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Last Post 31 Oct 2018 03:32 PM by  mmathes
R-18-0021 Petition to Adopt Rules of Small Claims Procedure & Modify Rule 101(b), Justice Court Rules of Civil Procedure
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mmathes
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Posts:3 New Member

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17 Jan 2018 12:30 PM
    Petitioner: Honorable C. Steven McMurry, Chair
    Committee on Improving Small Claims Case Processing
    Mailing Address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
    Phone: (602) 452-3966
    Fax: (602) 452-3480
    E-mail: mmathes@courts.az.gov

    Would enact new rules of procedure for small claims lawsuits in justice courts.

    Filed: January 10, 2018

    IT IS FURTHER ORDERED permitting Petitioner to file a third amended petition by May 24, 2019, and allowing public comments on the third amended petition until June 28, 2019.

    IT IS FURTHER ORDERED permitting Petitioner to file a reply, if any, by July 5, 2019.
    Attachments
    JudgeGeraldWilliams
    New Member
    Posts:1 New Member

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    02 Mar 2018 03:44 PM
    Gerald A. Williams
    Justice of the Peace
    Arizona Bar No. 018947
    North Valley Justice Court
    14264 West Tierra Buena Lane
    Surprise, AZ 85301
    (602) 372-2000
    GeraldWilliams@mcjc.maricopa.gov

    Objection to Some of the Proposed Small Claims Rules
    Attachments
    Adam Watters, Presiding Justice Pima Consolidated Justice Court
    New Member
    Posts:1 New Member

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    16 Mar 2018 01:35 PM
    Adam Watters
    Presiding Justice of the Pima County Consolidated Justice Court
    Tucson, Pima County
    awatters@jp.pima.gov
    (520) 724-3505
    State Bar 018184

    Background:
    In April 2016 the Arizona Case Processing Standards Steering Committee “brought to light” a problem involving the substantial underperformance in the time required to close the average small claims case relative to the adopted time standards. Subsequently, Administrative Order 2016-115 established the Committee on Improving Small Claims Case Processing. The Order reads in part that “The Court and justices of the peace handling these cases desire to review the rules of procedure applicable to the processing of small claims cases to identify any changes that may serve to reduce the time and expense to litigants in small claims cases.”
    Current time standards require that 98% of small claims filings be disposed of within 180 days. Statewide data indicates that only 77% meet the standard. Of the remaining 23% of cases, the majority remain open because the defendant was served but never filed an answer. There is not a provision in the Justice Court Civil Rules of Procedure to dismiss a small claims filing for lack of prosecution. Therefore, the courts must rely on the Civil Rules that provide for dismissal 11 months from the filing date. Under the current rules it is not possible for the courts to meet the adopted time standard.
    Instead of adopting the proposed Rules, a simple, straightforward solution to resolve the delay in processing small claims cases is to require that courts dismiss cases timely for failure to affect service and to impose a rule that allows for an earlier dismissal for lack of prosecution. The committee, however, has proposed numerous rules that only complicate the resolution of these cases, create significant case management inefficiencies and impose additional costs to the litigants as well as courts. Further, the proposed rules appear to undermine a basic precept promoting fairness that has become ingrained in our legal system for decades.

    Rule 7(a), Summons; Hearing Date
    The proposed rules require the court to set a hearing date at the time of filing. In FY2017 the Pima County Consolidated Justice Court (PCCJC) received 3,460 small claims filings. Only 11% (396) actually went to hearing. It makes no sense to calendar the remaining 89%. This is not only inefficient but contrary to effective case management. It will be extremely difficult to manage the calendar as cases terminate prior to hearing, which obviously involves the vast majority. This rule will increase hearings in our court from the current 1.5 per day to 14 per day.
    PCCJC utilizes nine volunteer hearing officers who conduct small claims hearings. These volunteers have only committed to 4-8 hours per month. This proposal will require numerous more volunteers or, if volunteers cannot be found, the court will have to utilize pro tem or regular judges; a cost for which this court has not budgeted. While recognizing the issue of “phantom” hearings will be most onerous on this consolidated Court, the fact is under the proposed Rules, the result will be the wastage of all Justice Courts time and resources.


    Rule 7(c), Time for Service
    Rule 113(i), Justice Court Rules of Civil Procedure, requires the plaintiff to serve the defendant within 120 days from filing. The Committee has proposed that service be effected within 20 days from filing but provides the plaintiff the ability to file for a 30-day extension and obtain a new summons for service if additional time is needed. This seems unrealistic and most likely will result in the majority of plaintiffs requesting an extension and incurring additional costs. It is an inconvenience for them as well as the court. The current process of 120 days allows sufficient time for service, does not allow for a continuance and disposes of the case well within the time standard.
    Statewide statistics reflect that the average age of cases with no proof of service is 755 days. Courts should be required to enforce the current rules and determine a means for identifying these cases at 120 days instead of creating an unrealistic deadline that almost mandates an extension request. In FY17 PCCJC terminated 38% of the filings for lack of service.

    Rule 9, Answer not Required and Rule 10(d) Counterclaim
    The proposed rule eliminates the required Answer. Filing of an answer is fundamental to due process. It ensures that the plaintiff is aware of the defenses the defendant will use at the hearing and leaves no room for surprise or ambush. This proposed rule will allow the defendant the ability to continue to raise defenses during the hearing.
    Likewise allowing the defendant to file a counterclaim 10 days before the hearing does not give the plaintiff time to prepare. Under current rules, the counterclaim is filed at the time of answer giving the plaintiff ample notice. This proposal flies in the face of the so-called “Zlakett” rules which dominate the Civil Rules of Procedure. For the past 30 years, every practitioner of the law in this State has learned about the need to disclose evidence and witnesses timely. This policy became known as the “Zlakett rule” and was strengthened and enforced primarily through Rule 26 of the Civil Rules of Procedure. The clear and stated intent of the policy is to avoid trial by ambush. Arizona does not allow a “Perry Mason” moment where a surprise witness appears and disgorges evidence at trial that had not been disclosed timely to the opposition.
    The Zlakett rules level the playing field and permit each side to prepare for the case – and perhaps to resolve the matter upon disclosure of its weakness or the opponent’s strengths. While it is recognized that small claims cases do not and should not be subject to all the requirements of ARCP 26, by not requiring that a Defendant file an Answer, those rules and the intent behind them are tossed out the window.
    The primary focus of Rule 9 would encourage the very thing the Zlakett rules seek to avoid: trial by surprise. If a Defendant appears at a hearing, for example in a contract case, with a second form of the contract in hand, the Plaintiff may not have had time to prepare and dispute that document. Indeed, the Plaintiff may well be surprised at any defense offered by the opposing party as no denial of the claim has been filed prior to hearing. Further, it is obvious that the parties would frequently be forced to seek continuances given that one party has not had any chance to prepare for the opponent’s evidence or legal position. And, as stated above, any counterclaim would necessitate a delay so the Counterdefendant could prepare.
    Perhaps it is best to place these claims in proper perspective. Although such are labeled “small claims” the amount of money can, given the financial situation of the parties, be significant if not downright onerous. Nowhere, in any courtroom do we allow trial by ambush, yet, for these “small claims” the State of Arizona is preparing to not only allow such prejudice but is actually encouraging that situation.

    Rule 14(b), Rescheduling the Hearing and 14(f), Additional time to Prepare
    The proposed rules allow a party to request a continuance 15 days prior to the hearing. In PCJCC, if every one of the 3,500 cases must be set for a hearing, the calendar will be full, again at an average of 14 a day. It will likely be too difficult to reset the hearing in a timely manner. The rules also provide the opportunity for the defendant to appear at the hearing and request a continuance if more time is needed to prepare. This rule is a self-fulfilling prophecy when combined with Rule 9 above. Defendants can ignore the claim and then come into court and ask for a continuance due to their own neglect in addressing the complaint. The frustration that will be felt by a truly aggrieved Plaintiff will be justified when the system is so fundamentally slanted towards the rights of the opposition in disregard of the Plaintiff.

    Conclusion:
    The current process has been in place for decades and provides for an informal, speedy and inexpensive resolution of small claims lawsuits. Ensuring that courts follow the current rules, as well as adding a provision for cases to be dismissed earlier when the defendant fails to answer, should bring the disposition of these cases well within the time standard. We would recommend noticing the Plaintiff at 150 days that the case will be dismissed, without further notice, unless a default or dismissal is filed within 30 days.
    If the rules are deemed to be advantageous for smaller courts, then PCCJC would request an exemption as the futility and waste of setting 3,500 trials a year, only 1 percent of which will proceed, is obvious.
    Jeff Fine
    New Member
    Posts:1 New Member

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    16 Mar 2018 04:33 PM
    Jeff Fine
    Court Administrator
    Maricopa County Justice Courts
    222 N Central, Ste 210
    Phoenix, AZ 85004
    602-372-1561
    JeffFine@mcjc.maricopa.gov

    The Court Administrator of the Maricopa County Justice Courts hereby files his comment in response to the above petition. See attached.
    Attachments
    mmathes
    New Member
    Posts:3 New Member

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    27 Apr 2018 09:38 AM
    Petitioner: Honorable C. Steven McMurry, Chair
    Committee on Improving Small Claims Case Processing
    Mailing Address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
    Phone: (602) 452-3966
    Fax: (602) 452-3480
    E-mail: mmathes@courts.az.gov

    Petitioner files an amended petition with supplemental "redline" appendices.

    Filed: April 27, 2018

    COMMENTS SHALL BE DUE ACCORDING TO THE FOLLOWING MODIFIED SCHEDULE:

    Comments to this amended petition are due September 7, 2018

    Petitioner may file a second amended petition by September 19, 2018

    Comments to the second amended petition are due October 19, 2018

    Petitioner may file a reply to second amended petition by October 26, 2018
    Attachments
    Wm. E Morris Institute for Justice
    New Member
    Posts:8 New Member

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    31 May 2018 02:37 PM
    Ellen Sue Katz
    William E. Morris Institute for Justice
    3707 North Seventh Street, Suite 300
    Phoenix, Arizona 85014-5095
    (602) 252-3432
    eskatz@qwestoffice.net
    AZ Bar. No. 012214
    Attachments
    JudgeGeraldWilliams
    New Member
    Posts:6 New Member

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    03 Sep 2018 07:45 PM
    Gerald A. Williams
    Arizona Bar No. 018947
    North Valley Justice Court
    14264 West Tierra Buena Lane
    Surprise, AZ 85301
    GeraldWilliams@mcjc.maricopa.gov

    Additional Comments and Continued Objection to Some of the Proposed Small Claims Rules
    Attachments
    Marretta Mathes
    New Member
    Posts:3 New Member

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    19 Sep 2018 04:23 PM
    Petitioner: Honorable C. Steven McMurry, Chair
    Committee on Improving Small Claims Case Processing
    Mailing Address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
    Phone: (602) 452-3966
    Fax: (602) 452-3480
    E-mail: mmathes@courts.az.gov

    Petitioner files an amended petition with supplemental "redline" appendices and full-page graphs that are contained in Appendix A.

    Filed: September 19, 2018

    COMMENTS SHALL BE DUE ACCORDING TO THE FOLLOWING MODIFIED SCHEDULE:

    Comments to this second amended petition are due October 19, 2018

    Petitioner may file a reply to second amended petition by October 26, 2018
    Attachments
    JudgeGeraldWilliams
    New Member
    Posts:6 New Member

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    25 Sep 2018 10:54 AM
    Gerald A. Williams
    Arizona Bar No. 018947
    North Valley Justice Court
    14264 West Tierra Buena Lane
    Surprise, AZ 85301


    Alternative Language for Proposed Small Claims Rules
    Attachments
    Frank J. Conti
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    Posts:2 New Member

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    10 Oct 2018 02:10 PM
    FRANK J. CONTI
    Justice of the Peace
    Dreamy Draw Justice Court
    18380 N. 40th St., Ste. O
    Phoenix, AZ 85032
    (602)372-7000
    contif@mcjc.maricopa.gov

    Objection to Small Claims Rule Petition / Supreme Court No. R-18-0021

    I join the objections to the proposed small claims rules raised by Presiding Justice Adam Watters of the Pima County Consolidated Justice Court, and by my fellow Maricopa County Justices of the Peace Gerald Williams, Miles Keegan, Donald Watts, Craig Wismer, Cecil Ash, John McComish and David Osterfeld. I believe the observations of Judges Keegan and Watts should be given great weight, as they were directly involved in the pilot program in Maricopa County.

    I write separately and largely regarding the issue of whether it is advisable for the proposed rules to permit a small claims defendant to simply request a hearing rather than file an answer. I believe such a rule is contrary to Arizona law and violates the concepts of due process, basic fairness, and judicial economy.

    ARS § 22-515 requires that a small claims hearing be set “[o]n the filing of an answer by the defendant” and “shall be set for a date within sixty days of the filing of the defendant’s answer.” The proposed rules ignore this statute by permitting the filing of a request for hearing in lieu of an answer.

    As a theoretical matter, proposed court rules—however noble or well-meaning—should not be used to wish away laws duly enacted by our state Legislature that might inconveniently stand in the way of favored judicial policy choices. This questionable practice disregards the sanctity of the separation of powers among the three coequal branches of our constitutional republic, and should be avoided at all cost.

    As a practical matter, the preparation and filing of a written answer in a small claims case is the defendant’s initial opportunity to sit down and invest time and effort into the matter. It’s the first chance to crystalize his or her thoughts—however rudimentary they might be—and communicate a position contrary to the plaintiff’s. The answer signifies the defendant’s formal joining in the controversy.

    The declared thinking behind the proposed rules is that removing the answer requirement “revolves around the issue of access to justice” and “allowing defendants to appear who may otherwise not file a written answer.” It’s difficult to assess the value of these nebulous phrases in the face of clear statutory language to the contrary. How exactly does requiring the filing of an answer impair a defendant’s access to justice when a defendant guarantees his or her access by answering the complaint? There is no evidence that making answers optional increases pro per defendant participation; that certainly has not occurred in the context of residential eviction actions.

    The filing of a nonspecific “request for hearing” is a blanket denial. It shrouds the litigation in mystery, promotes a lack of commitment or seriousness in the defendant, and hampers the court’s ability to ensure that both sides are playing with their cards face up on the table. Rather than having the defendant narrow the focus in some reasonable way, the proposed rules allow fogginess to creep into the proceedings right from the outset. Expecting both sides to be prepared for a contested hearing where only one side has declared its position is hostile to the notions of due process and fundamental fairness.

    Having the small claims mimic the efficiency of the regular civil litigation paradigm makes more sense than recreating the wheel. Requiring an answer allows the matter to be adjudicated by way of either a default judgment or (if the statute is amended) a judgment on the pleadings. Such an approach would be more efficient, and less laborious for the court and the litigants, than setting an initial hearing where there may be no service or proof of claim, or setting a contested hearing where one party is in the dark.

    Rather than setting an “ambush” hearing where one party has hidden its defense, it would be more useful to require a mediation conference in all cases. At least the parties would then be forced to gather their evidence and arguments, learn more about the opponent’s position, and perhaps even reach a settlement. After all, the best possible result of litigation is always where the parties amicably resolve their differences among themselves. Alternate dispute resolution provides yet another exit on the highway to a small claims hearing. Expending court resources to facilitate this end is worthwhile.

    Another argument in favor of the proposed rules is that pro per plaintiffs are somehow incapable of comprehending the legal system, and that the initial hearing helps speed the process. As it stands now, all that a small claims plaintiff must do to obtain a default judgment is: (1) file the complaint; (2) serve the defendant and provide proof of same; (3) request entry of default upon failure to answer; (4) submit proof of the amount of the claim and a form of default judgment. By comparison, this process is simpler than the myriad technical statutory requirements for obtaining an eviction judgment.

    A written explanation of the small claims process is provided to litigants at the outset. If further simplification of this information is needed? That should be done. But expecting litigants to invest a modicum of time and effort to educate themselves on the process ultimately comes back to personal responsibility. Is that really asking too much? The burden of prosecuting a small claims case must always be borne by the one who brings it. Requiring all plaintiffs to physically appear in order to obtain a default judgment—where service is complete and the defendant does not answer or appear—accomplishes one thing for certain. It punishes competence. And where service is not complete, an initial hearing wastes the time of the plaintiff and the court. Such are the absurd inefficiencies caused by bureaucratic paternalism.

    For the reasons stated above, I believe that any mention of a “request for hearing” intended as a substitute for the filing of a written answer should be stricken from the proposed rules. Additionally, I humbly suggest that the Alternative Language for Proposed Small Claims Rules put forward by Judge Williams et al. be adopted, and amended to strike any mention of a “request for hearing.” I further propose that Rule 9 of said alternate rules be amended to add a second paragraph, as follows:

    Rule 9. Answer. A defendant’s written response to a complaint is called an answer. The answer must include a short factual response to the allegations in the plaintiff’s complaint. A.R.S. § 22-514.

    The court, in the interests of justice and in an effort to resolve small claims cases on the merits, may deem any written response filed by the defendant as an answer, regardless of whether the defendant has called it an “answer,” so long as that written response disputes all or part of a plaintiff’s claim with some reasonable degree of particularity.

    In conclusion it should be noted that the work of the Committee is vitally important for maintaining public confidence, and for providing efficient and fair service to those who use our courts to seek justice in small claims litigation. This comment should not be interpreted as criticism of the Committee’s work. The Committee has been tasked with the Herculean chore of bending and shaping the small claims process to meet time standards that may not be entirely realistic in all circumstances—sort of like asking someone to reverse engineer the tail to wag the dog.

    Respectfully submitted,

    FRANK J. CONTI
    Justice of the Peace
    Dreamy Draw Justice Court
    Marretta Mathes
    New Member
    Posts:3 New Member

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    18 Oct 2018 01:17 PM
    Filed on behalf of:
    Marcus W. Reinkensmeyer
    Court Services Director
    Administrative Office of the Courts
    1501 W. Washington, Suite 410
    Phoenix, AZ 85007
    (602) 452-3334
    mreinkensmeyer@courts.az.gov
    Attachments
    Wm. E Morris Institute for Justice
    New Member
    Posts:8 New Member

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    19 Oct 2018 10:00 AM
    Ellen Sue Katz, AZ Bar No. 012214
    William E. Morris Institute for Justice
    3707 N. 7th Street, Suite 300
    Phoenix, Arizona 85014
    (602) 2542-3432
    eskatz@qwestoffice.net


    Attachments
    James R. Morrow
    New Member
    Posts:1 New Member

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    19 Oct 2018 12:17 PM
    Committee Name: Committee on Improving Small Claims Case Processing
    Information concerning commenter:
    James R. Morrow
    Administrator, Maricopa County Justice Courts
    222 N. Central, Suite 210
    Phoenix, Arizona 85004
    602-372-1561
    JimMorrow@MCJC.maricopa.gov
    AZ Bar No. 011630

    The bench of the Maricopa County Justice Courts authorized Presiding Judge Keith Russell to file a comment seeking an extension. As its administrator and with the assistance of its judicial education officer, Charles J. Adornetto, we file this separate comment in support of MCJC’s position and to provide a more detailed review of the critiques of the proposed rules. The rules as presently proposed are expansive and expensive. As detailed in pages 9-10 of the attached comment, two straightforward amendments to the Justice Court Rules of Civil Procedure would promote the fair and timely resolution of small claims matters.
    Thank you for your consideration.
    James R. Morrow
    Attachments
    Keith E. Russell
    New Member
    Posts:1 New Member

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    19 Oct 2018 12:51 PM
    Committee Name: Committee on Improving Small Claims Case Processing
    Information concerning commenter:
    Keith E. Russell
    Presiding Judge
    Maricopa County Justice Courts
    222 N. Central, Suite 210
    Phoenix, Arizona 85004
    480-985-0188
    KeithRussell@MCJC.maricopa.gov
    Attachments
    Marretta Mathes
    New Member
    Posts:3 New Member

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    26 Oct 2018 04:04 PM
    Honorable C. Steven McMurry, Chair
    Committee on Improving Small Claims Case Processing
    Mailing Address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
    Phone: (602) 452-3966
    Fax: (602) 452-3480
    E-mail: mmathes@courts.az.gov
    Attachments
    mmathes
    New Member
    Posts:3 New Member

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    31 Oct 2018 03:32 PM
    Honorable C. Steven McMurry, Chair
    Committee on Improving Small Claims Case Processing
    Mailing Address: 1501 West Washington Street, Suite 410, Phoenix, AZ 85007
    Phone: (602) 452-3966
    Fax: (602) 452-3480
    E-mail: mmathes@courts.az.gov

    Motion to Delay Consideration of Petition Until August 2019 Rules Agenda
    Attachments


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