NOTE: THIS OPINION HAS BEEN VACATED

This short and otherwise-routine (though not unimportant) case treats us to a “special concurrence.”

Defendants defaulted on a loan secured by some property. The bank took the property and then sued them for the deficiency. You can’t get a deficiency against property used for a single-family dwelling (33-814). The property was and had always been empty but the Defendants argued that they had intended to build their home on it. The trial court bought that argument and gave them summary judgment.

The Court of Appeals reverses. “In looking at the plain language of the statute, we conclude the protection for “dwellings” under A.R.S. § 33-814(G) does not apply to vacant land.”

Seems simple enough and only takes 4 1/2 pages even with the usual, boilerplate, needless standard-of-review paragraph (that our courts have long since decided is a required element of every opinion).

But one judge has thought of a question. He agrees that the statute doesn’t apply to a vacant lot. But the court ruled in an earlier case (Marshall & Ilsley 2011) that  if you start to build but don’t finish the house, the statute applies if you intended to use it as your dwelling. In that case the house was apparently pretty much complete. So if you start, how far along do you have to get before the court can analyze your intentions?

Once upon a time, this would have been dealt with – if at all, and only had it been a subject of discussion by the parties – by noting that the court would address the issue should some future case present it. This one certainly didn’t. But instead we get five pages “specially concurring.”

What’s a “special concurrence,” you ask, as opposed to a mere “concurrence”? Don’t worry about it; the court didn’t.

And what does it say? Of course its pure dicta – its whole purpose is to inject into the discussion an issue not raised by the case at hand — so as a legal matter it means nothing. Maybe that’s what makes it “special.”

But beyond that it says that the point at which you judge the borrower’s intent is a question of the borrower’s intent, measured by “a totality of the circumstances.” Otherwise it would be a “blurry and artificial line.”

Yes.

But our point is not to parody gibberish. The problem here is that the court has created an opportunity, which this case did not genuinely present, to write an opinion furthering someone’s agenda. Some banking and real-estate practitioners have been critical of Marshall & Ilsley; whether they are right or wrong, this is an active issue in those quarters. The “special concurrence” is a brief – an argument  presented by a partisan (meaning no disrespect, but a judge isn’t acting as a judge when there’s nothing before him to judge; making up things to take sides on isn’t judging them) – arguing that that case is right and should be extended. That’s not a proper, seemly, or appropriate concurrence.

Maybe that, too, is what makes it “special.”

(Later note: We originally blogged this on January 16; when the court issued it. Today, the 21st, it issues it again, without explanation or comment, with today’s date. The only difference we spot is that the new version corrects mistakes in paragraph numbering. Burying mistakes rather than explaining them is now this court’s standard practice.)

(link to opinion)