Yet another case about appeal procedure. This one discusses, tediously, the Barassi rule.

An unsigned minute entry granted a motion to dismiss. Plaintiff responded with a notice of appeal, before the Judgment was submitted and signed, and did not file another notice afterward.

Under Barassi, as explained by Craig, a premature notice is okay if no motion is pending, so that “the only remaining task is merely ministerial.” CA1 thinks the “merely ministerial” language a problem since a minute entry can always be changed prior to judgment. It decides that the Supreme Court didn’t really mean what it said and that Barassi applies when there is no motion pending. If there is, “the ruling of the court could change and the remaining task would not be merely ministerial.”

(That means, you might be thinking, that if no motion is pending then the entry of judgment is indeed merely ministerial. But if that’s right then the court has just spent several pages pointlessly chasing its tail. So that can’t be right, can it?)

In any event, since there was no motion pending Barassi applies to save the appeal. The fact that one defendant hadn’t been – and never was – served doesn’t change that; “unserved parties are not ‘parties’ within the rules.”

The dissent disagrees with that. Plaintiff still had time to serve the other defendant when he filed the notice of appeal (he had received an extension of time for service). “This possibility means the final decision could change,” though the dissent does not explain how. 

The majority opinion manages to be over fifteen pages long. One good edit could have saved some of those merely by not saying the same thing more than once. Eliminating the long, irrelevant footnote would also have helped (though there is only one). And the court takes the time to explain that this was a prisoner’s suit against some guards; pop quiz: how exactly does that affect the operation of Barassi?

But the court apparently raised the issue on its own (we’ll assume that the AG’s office spotted it but figured that Barassi applied). Decisions sua sponte tend to look like this – unfocused, at once both naïve and hyper-technical. Craig did say that Barassi was limited to its facts and Barassi was slightly different (the appeal was from denial of a motion for new trial), so perhaps the court was nervous about it; it does “invite the Arizona Supreme Court to further clarify [sic]” the rule, “if necessary.” Courts, though, are much better at responding to issues briefed by litigants than at going it alone.

(link to opinion)