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Last Post 28 May 2010 02:59 PM by  lkoschney
R-10-0002 Petition to Amend AZ Rule of Civil Procedure 4.1
 11 Replies
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Author Messages

19 Jan 2010 02:59 PM
    R-10-0002 Petition to Amend AZ Rule of Civil Procedure 4.1

    Would amend Rule 4.1, Ariz. R. Civ. P., to permit service on the registered vehicle owner by first-class mail of complaints relating to civil traffic violations captured by a photo enforcement system.

    John D. Wintersteen
    4702 E. Lincoln Drive
    Paradise Valley, AZ 85253

    Filed January 8, 2010.

    Comments due May 20, 2010.

    REJECTED, August 31, 2010.
    Raging Bull

    04 Feb 2010 11:28 AM
    Mr. Wintersteen, acting on behalf of all Arizona drivers, being subjected to a Governor imposed revenue generating
    machine, would love to see the interest of "REDFLEX Traffic Systems" best served by this petition.

    Parhaps, he still feels a sense of remorse because of "Tonner v Paradise v Magistrate".
    He notes the majority of "States" utilizing photo radar, issues service by first class mail.
    He fails to mention that the "Majority" of the free states of America have rejected "Photo Radar" as
    a tool to enforce traffic laws.

    Is there a potential conflict of interest on his part?
    Why would a retired Peace Officer care about this civil court matter?
    Then, again why is the judicial system, constantly in the process of modifying and/or tweaking the Rules & Procedures
    just to accomodate "Redflex" under the guise of traffic safety.

    I as a resident of the State of Arizona, the County of Maricopa, and the City of Phoenix, I ask the Court to reject this
    petition on the basis that only a "Private Company" interest is best served by this petition.
    The sole purpose being to modify a standing rule to address the ill fated Janet's Law of "Photo Enforcement"
    for the purpose of generating revenue for the State of Arizona.

    I plead to the Court to leave the "Rules of Civil Procedure 4.1" as they are.

    Respectfully submitted this day Feb. 4, 2010
    Gaspare Gaglio
    4222 W. Avenida Del Rey
    Phoenix, AZ. 85083-2401

    08 Feb 2010 02:50 PM
    The Court should be concerned that Rule 28 permits the filing of anonymous petitions.

    It has been reported that the petitioner is a figurehead whose involvement with the petition’s drafting was minimal. If so, the effect of his involvement is to hide its authorship; it is hard to conclude that that was not also the intent. I do not mean to question the petitioner’s personal integrity and belief in the petition’s contents, or to imply that the law firm responsible has done anything other than to act within the rules on its client’s behalf. Anyone may file petitions, including special interests. But appropriate to their proper consideration, surely, is that they reveal – rather than conceal – their authors’ identities and agendas.

    The result in this case is a news story, carried nationally by the AP, which could be seen as casting the integrity of this Court’s procedures (and also of the firm and its client) in an unfortunate light.

    Regardless of the merits of this petition, the Court should amend Rule 28 to require full disclosure.

    The Court has addressed the issue of service by mail. The safeguards of Rule 4.1(c)(2) exist because the Court found them necessary to balance defendants’ rights with plaintiffs’ desire to save money.

    The petition contends in essence that when government decides to sue its citizens en masse, safeguards are too expensive. Its argument proceeds, as such arguments must, by presuming defendants’ guilt and moral unworthiness: they are “violators” who fail to do their “duty,” scofflaws who “thwart” justice by such fiendish machinations as failing to answer the door or choosing to live in a gated community or having a company car. The answer is to reduce the rights of even the innocent, to reverse the real burden of going forward, and to base judicial jurisdiction on a factual assumption (of mail receipt). That this somehow “enhances the rule of law” is a logic difficult to parse; it is certainly not legal logic as 1000 years of the common law have understood it.

    The proposed rule would enhance efficiency if by that we mean bureaucratic convenience and if we use the petition’s circular logic: making service unnecessary will save the unnecessary cost of making service. May government elide rights to save money if it “most often” charges just a “small monetary penalty”? Even if the proposition made legal sense, it is surely not for the Court to define “small.” If people considered the penalty small then the petition would not need to worry about their trying very hard to avoid paying it.

    Stephen Lesher
    5151 E. Broadway #1510
    Tucson, Arizona 85711
    (520) 747-7790

    17 Feb 2010 03:02 PM
    R-10-0002 Petition to Amend AZ Rule of Civil Procedure 4.1

    John "Jeff" & Mary Ellen Ahrens
    1115 Buena Vista
    Dewey, AZ

    07 Apr 2010 08:32 AM
    I strongly oppose this rule change by RedFlex against all motorists in Arizona. This is clearly a self-serving rule change request on the part of RedFlex to further their own profits. I contend that John Wintersteen is mearly a co-conspirator in the destruction of due process rights of Arizona motorists.

    In virtually every jurisdiction in the country, the accepted consensus for all traffic violations (even if considered civil matters) is that they are "quasi-criminal". Therefore, all arguments relating to civil procedure rules should be tempered by the fact that the relationship of the parties involved is not truly civil in nature, but more appropriately "quasi-criminal" between the government and the individual motorist. Add to this the fact that the charge is brought against the "accused" by a mechanical device (not bonded or sworn) and is processed by a commercial entity such as RedFlex on a "for-profit" basis. There have been multiple examples over recent years of errors in the commercial entity processing of the so-called "citations". Consideration of this rule change would increase the burden on those falsely charged by a non-human system to prove their innocence. This is fundamentally wrong in a system that calls itself "justice".

    First class mail is not acceptable "service" in any case, and any so-called "citations" should never be mailed. This issue was clearly stated in the Arizona Appeallate Court case Tonner v. Paradise Valley Magistrate' Court, that mailed notices did not constitute "service". This was further emphasized in Tucson by Assistant Chief Sharon Allen of the Tucson Police Department in her memo to the Tucson City Council in November 2006, that citations could not be mailed in Arizona. Only a Notice of Violation could be mailed, and that notice could not be used for any sanctions against the accused.

    Mailing to a registered owner may not be notice to anyone involved in the "quasi-criminal" accusation. If the ownership is other than a private individual, or is a non-resident (in or out of the country), then clearly a difference in true and accurate notice to the actual offender exists. This rule would place a disproportionate burden on private individuals, while treating others less aggressively. It would not be equal treatment under the law.

    Additionally, the entire concept of photo enforcement is politically controversial at this time, and may be eliminated entirely in Arizona. It is only prudent to refrain from rule changes relating to photo enforcement until its continued existence is determined. Now is not the time to enhance RedFlex revenues.

    Finally, since the Arizona Supreme Court receives 45% of all fines collected in this process, I believe that the Arizona Supreme Court has a conflict of interest in this matter. The court cannot be considered impartial. This change should be considered outside of any influence by the Arizona Supreme Court.

    It is for all these reasons and the fundamental failure of first class mail to meet anyone's concept of reasonable due-process procedures that I most strongly oppose this rule change.

    Mark C. Spear
    7855 E. Pinon Circle
    Tucson, AZ 85750

    14 Apr 2010 05:22 PM
    I am 100% against this rule change. I point out to the court the following:

    Arizona State Constitution, Article 2, Section 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.

    The converse corollary is: No law shall be enacted punishing any citizen, class of citizens, or corporation other than municipal, for offenses which, upon the same terms, shall not equally belong to all citizens or corporations.

    So someone wishes to remove the requirement for service via a person for this particular offense and rely solely on the U.S. Mail to deliver service for this particular offense, while the U.S. Mail is still barred from being used to deliver service for any other offense. It would appear by implementing this rule change, a special class of citizens is created solely for the punishment of violating a traffic photo enforcement system, which is a civil violation. Furthermore, a corporation (REDFLEX Traffic Systems) is then given a special "privilege and immunity" which is unavailable to any other corporation, group of citizens, or citizen within the state of Arizona.

    This proposed rule change is clearly unconstitutional.

    Respectfully submitted this day 1520 hours, 14 April 2010

    Milton Schick
    4835 N. Valley Park
    Tucson, AZ 85705-1867

    18 Apr 2010 10:52 PM
    If it please the court, I strongly recommend against the implementation of this proposed rule change,for a number of reasons. These reasons are as follows:

    First, our State Constitution (Article 2, Section 13) states that no law whall be enacted which does not equally
    apply to all citizens and corporations, save for municipalities. By implementing this rule change, we are creating a procedure where the treatment of people (or corporations) in traffic cases is not the same as for everyone else pursuing a civil court case.

    Second, when the rule regarding civil service of process was created, the original authors recognized that service by
    first class mail is unreliable, since this delivery method does not guarantee that a person or corporation would receive the notice of the civil trial. We all know that mail gets misdirected or lost frequently. As a result, people can be erroneously found responsible in civil cases by default, thus creating an unnecessary and unfair burden on both the citizens and the Court.

    Third, this change allows private corporations without law enforcement training or even an investigative license to
    perform law enforcement functions without sufficient checks and balances. Under this proposed revision, there would be nothing to prevent private interests from "manufacturing" traffic violations solely for the purpose of generating revenue. We would not even have any assurance that a corporation such as Redflex actually sent out notices of civil cases. The end result is that regardless of how the claim is made, all the plaintiff would have to do is simply say "we sent out the notice via First Class Mail". In turn, this would cause needless grief to our citizens.

    Fourth, the issue of notice sent via first class mail has been repeatedly addressed by courts in the past, and these
    rulings state that first class mail is insufficient when it comes to service of process for civil cases (including traffic
    tickets). An example of such a case is Tonner v. Paradise Valley Magistrate Court.

    5) Fifth, I intend no disrespect, but the Court receives 45% of all fines collected for traffic cases, including those
    involving photo enforcement. The subject of this proposed rule change involves photo enforcement traffic cases. Thus, this condition creates a conflict of interest for the Court; the Court cannot not be viewed as impartial in this aspect. Hence, this proposal should be considered outside of any influence by the Court.

    6) Finally, there appears to be demonstrable evidence that John Wintersteen (the petition's author) has been subjected to undue influence by Redflex or other corporations in the process of creating and filing this petition. Law enforcement has traditionally been held to the standard of being an objective observer; Mr. Wintersteen should know this as a retired law enforcement official. I don't mean any disrespect, but the presence of the undue influence calls the credibility and objectivity of this proposal into question.

    In closing, this proposal railroads motorists into paying additional "tax" for the benefit of a foreign owned private corporation. The change is also not in accordance with our State Constitution. Furthermore, there are conflicts of interest which are created if the proposal were implemented. Finally, it empowers a foreign corporation without law enforcement training to more-readily manipulate the justice system for its own benefit.

    For these reasons, I respectfully ask the Court to deny this petition.


    Alan Ace
    1018 S. Price Road
    Tempe AZ 85281

    28 Apr 2010 03:03 AM
    I write to oppose the proposed rule change for several reasons, but primarily because the submission proposes to transform the present [b]driver[/b]-responsibility scheme into an [b]owner[/b]-responsibility scheme.

    The proposal, in its own language, would deem a complaint served upon

    [quote]mailing a copy of the traffic complaint to the address of the [b]registered vehicle owner[/b][/quote] (emphasis added)

    The proposal does not specifically address the implication, but one must presume that it is the registered owner (irrespective of who was operating the vehicle) who would be deemed served, and who would presumably be held to answer for the complaint.

    In this case, should the registered owner fail to appear, a default would be entered against the registered owner, without regard to who actually committed the violation -- a significant transformation of the impact of the law promulgated by a mere rule change.

    Should the registered owner who is not the alleged violator appear and defend the action, it is possible that some courts may deem the rule change as permission to hold the registered owner responsible for violations committed with the owner's vehicle, without regard to who was driving. Alternatively, and perhaps more likely, limited judicial resources would be wasted (not to mention the time and effort of the registered owner) when registered owners appear and defend the action, when they are not the alleged violator, and courts hold that they cannot be held responsible merely because they are the registered owner who was served.

    Another alternate implication of this ambiguity is even more troubling. It is possible to read the proposed rule change so that the alleged violator is deemed served upon mailing the complaint to the registered owner, even when the alleged violator is not the registered owner. This plausible interpretation of the proposed rule change would make a mockery of principles of due process and fair notice. Under this interpretation, since registered owners who receive the complaint by mail are under no obligation to take any action whatsoever, yet the alleged violator named in the complaint will bear the consequences, regardless of their lack of notice.

    These significant problems are reason enough to reject the rule change here proposed.

    Additionally, the following language from the proposed rule change produces another set of significant problems, without a proper check and balance:

    [quote]Violation of Civil Traffic or Vehicle Regulation Laws Captured On State or [b]Local[/b] Photo Enforcement System[/quote] (emphasis added)

    Pursuant to Rule 1, Rules of Procedure in Civil Traffic and Civil Boating Violation Cases:

    [quote]Rules 38-45 shall apply only to photo enforcement cases that are commenced pursuant to A.R.S. § 41-1722.[/quote]

    In turn, A.R.S. § 41-1722(A) requires that the Arizona Department of Public Safety

    [quote]establish a state photo enforcement system consisting of cameras placed throughout this state as determined by the director to enforce the provisions of title 28, chapter 3, articles 3 and 6 relating to vehicle traffic and speed.[quote]

    In other words, a "State Photo Enforcement System".

    Importantly, A.R.S. § 41-1722(B) limits the civil penalty that may be assessed to $165 (plus the Clean Elections surcharge), and A.R.S. § 41-1722(D) prohibits using the violation for driving license suspension or revocation purposes. These limits reflect a judgment by the legislature to balance the procedural limitations of the State Photo Enforcement System with corresponding limits on the penalties that may be imposed.

    The proposed rule change includes a minor modification to Rule 45, Rules of Procedure in Civil Traffic and Civil Boating Violation Cases, which, pursuant to Rule 1 only applies to the State system.

    A.R.S. § 28-1593(A), as applicable to these types of cases, requires that a:

    [quote]traffic complaint may be served by delivering a copy of the uniform traffic complaint citation to the person charged with the violation or by any means authorized by the rules of civil procedure.[/quote]

    The photo enforcement practices of the political subdivisions of the State are not subject to the limits of A.R.S. § 41-1722, and therefore, should the proposed rule change take effect, the photo enforcement complaints issued by municipalities and counties could be deemed served by merely mailing the citation to the registered owner (again, with some ambiguity as to whether the registered owner then is deemed served and held to answer, or the alleged violator is deemed served even if they are not the registered owner).

    Without the limits imposed by A.R.S. § 41-1722, this raises the specter of significant numbers of drivers who may have courts issue arrest warrants for their failure to appear to answer a complaint of which they have no actual notice (as they may be an alleged violator who is not the registered owner, or they may be an innocent registered owner who did not receive actual notice for any number of common reasons).

    On occasion, this already happens, for which a personal service requirement acts as a limitation and balance, to significantly reduce the likelihood of error and increase the likelihood of actual notice to defendants.

    The proposed rule change would eliminate this important backstop and check, with serious consequences to many, many more innocent drivers without actual notice. Among these significant consequences which already happen, but thankfully rarely, are arrest, conviction of a misdemeanor, significant fines, having their vehicle impounded, and the associated significant legal costs. Should service by mail be authorized, this is very likely to spur a significant increase in such consequences to actually innocent drivers.

    For the reasons cited, this proposed rule change should be rejected.

    Respectfully submitted,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky, Rike & Elgart, PLLC
    Tel.: +1.480.626.5415
    FAX: +1.480.626.5543
    86 W. University Dr., #107
    Mesa, AZ 85201-5858

    Legal Notice & Disclaimer:

    10 May 2010 12:02 PM
    See attached document

    T.J. Gates
    5312 E. Royal Palm
    Paradise Valley, AZ 85253

    11 May 2010 03:37 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Ste. 200
    Phoenix, AZ 85016-6288

    20 May 2010 07:16 PM
    Terry L. Stewart
    Justice Court Administrator
    Maricopa County Justice Courts
    222 North Central Avenue, Suite 210
    Phoenix, Arizona 85004

    (W) 602.372.1561
    (F) 602.372.8792
    (M) 480.330.0771


    28 May 2010 02:59 PM
    R-10-0002 Rules of Civil Procedure 4.1

    William Blankstyn
    1912 E. Augusta Avenue
    Chandler, AZ 85249
    Topic is locked