James E. Ledbetter, Esq.
The Ledbetter Law Firm, PLC
1003 North Main Street
Cottonwood, Arizona 86326
State Bar No. 012788
Pursuant to Rule 28(D) of the Arizona Supreme Court Rules, I submit this comment in opposition to the recent Petition to Amend Rule 4.1(i) of the Arizona Rules of Civil Procedure for the reasons stated below and for the reasons stated by Eileen Dennis GilBride, Matthew Wright, Joni Hoffman, Jeffrey Murray and William Doyle.
The Petition is drafted to amend Rule 4.1(i) as it applies to Arizona’s “notice of claim” statute: A.R.S. § 12-821.01. If adopted, the amendment would enact two major changes: (1) service of a notice of claim on a “public entity’s governing group, body, or board” would be satisfied by serving “any member of that group, or body,” and (2) if that member has an “administrative assistant, or employee, who opens mail or legal documents for that person, signs for mail or legal documents for that person, or is authorized to accept delivery of mail or legal documents for that person,” service to those persons would be “sufficient” to satisfy the notice of claim requirement.
In support of the proposed amendment, the petitioners opine that their approach will solve three issues purportedly prejudicing the rights of claimants: (1) the difficulty in determining exactly which party, or parties, must be served, (2) the difficulty in identifying the proper party, or parties, authorized to accept service and (3) confusion surrounding whether or not personal service is required to satisfy Rule 4.1(i) or whether serving assistants, or those who normally accept mail and other important documents for a public employee, will satisfy the service of process requirement.
The proposed amendment will cause more problems than it solves. Thus, the Court should not adopt the language proposed in the Petition because: (1) it does not adhere to the principles of basic due process that are embedded in the intended purpose of A.R.S. § 12-821.01 and attendant case law; (2) the petitioners have overstated the detrimental impact of the current rule on claimants; (3) amending the notice of claim process is a task better left to the Legislature; and, (4) public bodies have individually elected representatives, each of whom is entitled to service out of respect to those who elected the members.
I. The amendment does not adhere to the principles of basic due process that are embedded in the intended purpose of A.R.S. § 12-821.01 and attendant case law.
Adopting the language proposed by the petitioners would result in an inadequate service of process procedure. The purpose of serving process is twofold: (1) to give a party actual notice of the claims against him and (2) to afford the party an opportunity to respond. Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. Div. 1 1985). Allowing service on one member of a group to satisfy the notice requirement is problematic since simply “[serving] a notice of claim upon a single member of a multi-member political entity does not necessarily result in successful notice to the entity as a whole, which is the point of A.R.S. § 12–821.01(A) and Rule 4.1(i).” Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 529, 144 P.3d 1254, 1258 (2006). Additionally, “[m]any of the part-time members of political subdivisions, such as school boards, may not appreciate the significance of a notice of claim or realize that such a claim must be acted upon within sixty days . . . . [Furthermore,] the individual served may have no reason to think that he or she was the only member served, and so might not think it necessary to inform others.” Id.
In opposition to this logic, the petitioners argue that the current requirements for service of process are a “trap for the unwary,” and overly burdensome to the point that lawyers often have to “stalk” or “stake-out” the officials that must be served. Moreover, they have implied that determining who must be served, and who is authorized to be served, is an unnecessary “hurdle” for practitioners since there are three sections of the Arizona Rules of Civil Procedure – R. 4.1(h)-(j) – that designate the party that must be served when initiating an action against a government entity. The reality is that the Arizona Rules establish the proper individual(s) to be served as a necessary procedural requirement to ensure that the proper representatives and decision-makers of a government entity receive actual notice of any claims against them and are afforded an opportunity to respond. The language of the proposed amendment would abrogate that ability. Additionally, determining which Rule applies should not hinder any claimant’s ability to exercise their rights. Attorneys licensed to practice in Arizona should have the requisite competence to determine which Rule applies to their alleged cause of action.
II. The petitioners have overstated the current rule’s detrimental impact on claimants.
The petitioners have characterized the service of process procedure as “treacherous or impossible,” since some governmental entities do not specifically identify the “chief executive officer.” Furthermore, the petitioners argue that it is an “extreme [and] expensive proposition” for claimants to be required to serve every member of a school district board, and not just one of its members. The petitioners may be correct, on a basic level, that this requirement increases the costs of service for claimants. Additionally, the process may be somewhat confusing at times. But, the characterization of the process as “extreme,” “treacherous,” or “impossible,” is mere hyperbole. An attorney exercising proper due diligence should be able to ascertain the exact parties that must be served. Additionally, if service to a party proves to be impracticable, the Arizona Rules of Civil Procedure already provide for alternative methods through which the notice of process requirement can be satisfied. See, e.g., Ariz. R. Civ. Pro. 4.1(m). Moreover, a court can determine that the process requirement is satisfied even if every member required to be served is not served. See, e.g., Graham v. Dysart Unified School District, 2010 WL 3401464 (D.Ariz. 2010) (holding that, despite the entire school board not being served, serving a notice of claim on the “only known and legal address” of the school district and to the attorney that represented the district was sufficient to comply with the notice of process requirement).
The fact that plaintiffs may incur additional expense to properly assert their claim is necessary to ensure the litigation process comports with fundamental due process requirements. Every defendant has the right to receive proper notice and adequate opportunity to investigate and respond to a claim. Marks, 146 Ariz. at 15, 703 P.2d at 562. Guaranteeing this right is especially important for public entities, such as school districts, that deal with many members of the general public and are potentially subject to vast amounts of legal action.
III. Amending the notice of claim procedure is a task better left to the Legislature.
The petitioners’ proposed amendment presents issues that should be resolved by the Legislature. Courts have consistently stated that “[t]he purpose of the [notice of claims] statute is to allow the entity and employee the opportunity to investigate and assess their liability, to permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting.” Harris v. Cochise Health Sys., 215 Ariz. 344, 351, 160 P.3d 223 (App. Div. 2 2007). Furthermore, “[c]ompliance with the notice provisions of A.R.S. § 12-821.01(A) is a mandatory and essential prerequisite” to a damages action against an Arizona public entity. Id. See also, Salerno v. Espinoza, 210 Ariz. 586, 588, 115 P.3d 626 (App. Div. 1 2005). If the statutory requirement can be satisfied by allowing service on a single board member, or an “administrative assistant or employee” that works for them, the likelihood that entities will receive actual notice and a meaningful opportunity to respond will be unacceptably diminished. Instead, if a change to the notification procedure is to be made, the more appropriate method is through Legislative action. For instance, the Legislature could mandate the appointment of a statutory agent authorized to accept service of process. This would simplify the claimant’s duty to meet the notice requirement and alleviate many of the concerns addressed in the Petition. In contrast, adopting the petitioner’s approach would frustrate the purpose behind the notice of claim requirements and result in much greater uncertainty in the notification procedure.
IV. Public bodies have individually elected representatives; each of whom is entitled to service out of respect to those who elected the members.
Adopting the proposed amendment would be contrary to certain global public policy concerns. From years of personal experience serving as a school board member, and representing a number of counties and school districts, I have realized the fact that people get elected as representatives for a variety of reasons. In being elected, each individual has been chosen by the public to represent certain interests and to perform the tasks for which they were elected. If service to an individual board member, or administrative employee, is allowed to satisfy Rule 4.1(i) and the notice of claim requirement, the opportunity for every member to meaningfully participate and be afforded adequate time for full preparation and deliberation of the issue, would be significantly diminished. This would offend the entire purpose of having a group of board members empowered to act as a group, not individually. The notice and service of process procedure should empower the board members to separately deliberate, contemplate, and then collectively decide how to proceed. In summary, all board members should have equal opportunity to participate in the decision-making process.
Furthermore, allowing the service of one member, or their employee, to satisfy the notice of claim requirement could lead to conflict with Arizona’s Open Meeting Laws. See ARS §§ 38-431-431.09. Under these laws, school board members cannot deliberate, or make decisions, with each other unless the public is provided access to the meeting. Thus, it seems necessary that all members actually receive notice of the pending claims against them, in order to enable their functioning as a group to be the most effective.
James E. Ledbetter
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