Author Archives: unknown

Andrew R. v. DES (CA1 1/14/10)

Posted on by

This custody dispute illustrates a problem with statutory interpretation and drafting.

When Jocelyn’s child was born, she and her boyfriend Andrew signed an acknowledgement of his paternity. Under the statute (25-812), this results in the entry of an order by the clerk that has the effect of a judgment of paternity.

The statute says that the acknowledgement can be rescinded within sixty days and that a party “may challenge a voluntary acknowledgment of paternity . . . at any time after the sixty day period only on the basis of fraud, duress or material mistake of fact” under Rule 60 (though the statute now says “Rule 85 of the family law rules of procedure,” the family-law folks having decided that they need their own rules even if those duplicate the standard rules).

Eight months later, now in a custody battle with Andrew (and the DES, the State having taken the child for various reasons), Jocelyn filed a Rule 60(c) motion to set aside Andrew’s acknowledgement. Andrew opposed it. (And there you have the facts you need; for some reason, but predictably nowadays, the opinion goes into entirely unnecessary detail about Jocelyn and Andrew’s sordid and sorry lives.)

Rule 60(c) (and Rule 85(c)) motions may be made no more than six months from the entry of judgment. So, was Jocelyn’s challenge made too late?

The trial court thought not, because someone had mentioned that there might be a paternity question in earlier hearings in the custody case, at least one of which was within the six months. The judge granted Jocelyn’s motion on grounds of fraud (the theory apparently being that neither she nor Andrew really thought he was the father, or that they thought he might not be the father, or some such) and ordered genetic testing.

The ruling on a 60(c) motion is appealable because of 12-2101(c), which the court should have mentioned but didn’t, instead giving useless, boilerplate cites as the basis of jurisdiction. Statements of jurisdiction are, like statements of the standard of review, just boxes for opinion-drafters to check; actually thinking about them is optional and rare. The standard-of-review discussion here is also a mindless copy-and-paste job.

A majority of the Court of Appeals reversed the trial court, concluding that six months is six months and that eight months is not six months. Mentioning something in court hardly counts as making a motion raising the issue. The trial court should therefore have denied the motion.. The dissent argued that the statutory language “at any time after the sixty day period” means that a challenge under the statute is not limited to six months. That actually isn’t a bad argument since the court has a duty to try to make the words “at any time” mean something, with the result that the majority and dissent throw 27 pages of arguments back and forth at each other. One might argue, though, that they never really boil down to much more than “that’s what the statute says because that’s what it says to me.” The dissent thinks that genetic testing is the better way to do things, anyway; the majority replies that the statute allows people to get a test if that’s the way they want to do it.

The culprit here is a technical drafting problem with the statute. Integrating a court rule into a statute is a bad, bad idea that is, unfortunately, not unique to this one. Just what the interplay between the two is supposed to be – especially where, as here, somebody has (unthinkingly, we think) added superfluous words – and what happens when anyone wants to change either are endless arguments just waiting to happen. It can also raise delicate questions about the balance between court and legislature – which, thankfully, this case didn’t.

In the Matter of Alejandro Lazcano (1/8/10)

Posted on by

This ruling on an application for admission to the bar is one of those when-can-criminals-become-lawyers cases.

Lazcano was charged with burglary and sexual assault while in college in 2002.  He pled no contest to attempted sexual assault and, under a Texas procedure called “deferred adjudication,” was given ten years probation and community service and registered as a sex offender. In 2008 – having while on probation gone to law school, graduated, and passed the Arizona bar exam – Lazcano applied to become a lawyer.

To join our bar a convicted felon must show his rehabilitation by clear and convincing evidence. Rehabilitation means that he accepts responsibility for his crime and has “identified and overcome the weakness” that led to it. So, to prove his rehabilitation to the Character and Fitness Committee Lazcano explained that a terrible mistake one drunken night was that of a foolish youth, for which the mature and remorseful man sought genuinely to atone by committing his life to the law – right? Not quite. Instead, he used the “she wanted it” defense.

And the Committee bought it. It decided – based, it seems, on what Lazcano told it and on his interpretation of a police report – that “the initial report of non-consensual sexual relations may not be reliable.” It recommended that Lazcano be admitted.

So, the court had to tell the Committee that its job was not to re-try criminals. “The Committee should instead accept that the defendant has been found guilty beyond a reasonable doubt, either by verdict or plea.” 

The court then decided that “individuals currently on Texas deferred adjudication are not eligible for admission to the Arizona State Bar until they have completed their probationary term and can demonstrate complete rehabilitation.” People on probation can’t become lawyers (at least generally, it seems, although the holding here applies only to “Texas deferred adjudication”), people who are already lawyers would be suspended if they copped the plea Lazcano did, and public confidence in lawyers’ “exemplary moral character” might be just a teensy bit compromised by letting in a registered sex offender on probation. As soon as his probation is up, though, he can try again.

We don’t know Mr. Lazcano and we trust that, regardless of his past, he is in fact a fine fellow. In any event, if it were true that only those of “exemplary moral character” could become lawyers then some of the cases cited in this opinion would have had different outcomes. What we can’t explain is how the Character and Fitness Committee – which is supposed to have on it not only lawyers but also sensible people – could decide that a fellow on probation can become a lawyer by denying his crime, and that a plausible denial can be based on half the evidence.

Ritchie v. Salvatore Gatto Partners, L.P. (CA1 1/5/10)

Posted on by

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)