Search 

Azcourts.gov

Arizona Judicial Branch



FAQ

Register       Login

ATTENTION: This site has been recently moved. If you had an account on our old forum site, you will have to register a new account here in order to be able to post replies.

 

NEW! The Court acted on many pending rule petitions at its August 29, 2017 Rules Agenda.  

Click on the Amendments from Recent Rules Agendas link below to go directly to the amendments and orders for each one.

Message from the Chief Justice

Current Arizona Rules 

Amendments from Recent Rule Agendas

Rule Amendments (2006 to present) 

Advisory Committee on Rules of Evidence


Pending Rules List

         Proposed Local Rules
                 Welcome!
This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
PrevPrev Go to previous topic
NextNext Go to next topic
Last Post 30 Jun 2014 05:32 PM by  ecrowley
R-14-0004 Rule 111 Rules of Arizona Supreme Court, Rule 28 AZ Rules of Civil Appellate Procedure, Rule 31.24 AZ Rules of Criminal Procedure
 16 Replies
Sort:
Topic is locked
Author Messages
SAgne
Posts:

--
09 Jan 2014 04:55 PM
    R-14-0004

    Petition to Amend Rule 111, Ariz. R. Sup. Ct., Rule 28, ARCAP, and Rule 31.24, Ariz. R. Crim. P.

    Would permit citation for persuasive value of unpublished memorandum decisions and unpublished decisions from other jurisdictions

    Petitioners:
    Barry D. Halpern (#005441)
    Sara J. Agne (#026950)
    Joy L. Isaacs (#030693)
    SNELL & WILMER L.L.P.
    One Arizona Center
    400 E. Van Buren
    Phoenix, AZ 85004-2202
    Phone: (602) 382-6000
    Fax: (602) 382-6070
    bhalpern@swlaw.com
    sagne@swlaw.com
    jisaacs@swlaw.com


    Filed January 9, 2014

    Comments due May 20, 2014.

    ADOPTED as modified, effective January 1, 2015.
    Attachments
    lincolncombs
    Posts:

    --
    31 Mar 2014 06:08 PM
    Lincoln Combs
    602-530-8022 | lincoln.combs@gknet.com
    Gallagher & Kennedy
    2575 E. Camelback Road, Suite 1100
    Phoenix, AZ 85016-9225
    Main: 602-530-8000 | www.gknet.com
    SBA #025080

    I wholeheartedly endorse the proposed rule change. There is no reason in the modern era of electronic research not to be able to cite to legal authority that may be directly on point and helpful to the parties and court solely because it is not published, binding authority. Our Court of Appeals' interpretations of ARCAP 28(c) as preventing citations to even "unpublished" district court rulings highlights the arbitrariness of the current scheme, since the decision to publish district court decisions is made by the reporting service and not the court. The proposed rule change strikes the correct balance between allowing reasonable use of helpful, persuasive legal analysis while ensuring that it does not become conflated with binding or precedential authority. This rule change will further the development of the common law and reflects the trend nationally and in our federal courts in this jurisdiction towards more permissive use of unpublished rulings. The Petition should be adopted in full.

    abneydla
    Posts:

    --
    01 Apr 2014 07:21 PM
    David L. Abney, Esq.
    State Bar No. 009001
    KNAPP & ROBERTS, P.C.
    The Historic Thompson House
    850 North Second Avenue
    Phoenix, Arizona 85003
    (480) 991-7677
    abney@krattorneys.com

    The proposed rule is a rickety half-measure. There is no need for that. At the start of 2007, the federal court system adopted Federal Rule of Appellate Procedure 32.1, which provides that:

    FRAP 32.1. CITING JUDICIAL DISPOSITIONS

    (a) Citation Permitted.

    A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;

    (i) designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like; and

    (ii) issued on or after January 1, 2007.

    (b) Copies Required.

    If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited. (New 12/1/06)

    “As promulgated, Rule 32.1 sets forth a compromise position between those who wanted to keep strict no-citation rules in place and those who wanted to make unpublished opinions freely citeable.” Charles J. Stiegler, The Precedential Effect of Unpublished Judicial Opinions under Louisiana Law, 59 Loy. L, Rev. 535, 543 (Fall 2013).

    The efficient, respected federal appellate system has not crumbled because of Rule 32.1, which has been in place since the end of 2006. After adoption of Rule 32.1, the “only real difference between published and unpublished opinions is that unpublished opinions do not have precedential effect.” Brian Soucek, Copy-Paste Precedent, 12 J. App. Prac. & Process 153, 155 (Fall 2012).

    In 2001, the American Bar Association’s House of Delegates urged federal appellate courts to “make their unpublished opinions available through print or electronic publications [and] publicly accessible media sites,” as well as to “permit citation to relevant unpublished opinions.” American Bar Association, Sections of Litigation, Criminal Justice, Tort and Insurance Practice and Senior Lawyers Division, Report to the House of Delegates, Resolution No. 01A115 (Aug. 1, 2001).

    After years of study and debate, the federal court system finally acted on the recommendation of the American Bar Association and other authorities, and adopted Federal Rule of Appellate Procedure 32.1. David R. Cleveland, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, 11 J. App. Prac. & Process 19, 24(Spring 2010) (“Federal Rule of Appellate Procedure 32.1 represents the culmination of a nearly twenty-year process of removing the unpublished-opinion gag rule from the federal bar. . . . [Rule 32.1] moved through an arduous rulemaking process.”); Patrick J. Schiltz, Much Ado about Little: Explaining the Sturm Und Drang over the Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. 1429, 1429-30 (2005) (“On the day that I became Reporter, the issue of unpublished opinions was the most controversial issue on the Advisory Committee's agenda. Eight years later, the issue of unpublished opinions continues to be the most controversial issue on the Advisory Committee’s agenda. I have devoted more attention to the unpublished-opinions issue than to all of the other issues the Advisory Committee has faced—combined.”); Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 23 (2005) (“This seemingly modest proposal—in essence, a proposal that someone appearing before a federal court may remind the court of its own words—is extraordinarily controversial. . . . Only once before in the history of federal rulemaking has a proposal attracted more comments.”).

    See also Scott E. Gant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1, 47 Boston College L. Rev. 705 (2006); Bryan Wright, But What Will They Do Without Unpublished Opinions?: Some Alternatives for Dealing with the Ninth Circuit's Massive Caseload Post F.R.A.P. 32.1, 7 Nev. L.J. 239, 252 (2006); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667 (2005); Jessie Allen, Just Words? The Effects of No-Citation Rules in Federal Courts of Appeals, 29 Vt. L. Rev. 555 (2005); J. Lyn Entrikin Goering, Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 1 Seton Hall Cir. Rev. 27 (2005); Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. App. Prac. & Process 349 (2004); Lawrence J. Fox, Those Unpublished Opinions: An Appropriate Expedience or an Abdication of Responsibility?, 32 Hofstra L. Rev. 1215 (2004); Martha Dragich Pearson, Citation of Unpublished Opinions as Precedent, 55 Hastings L.J. 1235 (2004); Lauren Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940 (1989); William L. Reynolds & William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573 (1981); William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 Duke L.J. 807 (1979); William L. Reynolds & William M. Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978).

    Arizona should simply adopt and adapt Federal Rule of Appellate Procedure 32.1. After all, Rule 32.1 is simple, clear, and direct. It is the result of an extensive process of study, review, and debate. And, most important, it has stood the test of time.

    The only issue is whether any precedential value should be accorded to federal and state judicial opinions, orders, judgments, or other written dispositions designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like. This Court can handle that in a short sentence indicating that they are not precedent.

    See Sarah E. Ricks, A Modest Proposal for Regulating Unpublished, Non-Precedential Federal Appellate Opinions while Courts and Litigants Adapt to Federal Rule of Appellate Procedure 32.1, 9 J. App. Prac. & Process 17 (Spring 2007); Amy E. Sloan, If You Can't Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895, 906-09 (2008) (“Nonprecedential opinions are here to stay in the federal appellate courts for the foreseeable future.”).

    The proposed rule as presently formulated is an awkward and ungainly half-measure. It should be amended to conform to Federal Rule of Appellate Procedure 32.1—with minor changes to reflect that this it to be an Arizona rule—and then be adopted in that amended form. Why should Arizona buy a patched-up, rickety Model T when a road-tested, like-new 2007 Lincoln Continental is waiting on the showroom floor?
    gtrachtenberg
    Posts:

    --
    02 Apr 2014 04:30 PM
    Geoffrey M. Trachtenberg (019338)
    LEVENBAUM TRACHTENBERG, PLC
    362 North 3rd Avenue
    Phoenix, Arizona 85003
    Phone (602) 271-0183
    Email: gt@LTinjurylaw.com
    Attachments
    lincolncombs
    Posts:

    --
    02 Apr 2014 07:22 PM
    Lincoln Combs
    602-530-8022 | lincoln.combs@gknet.com
    Gallagher & Kennedy
    2575 E. Camelback Road, Suite 1100
    Phoenix, AZ 85016-9225
    Main: 602-530-8000 | www.gknet.com
    SBA #025080

    I approve Mr. Trachtenberg's proposed amendments to the Petition, and agree with him that they help to clarify and further the purpose of the original Petition. I support this Petition as amended for the reasons set forth in my prior comment.

    mmiller
    Posts:

    --
    09 May 2014 12:04 PM
    Michael Miller
    Virginia Kelly
    Arizona Court of Appeals, Division II
    400 W. Congress St., Ste. 200
    Tucson, Az 85701
    (520) 628-6958
    miller@appeals2.az.gov
    Charles Harrington
    Pima County Superior Court
    110 W. Congress St.
    Tucson, AZ 85701
    (520) 724-4200


    Attachments
    AZStateBar
    Posts:

    --
    09 May 2014 12:33 PM
    John A. Furlong, Bar No. 018356
    General Counsel, State Bar of Arizona
    4201 N. 24th St., Suite 100
    Phoenix, AZ 85016
    Telephone: (602)340-7236
    Fax: (602)271-4930
    patricia.seguin@staff.azbar.org
    Attachments
    Eckerstrom
    Posts:

    --
    14 May 2014 05:01 PM
    Peter J. Eckerstrom
    Joseph W. Howard
    Philip G. Espinosa
    Garye L. Vasquez
    400 W. Congress St.
    Tucson, AZ 85701-1374
    (520) 628-6950
    FAX: (520) 770-3560
    eckerstrom@appeals2.az.gov

    Randall M. Howe
    1501 W. Washington St.
    Phoenix, AZ 85007-3329
    (602) 542-3493
    FAX: (602) 542-7801
    rhowe@appeals.az.gov
    Attachments
    jgemmill
    Posts:

    --
    14 May 2014 05:38 PM
    John C. Gemmill, Patricia K. Norris, Peter B. Swann
    Judges, Division One
    Arizona Court of Appeals
    1501 W. Washington
    Phoenix, AZ 85007

    May 14, 2014

    Rule Change Petition R-14-0004

    These comments in support of rule change petition R-14-0004 are submitted by John Gemmill, Patricia Norris, and Peter Swann, Judges, Division One, Arizona Court of Appeals.

    Six years ago, John Gemmill and Patricia Norris commented publicly in support of rule change petition R-07-0021, which would have allowed limited citation of this court’s memorandum decisions as potentially persuasive but not as precedent. Peter Swann transitioned from the superior court to the court of appeals that same year and has shared the same view. We respectfully submit that the time has come for the current, restrictive rules to be amended. Arizona should allow limited citation of memorandum decisions when there is no published opinion on point and should also permit citation of unpublished decisions from other jurisdictions that allow such citation. Such decisions should be considered potentially persuasive but not precedential.

    We therefore support rule change petition R-14-0004 and the State Bar of Arizona comments submitted by General Counsel John Furlong. Also, it is important that the amended rules confirm that there is no intention to extend the standard of care for attorneys to reviewing, analyzing, and citing memorandum decisions of this court or other unpublished decisions.

    Thank you for your consideration of these comments.
    thudson
    Posts:

    --
    15 May 2014 02:58 PM
    Thomas L. Hudson
    Osborn Maledon PA
    2929 N. Central Ave., Ste. 2100
    Phoenix, AZ 85012-2765
    thudson@omlaw.com

    The time has come for this Court—like numerous other courts—to modernize its citation rules, and adopt the proposed rule changes as set forth in the State Bar’s comment.

    The reality is, sometimes an issue is only addressed in a memorandum decision. For example, Markham Contracting Co. v. First American Title Ins., 2013 WL 3828690 * 13-14 ¶¶ 52-58 (Ariz. App. 2013) addressed whether a party is entitled to post-judgment interest on an award of prejudgment interest. In that case, the Court of Appeals expressly observed that “no reported Arizona case expressly resolves the issue,” but then proceeded to resolve the issue in an unpublished memorandum decision. Markham, 2013 WL 3828690 * 14 ¶ 55. There is no sound reason why this decision should not be cited the next time this same issue arises.

    Arizona’s current rule is also nonsensical as applied to federal decisions. As Lincoln Combs and Geoff Trachtenberg noted, Thomson Reuters, not a judge, typically decides whether to “publish” a federal district court decision. Moreover, since 2007, federal appellate unpublished decisions have been citeable in all federal courts. If such persuasive authority is good enough for the federal courts, it should be good enough for Arizona courts. The body of law a party may bring to a court’s attention should not depend on whether the action is filed in state or federal court.

    The thoughtful questions and concerns raised by Judges Miller, Kelly, and Harrington do not warrant further delay. The change to the citation rule in federal courts has convincingly demonstrated that permitting citation to memorandum decisions does not result in the bad consequences invoked by those who opposed the change. As noted in David Abney’s comment, the issue of citing unpublished decisions has generated numerous studies, research, and scholarship. Action, not more study, is needed. The current rule does more harm than good.

    Accordingly, for these reasons, the reasons in my 2006 article (available at http://tinyurl.com/jwm7vc7), and the other reasons noted in the Petition and other supporting comments, the Court should modify Arizona’s citation rules as set forth in the State Bar comment.

    Thank you for considering these comments.
    josephatlaw
    Posts:

    --
    19 May 2014 12:48 PM
    Joseph D'Aguanno
    Harris Powers & Cunningham
    361 E. Coronado Road
    Phoenix, AZ 85004
    602.271.9344 (p)
    602.252.2099 (f)
    jdaguanno@hpc-lawyers.com
    AZ 020421

    Dear Justices:

    I approve Mr. Trachtenberg's proposed amendments since they help clarify and further the purpose of the original Petition. The original petition meant well, but was flawed. Conflation of the terms "unpublished" and "memorandum" would drive many Arizona lawyers crazy (which would be a catastrophe given the sad state of mental health care in Arizona).

    I also echo the comments of Judges John Gemmill, Patricia Norris, and Peter Swann who commented, in part:

    We respectfully submit that the time has come for the current, restrictive rules to be amended. Arizona should allow limited citation of memorandum decisions when there is no published opinion on point and should also permit citation of unpublished decisions from other jurisdictions that allow such citation. Such decisions should be considered potentially persuasive but not precedential.

    Thank you.

    /s/ Joseph D'Aguanno
    Frederick.Berry@azbar.org
    Posts:

    --
    19 May 2014 01:54 PM
    Frederick Curtis Berry, Jr.
    3101 N. Central Ave., Ste. 840
    Phoenix, AZ 85012-2679
    602-274-5700
    frederick.berry@azbar.org

    I oppose the petition. If a memorandum decision of the Court of Appeals is not worth publishing, it is not worth citation for any reason. Moreover, some of the unpublished decisions are just plain goofy.

    Litigation is already very expensive. If the universe of authorities (whether as precedent or persuasive) is expanded, so would be the cost of litigation. Some parties cannot afford to pay for such research by an attorney and hardly any unrepresented litigants can undertake the task themselves. Many lawyers don't know how to perform computer assisted research among unpublished decisions and do not pay for expensive computer assisted research tools.
    weaver1951
    Posts:

    --
    19 May 2014 07:24 PM
    American Academy of Appellate Lawyers
    9707 Key West Avenue, Suite 100
    Rockville, MD 20850
    240-404-6498

    By Thomas B. Weaver
    7700 Forsyth Boulevard, Suite 1800
    St. Louis, MO 63105
    314-621-5070

    The American Academy of Appellate Lawyers submits the attached comment in support of the Petition to Amend RULE 111, ARIZ. R. SUP. CT., RULE 28, ARCAP,
    AND RULE 31.24, ARIZ. R. CRIM. P. R. CRIM. P.
    Attachments
    domanico
    Posts:

    --
    20 May 2014 07:09 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 0003200)

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

    --
    20 May 2014 07:25 PM
    Lori J. Lefferts
    Pima County Public Defender
    DAVID J. EUCHNER, SB#021768
    EMAIL: David.Euchner@pima.gov
    33 N. Stone, 21st Floor, Tucson, Arizona 85701
    TEL: (520) 724-6800; FAX: (520) 770-4168
    Attachments
    ccornelio
    Posts:

    --
    04 Jun 2014 05:22 PM
    Hon. Carmine Cornelio
    Arizona Superior Court
    Pima County
    110 W. Congress Street
    Tucson, AZ 85701
    Phone: (520) 724-8301


    Attachments
    ecrowley
    Posts:

    --
    30 Jun 2014 05:32 PM
    Barry D. Halpern (#005441)
    bhalpern@swlaw.com
    Sara J. Agne (#026950)
    sagne@swlaw.com
    Joy L. Isaacs (#030693)
    jisaacs@swlaw.com
    SNELL & WILMER L.L.P.
    One Arizona Center
    400 E. Van Buren
    Phoenix, AZ 85004-2202
    Telephone: (602) 382-6000

    REPLY
    Attachments
    Topic is locked