This opinion is not terribly interesting or important and it comes to the right conclusion. But it contains a summary of law about service by publication, should you need one some day. And there are AzAppBlog-type points to be made.
Plaintiff sued to foreclose a tax lien. He had to serve by publication because he couldn’t find the property-owner. Someone could, though; between the time of the summons’ first and last publication, Defendant bought the property and redeemed the lien.
Redemption after foreclosure begins is permitted but the plaintiff is entitled to attorney’s fees if the defendant “has been served personally or by publication” A.R.S. 14-18206. Plaintiff sought attorney’s fees. Defendant argued that since publication was not complete, service had not been made. The trial court awarded fees, on the theory that “the purpose of the statute is not served by allowing . . . a 30 day grace period to redeem” (which is arguably a side-effect of service by publication in these cases). The Court of Appeals reversed, pointing out that under Rule 4.1(n) service by publication ain’t over until its over. There is no service until the summons has been published all four times and the required affidavit is filed.
And that’s the case. A simple point of law. A short opinion, then, right?
Well, you know it won’t be short enough when it begins by citing three cases for the proposition that review of a legal issue is de novo. We haven’t complained lately about the general uselessness of standard-of-review paragraphs – but they’re still generally useless. Not, we admit, completely so: when they weren’t used (not too long ago, depending on how old you are) there was occasional uncertainty and briefs were filed that fought more about the standard than about the merits. Now they’re required always – and things haven’t changed much. The standard of review should be addressed just as any other legal issue – in other words, when it needs to be because there is some question or debate about it. And if you absolutely have to mention it even though it isn’t an issue, why three cases? Who thought this such a sophisticated and nuanced technicality that we wouldn’t believe it unless they told us three times?
Next comes the discussion of several service-by-publication cases, basically to establish that there is good reason for Rule 4 to say what it says. We also get the usual warning that the courts will do no favors for tax-lien speculators. Twelve pages; with all due respect, its just too much. Nowadays it seems that the courts can’t squeeze anything into less than nine or ten pages.
As for the substance of the case, what the trial judge did is what happens when courts take their eye off the ball. The ball is the statute, not the argument about it. Courts judge what statutes mean by what they say; doing things the other way around is the Legislature’s job. It is of course sometimes necessary to divine legislative purpose. But purported purposes that bring with them helpful suggestions about how a statute can be read to mean what it surely would have said had the Legislature thought about this terrible unfairness to my poor client – those are intended to distract, not enlighten.
(Link to the opinion)