American Asphalt v. CMS, L.L.C. (7/1/11)

This little opinion is important and the court has gone out of its way to issue it.

American sued CMS in Maricopa County. The court issued a 150-day order; American did not move to set (because of a mix-up involving change of counsel); the court dismissed. American, after moving unsuccessfully under Rule 60(c), appealed. The Court of Appeals affirmed. The Supreme Court reverses.

For those outside Maricopa County, a 150-day order says that if there is no appropriate activity a case will, without further notice, go inactive on date X and be dismissed on date Y. The catch is that Rule 38 requires written notice when the case goes inactive. American argued that the 150-day notice, issued long before then, didn’t comply with it. The Supreme Court agrees.

But American loses anyway. The judgment of dismissal was not void ab initio (since the trial court had jurisdiction to enter it, albeit wrongly) and since notice is only one factor under 60(c). The court remands, “in an excess of caution,” signaling the trial court to change its order to say that the 150-day order was not the dispositive factor.

In other words, the only reason the court took this case was to tell the counties that “local practices must comport with and cannot supplant the rules of civil procedure.” The appellate courts have had to say this several times in the last fifteen years or so, all part of the ongoing war with the bureaucrats (with which we include some judges) in Maricopa and, to a lesser extent, Pima counties. This isn’t the only thing these counties have done (and still do) to end-run rules of procedure they’ve decided they don’t like but don’t want to bother trying to change in the proper, legal way. And when told that they can’t make it the rule to not follow the rules they started making it the “policy” instead and had to be told – actually had to be told in an appellate opinion – that that isn’t right, either (Jonah T 1999). (Note that the quote given above is careful to use the word “practices.”) Not that it did any good, as they have had to be told these things again since then (e.g, Ballinger 2004) and as we could point to polices right now that exist for the very purpose of nullifying rules.

Perhaps that context explains the court’s decision to allow the Committee on the Superior Court – a part of the Judicial Council – to appear as an amicus in this matter. That’s presumably also why the court treats with apparent respect a hairsplitter of an argument it would laugh you out of court for. And why it is quite delicate toward the 150-day order (“we do not disapprove of Maricopa County’s 150-Day Order, which provides useful advance notice to counsel”). How a subcommittee of a court committee can be an independent party in a judicial proceeding is unexplained but the point was apparently to let some trial judges get their two cents in. The problem is that the Judicial Council, despite the varied views of its individual members, is a creature of the court. No doubt the court is its own best friend but to advise itself by letting a part of itself dress up like a party before it and argue against real litigants is troubling. If this goes on there eventually won’t be room for real amici, or for lawyers, or for anybody else.

(link to opinion)