Monthly Archives: May 2009

State v. Diaz (CA2 5/26/09)

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This is a supplement to an opinion issued in the same case on April 7. We didn’t review that one for reasons alluded to in our FAQ; this one we can comment on.

Diaz was tried for burglary. The jury that convicted him was polled; the transcript of the poll mentions only eleven jurors. Diaz appealed his conviction, arguing that he had a right to have twelve jurors consider his guilt but got only eleven. His counsel had not pointed this out at trial – because, the State argued, there really were twelve jurors and the reference to eleven was a mistake – but the court ruled that it was fundamental error. Because Diaz had a statutory right to twelve and the transcript showed that only eleven had deliberated, the court reversed the conviction.

After that opinion was issued, the State called the court reporter. She checked her notes and prepared a corrected transcript showing that there had been twelve jurors, after all. The State moved to correct the transcript and for reconsideration.

In this supplemental opinion, the court denied both motions. It cited a number of cases for the proposition that if you think that the record is wrong, you have to have it corrected before the appellate court rules.

That, after all, is basic common sense. If you can nip an opponent’s appeal in the bud by simply correcting the record, why put yourself and everybody else through an appeal? Isn’t calling the court reporter the first thing you do, not the last? The court asked the State’s counsel that sort of question; the answers were so dismal that the court quotes them in the supplemental opinion and signals a gentle but enormous displeasure.

But the real problem, of course, is that waiting until after you’ve lost to reveal a “corrected” transcript raises entirely too many questions about how that transcript came about. The sanctity of the record is essential to our legal system. Although neither this opinion nor the original talks much about that, we trust that the court had it in mind.

Judge Howard, who had dissented from the original ruling,  filed a brief dissent. “We now have conclusive proof that the legal principle on which the original opinion in this matter is based is erroneous and should be reconsidered,” says his new dissent. Actually, though, what the corrected transcript purported to show was that the facts were wrong, not that the law was. Its true that whether the error was fundamental is the key here. But whether it was or not, the idea that Diaz shouldn’t have been allowed to raise the argument because we now know he was wrong puts the cart before the horse.

Douglas v. Governing Board (CA1 5/28/09

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What these plaintiffs were trying to do makes sense only if you know that federal law permits something similar.

Former teachers in the Window Rock School District sued it, claiming that the District had not properly calculated their pay under a particular statute. After the trial court denied the plaintiffs’ motion for certification as a class action, the District made an Offer of Judgment. Plaintiffs accepted it. Then, before the judgment had been entered, they filed a motion for reconsideration of their class-action motion. The court denied this as being moot.

Plaintiffs appealed. They argued that the OJ didn’t cover their claim to represent a class, which is separate from their individual claims on the merits. They pointed to federal cases under which one can, indeed, accept an OJ but then appeal certification.

The Court of Appeals pointed out that Rule 68 specifically says that an OJ need not “be apportioned by claim.” So, the OJ extinguished all of the plaintiffs’ claims. And, while federal litigants can accept and appeal, they must explicitly reserve the right to appeal when they accept; in Arizona, acceptance must be unconditional.

Because they had no claim left to appeal, their appeal was dismissed.

This was an interesting issue but the opinion makes it look harder than it is. The court’s extended discussion of the statutory basis of its jurisdiction, for example, is mostly unnecessary, as is the amount of space spent on the plaintiffs’ lesser – and faintly ridiculous – arguments (e.g., that they can file motions on behalf of people who are not parties to the case and that the OJ doesn’t dispose of all claims unless it contains the word “action”).

Kline v. Kline (CA1 5/21/09)

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Reading cases on law you don’t practice can teach you things. Whether they’re the right things is another question.

This is, just like it sounds, a divorce case, which we don’t usually read. Wife got spousal maintenance based on an Amended Complaint she didn’t serve; the Court of Appeals, after some tendentious meandering, decided that she came close enough.

The interesting part is Footnote 5. It tells us that there is, after all, despite years of people’s thinking and being taught the opposite, a difference between a “general” and a “special” appearance. How did the court conclude that? First, because In re Hindi, 71 Ariz. 17 (1950), which had been cited to the court for the proposition that there was no difference, “predates the effective date of the Arizona Rules of Civil Procedure.” Second, because later cases had used the phrase “general appearance.”

How do courts make mistakes like this? We’ve said it before: footnotes too often contain things that have only been half thought through. In this case, the footnote resulted from something said at oral argument, which may mean that it was an afterthought to an opinion that had already been researched and drafted – and which, perhaps, nobody wanted to have to change too much. (Yes, we know we just asked for a footnote in another case but that was a brief, explanatory footnote, not a footnote attempting substantive legal analysis.)

(Don’t understand why the court was wrong? Here’s the deal:)

In In re Hindi, our Supreme Court took judicial notice that there was no difference under the “new” rules between a general and a special appearance. What rules was it referring to? The tip-off should have been the authority it cited for that conclusion: Moore’s Federal Practice. Moore’s has always been about the federal rules of civil procedure, the rules we adopted and have now, which had been promulgated federally in 1938. In re Hindi, in other words, was referring to our present set of rules, not to some earlier set.

The Rules of Civil Procedure, as rules, were adopted in Arizona in 1949, and in large part had been incorporated as statutes in A.C.A. 1939. If you look in the rule book nowadays – which is apparently all the court did – it does say that the rules were effective in 1956. What happened, though, was that the rules were re-adopted in 1956 when the A.R.S. replaced the A.C.A. 1939. A bit tricky, perhaps, but don’t we expect courts to be able to handle these things?

The court also failed to consider that the present rules,  which it suggests established a difference between types of appearance where none had existed before, do no such thing. No rule defines general versus special appearances (except the very recent Rule 5.2 on “limited” appearances in vulnerable-adult matters).

Why have courts occasionally used the phrase “general appearance?” As Kline itself acknowledges, “general appearance” means the same as “appearance.” Lawyers and judges sloppily interchange phrases like that all the time.  That “general appearance” means the same as “appearance” logically  suggests not that there is a “special” appearance but that there isn’t. If they mean the same then the broader “appearance” subsumes the narrower “general appearance,” not the other way around.

(We deliberately left out one reason the court didn’t think In re Hindi applied: because it “has never been cited for this proposition.” Precedent can’t be cited until its been cited? Don’t get us started . . .)