

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

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

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

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

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

Dear Justices,

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

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

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

Respectfully submitted,
Michelle Johnson
ESQSHAPIRO
Posts:

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

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

/s/ Eric Shapiro
abneydla
Posts:

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

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

Justices of the Arizona Supreme Court:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There must be equal access to justice for all, not just for the indigent and the highly prosperous. The cost-bond rules undermine and defeat that principle. They unconstitutionally and unfairly discriminated in 1901 and—although they are now more sophisticated—they still unconstitutionally and unfairly discriminate. They have no place in a judicial system dedicated to equal access to justice for all. This Court should eliminate them from our judicial system once and for all.
howardlaw49
Posts:

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02 Mar 2014 08:27 AM
Howard Snyder
Snyder and Wenner, PC
2200 E. Camelback Rd., Ste 213
Phoenix, AZ 85016
howardlaw49@cox.net

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

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

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

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

Howard Snyder
ivanhannel
Posts:

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

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

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

Respectfully,

/s/ Ivan Hannel
kcarman
Posts:

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

Dear Justices,

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

/s/Krista Carman
ecrowley
Posts:

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


To the Arizona Supreme Court:

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

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

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

khammond
Posts:

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

Dear Justices:

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

Kent Hammond
kyleisrael
Posts:

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


Dear Justices,

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

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

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

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

Thank you for your attention.

cmuchmore
Posts:

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

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

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


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

dzanes
Posts:

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

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

I have seen the current rule used by the defense in personal injury claims to make our Court system inaccessible to clients not only indigent clients, but also middle income clients. When a Plaintiff pursuing a personal injury claim is ordered under the current rule to post a $10,000 or greater cost bond, their case typically is dismissed because of their inability to post this bond. This is always horribly unfair, but it is truly unjust when all parties agree that the defendant is liable but are simply fighting over how much money should be paid. The rule as it currently stands can easily be abused and needs to be changed.
djadelman
Posts:

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05 Mar 2014 07:36 AM
Daniel Adelman
Adelman German, PLC
8245 N. 85th Way
Scottsdale, AZ 85258
480-607-9166
480-607-9031
Danny@AdelmanGerman.com
011368

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

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

I firmly support the Petition.

Sincerely,

Danny Adelman
ecrowley
Posts:

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

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

Marco Mercaldo
Mercaldo Law Firm
ecrowley
Posts:

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

Dear Justices,

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

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

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

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

/s/Rodolfo A Resendez Jr, Esq
tshah
Posts:

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

Dear Justices,

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

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

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

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

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

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

Regards,
Tanveer A. Shah, Esq.
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