Hon. David Widmaier
Presiding LJ Judge
928-368-6200 [email protected]
From David Widmaier, Presiding LJ Judge with input from Navajo County Limited Jurisdiction Judges and Superior Courts Bench and three local attorneys who regularly practice in our courts.
The committee clearly has put in a great deal of work into this project, and where rules were developed, or past rules re-written, the work is excellent. However, in general the vast number of rules incorporated by reference make the new set of rules cumbersome if not unusable. It is our opinion that what we now have is two sets of rules to replace one. We would like to see many of the rules that are incorporated by reference to: either be incorporated as a rule verbatim, or incorporated through a re-write, or both.
It almost seems that the committee was driven by trying to have less rules and less pages, when in fact the volume of rules was never the issue, a simpler writing is what is important. We understand the committee tried to re-write the most-used rules with less emphasis on those rules rarely used; however, all the rules are important and it is our opinion that we should have a truly independent set of rules.
There are 40 new rules (although the actual number is 47, seven are wholly adopted from ARCivP), additionally 48 rules adopted by reference. There are actually more rules adopted by reference than there are new rules. One judge commented that he really enjoys the new Rules of Procedure for Eviction Actions as they are “simple, easy to read and all in one place. Any Pro Tem can get on the bench and there they are.” Another way to look at it, we took 170 pages of rules (Arizona Rules of Court, West Edition 2011), reduced it to 41 pages, but bumped it back up to almost 100 pages if rules by references are included. Here is the challenge, in the past few years the Supreme Court has written the Rules of Protective Order Procedure and the Rules of Procedure for Eviction Actions. These two new sets of rules for LJ courts had no previous counterpart. Respective committees were free to develop a set of freestanding rules without reference based upon a set of statutes. Possibly the JCRCP committee should have taken the task on as those previous committees did as though there had never been a set of civil rules – clearly a challenge considering we are all engrained in the rules we have worked and lived by for so many years.
To be fair, the rules that were re-written (with few exceptions) are clear, concise and easy to read and understand; some are better than the original rule. If this much energy was placed on the remaining rules, Arizona would have a truly excellent set of simplified, yet in-depth, rules usable by everyone including the public.
We will attempt to be brief in our commentary, with every attempt to give positive feedback.
101: An excellent introduction. However, under subsection (d). “These rules replace
the Arizona Rules of Civil Procedure, with the exception of certain Arizona Rules of Civil
Procedure that are specifically referred to in these rules. Arizona Rules of Civil Procedure that
have been incorporated by reference are listed in Table 1.” One judge asked, why a table, why not the actual rule, that way they are linked together, no need for two sets.
102: Note the word “duty.” It is used without definition in (b)1, 2, and 3, then we go to “is required,” this is oddly inconsistent. One or the other should be used throughout. “Is required” or “required to” is simpler and “duty” is a term commonly used in tort actions, however, it has many meanings. If the word is used, consider adding a definition under subsection (a). Another judge suggested the word “obligation.”
As a side note, there are several references to rules within these rules, we found this very useful for all interested.
103: A very good, useful rule. Subsection (d) needs to be a rule of its own, no reference. A lack of a record is more common than it should be and some JPs still hold onto the idea that we are courts not of record.
104 (a): This is a constant problem with both SRLs and represented litigant. However, this needs to be a written rule rather than by reference; many SRLs do not correctly name themselves as parties, especially those who are LLCs or other types of corporations.
104 (d): We are concerned here that “necessary” and “indispensable” parties are referenced in 19a and b, however there is no real definition of either in the rule. These rules (19(a) and (b) ARCivP) are not simple in any way; however, a re-write is not impossible.
105: Here we have an index for the ARCivP 25 et. al. We generally agreed this is a long rule and might be best simply given a new number (such as 105.1) and placed here with minor modifications.
106: This rule is a good, well-written rule, however, remove the last part of (b) and (c) which states “as provided by Rule ….. of Arizona Rules of Civil Procedure.” It is unnecessary and takes away from the fact that the JCRCP are the rules.
107: A very good set of rules. 107(c), excellent!
108(a): A good rule, but is there a remedy when there is something missing, ie. is it fatal?
(b): Format: Is hand written ok? Not mentioned.
(c): An excellent and needed new rule.
(d): Need to re-write 5(f) rather than reference.
(e): Good rule.
109: Overall a very good rule. We would like to see a definition of “verify” or “verification.” A lot of people don’t know what it really means. Note how affirmation is nicely defined in rule 109(d).
(b) We really liked the re-write of Rule 11 sanctions, however, it sort of gets lost under “effect of signature.” Why not add something like, “and effect of frivolous law suit or pleading.”
110: A very good start. 110(b)(4) is grammatically incorrect and a bit confusing. Two clear sentences would be better. “A short and clear statement of the factual basis of each claim being made. Each claim must show that the party has a right to relief from the court.”
112: A very good set of rules, also very useful for staff.
113(a): Why not use the language “by law” rather than Rule 4(e) of the “Arizona….” or better yet, explain it.
Also regarding (a), why not explain rule 4.1(d) rather than refer it. Everyone has to be served on every case. So in every case, the plaintiff will have to refer to ARCivP 4.1(d) to understand personal service.
113(c): Just as the committee was probably perplexed over how to simplify this rule, why not just cite it here with a new set of numbers and letters.
113(f): We all agreed this would have been an easy re-write, and likely a short rule.
113(g): Acceptance of service now requires a notary to sign off on the acceptance base upon this new rule, why the substantive change? The former rule (4f) did not require a notary, what is broken that needs changing?
114 (b): The rule does not address this issue which can be found in case law and McAulliffe, Rule 13 which discusses the difference between a specifically outlined counterclaim and a counterclaim that is simply “brought up” so to speak in the answer. This is surprisingly common with SRLs and occasionally by counsel. Rather than file a separate distinguishable counterclaim, the claim is made in the answer with no separate heading. The difference is this, if there is a separate counterclaim made, a responsive pleading is required. If it is contained in the defenses, it may still stand as a counterclaim, but no response may be necessary. (Civil Rules Handbook, McAulliffe, Rule 13, § 1. Scope of the Rules).
115: An excellent rule, but 114(c) is redundant to the rule.
116: Again an excellent set of rules which set the standard (or should set the standard) for all the rules. There are no references to other rules and anyone could use them. We did find Rule 116(b)(1) interesting in that a dismissal proceeds to a judgment under Rule 139. So does this eliminate dismissal with or without prejudice? Clearly a judgment is final (however may be vacated), was this the intent?
We also believe this is a very good rule in credit card cases, specifically 116(a)(3).
117: Another good set of rules without any references.
119(a): After “response has been served,” place “pursuant to Rule 120(b)”
119(c): Do we need this rule at all?
120: Excellent throughout except 120(f)(1) Subpoenas which we will comment on under 123(c), however the reference here is simply unnecessary. Simply put the word “subpoenas” period.
121: Change “duty” to disclosure to “required by the parties” or “the parties obligation to disclose…”
The references regarding privileged information does on occasion come up.
The reference under penalties needs to be written up. Disclosure is required in every case where an answer is filed, any reference here to ARCivP makes the simplified rules not so simple.
The definition under 121(a)(3) of consumer debt, some judges question whether or not this was the correct or sufficient definition.
122: This is generally a good set of rules. 122(d) we believe it such an important rule, the reference should be removed and rule put in its place (it is long, but a re-write may be useful).
(e) again, duty may be replaced with a simpler word.
(f)(6) the court ordered medical examination of a party is so rare in a justice court (not ever heard of here), we wondered why not remove the rule rather than allow a party to abuse it at the courts’ expense.
123(a): This rule allows a certified court reporter in AZ to administer an oath for depositions. Why not a court clerk? A court clerk currently can take an oath from a party to an OP, a witness in a courtroom, and at a debtor’s exam, why not here? In the rural parts of Arizona Certified Court Reporters are not only hard to find, but nonexistent in justice courts.
123(c), 120, 137(b), Subpoenas. This rule, or lack thereof, is one of the worst. The rule says “Procedure,” it then references Rule 45 ARCivP. This is not a procedure at all. Put the procedure here and get rid of the reference. Actually, the better place to put it is 137(b) which is also not a rule. Every case that goes to trial may have subpoenas involved!
124: This rule got off to a great start then fell flat on 124(d) “Procedure.” Again, there is no procedure here at all, only a reference to another set of rules. Why not put the procedure here where it belongs?
125: Same problem as rule 124, a good useable tool until a party gets to (d) “Procedure” and there isn’t a procedure, only another book to read.
126: Same problem as 124 and 125, a great start with a good clear warning and explanation, then under procedure, there is no procedure, only references to another set of rules. Why?
127: Another rule which starts off well. We liked the double notice contained in the new rule. However, the procedure is only a reference to Rule 36 ARCivP. First off, this should be spelled out as a new rule of its own. Further, if it must be by reference let’s refer it to the correct rule which is Rule 36(b) ARCivP.
We would also note that many SRLs are confused as to what 25 requests mean. Does this mean 25 different pleadings, 25 pages, 25 letters. What it really means are 25 independent questions.
128: This is a good rule, however, is there or does there need to be a stated remedy for a lack of a response under 128(c)? Should the notice at the top of the motion that is required contain language with a warning? The language is under 128(e), but shouldn’t the warning be on the top of every motion as well?
129: Here is an example of an excellent rule, written concise with a procedure, time line, and notice. Take note of 129(c); “Summary judgment motion and proceeding.” This is what is missing from Rules 124-127. A real procedure. Rule 129 is very well done!
130: This is an excellent section that has been added for those courts which use mediation.
131: Overall a good rule. Note: there is no Rule 121(e) as stated in 131(a), it should be (c). 131(b) is a very welcome addition for judges and staff as well as litigants.
132: (a) and (b) are good, but (c) should be defined. Motions in limine are common and should be incorporated as a rule, not by reference.
133: In general we believe there needs to be two sets of rules, one clearly defined for trials and another for jury trials. The section on jury trials may be appropriate by reference, however bench trials should be defined with not reference at all.
134: If this is here, why is it mentioned in Rule 133? Subsection (b) brought great curiosity because it references a directed verdict and judgment notwithstanding the verdict. This might be a good spot to put in a modest rule that incorporates a motion for summary judgment at trial. The rule could be incorporated into rule 133, and then referenced in 134 to the rule in 133.
137: The rule starts off good, but made us wonder if there should be further mention in the overall rules that the Arizona Rules of Evidence apply in all proceedings.
137 (b): This rule is glaring in its lack of a rule. Subpoenas should be here not by reference!
137 (c): Do we need this rule at all? Should it not be governed by court policy and Language Access Plans pursuant to Admin. Order No. 2011-96? It should be noted that Rule 43(c), ARCivP may not be in compliance with the new Admin. Order and Federal Law.
138: Why have these rules at all? Justice Court law suits are simple, expedient low cost $10,000 lawsuits. Why not let the parties go to an appeal process?
139: Overall good. We wondered if “costs” under 139(d) shouldn’t be defined. Many SRLs think costs mean gas, mileage, lunch, time off work etc.
139(e): We wondered if a SRL hired outside counsel to help, but did not represent at any hearing, if the party may recover attorney fees. We aren’t completely sure from the rule.
139(i): Motion to amend judgment, this is common, even from attorneys who have made math errors etc. Why not a simple rule here rather than reference?
140: Under (f), can the court sua sponte set a default judgment hearing without any request from any party?
141: It appears from the rule that the new rule eliminates the old two prong standard to set aside which is excusable neglect and a meritorious defense. Now the requirement is only one of the set in rule (c). Overall we like the rule.
143: No need to mention rule 61 ARCivP., let this rule stand on its own.
145: What about adding Constable to 145(a)? In our courts the Constable is usually the person who executes civil arrest warrants; our law enforcement officers often do not honor them.
146: A small re-write or the actual rule could have been used rather than the references, in particular the reference under (c) to 65.1.
148: So a party cannot go to the court and get forms? We noticed that there is no mention of our courts, only a web site. What if a party doesn’t have a computer or internet?
Appendix to JCRCP: We noticed that the form notice states the rule will be available at the courthouse, in particular the JCRCP. Clearly with all the references, we will need to print out both sets of rules for every party, not just the JCRCP.