We begin the new year with a criminal case. This one has a constitutional issue but is intriguing mostly because of the odd way it seems to have been handled.

Montes was accused of murder. He pleaded self-defense. The statute put the burden of proving that on him; before his trial the Legislature passed a statute reversing the burden but our Supreme Court had held, in a case named Garcia v. Browning, that it was not retroactive. Montes was convicted. He appealed, arguing a defect (of a type not relevant to this opinion) in the instructions and a sentencing error.

After the appeal had been briefed and submitted, Montes filed a “Motion to Suspend Rules and to Permit Supplemental Briefing on a Significant Change in the Law.” The Legislature had just passed (or was about to, the opinion is not clear), in response to Garcia v. Browning, a new law making retroactive its reversal of the self-defense burden of proof. The Court of Appeals denied the motion and, about two weeks later, issued a memorandum opinion affirming the conviction and sentencing. (You might not find it using links at the right, as the court apparently pulled it from the memo list when this opinion was issued even though this does not supersede it; perhaps the court will rethink that, in the mean time this link may work for a while. This opinion’s description of the sequence of events, by the way, is vague, so we’ve looked at the on-line file to check the dates.)

Montes moved for reconsideration, again arguing the new retroactivity statute, which came into effect a few days thereafter. This opinion was written in response to that motion, is called an “Opinion,” considers the retroactivity issue that the court had earlier refused to consider, concludes that the retroactivity statute is unconstitutional – and then announces that it is denying the Motion for Reconsideration.

The opinion realizes that it first needs to explain why the court didn’t simply grant the motion for supplemental briefing in the first place. The court admits that it had the power, and good reason, to do so. But, it says, “it would have been inappropriate to presume an outcome of the appeal or extend or accelerate the processing of the case based on the impending effective date of the new statute. Furthermore, it would have been inappropriate to presume what the parties would do if the case were decided before the effective date.” What does that mean? Well, whatever it means, we shouldn’t have to figure it out. If the court had coherent reasons for denying the motion then the opinion should state them coherently, so that the profession can be appropriately guided; instead we get obscure murmurings that beg more questions than they answer. Perhaps, though, the court meant this: “When Montes asked to file supplemental briefs we hadn’t even begun to think about the case, so maybe we would have reversed even without his supplemental briefing. Besides, we didn’t want to have to read any more briefs like the first one he filed [which the memo opinion criticized].” Perhaps it also meant “We weren’t sure whether we could or should consider a statute that hadn’t gone into effect yet.” And maybe it meant “We thought the parties might cut a deal after our opinion and the case would go away.” Or maybe not. Maybe it meant “since we work to deadlines around here, we wanted to get something out the door even if we would have to put something else out later.” And maybe its just the court’s way to say “we changed our minds” or “we goofed” – or, rather, to avoid saying either.

As for the constitution, the Supreme Court held in Murray, 194 Ariz. 373, that the Legislature can’t undo a judicial decision by amending a statute retroactively. That’s a violation of the separation of powers. It makes no difference that someone claims that the amendment merely “clarified” earlier legislative intent. The self-defense-retroactivity statute therefore didn’t change the law of Garcia.

The court concludes that because he was properly convicted, “We deny Montes’s (sic) motion for reconsideration.” We’re always eager to learn: is there a rule or case somewhere that makes the definition of “reconsideration” outcome-oriented? The only way we can understand the disposition is to assume that reconsideration isn’t officially considered “granted” unless its effect is to change the result. It is otherwise hard to figure how the denial of a post-opinion motion could result in another opinion (rather than an order) that considers for four pages the substance of the issues that the motion asked the court to consider. We, perhaps in simple ignorance, would have said “the Motion for Reconsideration is granted; the conviction is nevertheless affirmed.”

This case shows that you can’t just phone it in.

This was an auto accident case; the only issue was damages.  Plaintiff didn’t do a Pre-Hearing Statement; Defendant did one unilaterally. Plaintiff didn’t attend the hearing; her lawyer did so only by telephone. When she tried to appeal the resulting award Defendant argued that she hadn’t participated in good faith (Rule 77: failure to participate in good faith waives the right to appeal absent a showing of good cause). The Superior Court and the Court of Appeals agreed.

When compulsory arbitration was new (if you remember this, please don’t get impatient; its amazing to people who do how many people nowadays don’t), some lawyers had the idea that the way to get around it was to ignore the hearing and then to appeal the award. This perhaps had its origins it attempts to circumvent earlier quasi-judicial procedures such as the medical liability review panels (okay, we admit it, almost nobody remembers those any more). So the rule became that you had to participate in good faith. This was used mostly to try to beat defendants over the head since, in routine tort cases (which are the bulk of the arbitrations), it can be a pain to get the defendant to the hearing or to get his cooperation or even, for that matter, to find him. Eventually, the cases realized (though not all plaintiffs’ lawyers have read them) that a defendant’s personal appearance is not necessary when his testimony isn’t significant to the issues.

Plaintiff’s argument was that the substance of her testimony was all in her medical records, which Defendant had submitted to the arbitrator. If Defendant for some reason specifically wanted her there, he should have subpoenaed her (as one of the cases suggests plaintiffs need do for defendants). (Her counsel had told defendant’s counsel – the day before the hearing – that she would not be coming).

The first problem with that is that the Superior Court’s minute entry dismissed her appeal because she “failed to participate in good faith with the scheduled Arbitration Hearing,” not merely or specifically because she didn’t attend it. Her lawyer apparently never gave anybody any good reason for not cooperating in the preparation of the Pre-Hearing Statement.

The second problem was that even if her non-appearance was the reason for the ruling, the failure of a plaintiff to attend can be a bigger deal than the failure of a defendant. “The lack of good faith participation is more plain when the recalcitrant party bears the burden to prove their right to relief.” Therefore, “a plaintiff with the burden to prove personal damages must present relevant evidence and cannot later claim that the defendant should have objected to the plaintiff’s evidentiary decisions or should have attempted to secure arbitration witnesses for the plaintiff.” In addition, in this particular case there was an issue of distinguishing between pre- and post-accident medical problems that Plaintiff’s testimony could have shed light on.

The court therefore concluded that the trial court did not abuse its discretion by finding that Plaintiff failed to arbitrate in good faith.

(And now a brief note on usage. This opinion call the arbitrator an “arbiter.” It may be too late to do anything about this trend but we want to say that we tried. In the best of all possible worlds, “arbiter” would be held to its earlier connotation of someone privately selected. There is etymological and dictionary support for its broader use – the sort of thing people would laugh at if they didn’t want to use it more broadly – but we would have thought the legal profession open to subtle distinction. We would also have thought that it would use the word (“arbitrator”) that the Rules use – especially after using the word “waiver” to describe a forfeiture presumably because that – for some inscrutable reason – is the word that Rule 77 uses. In the real world that we live in, though, the homely but useful “arbitrator” may be down for the count.)

NOTE: THIS OPINION HAS BEEN REVERSED

We write this on Christmas Day because Division Two has given us a present: a case containing a citation from “Ariz. Terr. 1895.” To those of a certain turn of mind this is warmly comforting and deeply satisfying – as if we had, finally, after wandering though a cold, bleak house, found the room where the fireplace glows and the tree glitters and the hot chocolate steams in its mugs. The old-fashioned lawyer rejoices to find that in at least some areas of the law “common law” and “precedent” still refer to something more than recent sociopolitical invention. Even if the precedent is cited wrongly.

This is a case about easements to real property. A dirt road ran across the property, connecting public roads to the northwest and southeast. Over the years the owner sold the property piecemeal – first the eastern part of the property, then the middle, then the western. The first two deeds were subject to an easement for the dirt road, that for the western part included “an easement over” it. The purchaser of the middle property later sold it to the Dorseys, who decided to block the road. Neighbors sued, claiming an easement, and the trial court granted them summary judgment.

This sort of thing happens surprisingly often in Arizona. People buy a piece of semi-rural property and plan their dream home before finding out that somebody claims an easement over that little dirt track that runs right through where their living room was going to be. Its often a prescriptive easement, so it doesn’t show up in the deeds. Why this appurtenant easement didn’t the opinion doesn’t explain; it does mention that the Dorseys filed a third-party claim against their seller because she allegedly hadn’t told the about the easement, it doesn’t mention why they didn’t also sue their title company.

The interesting thing about this case, though, is that the neighbors who sued were not the owners of the eastern and western portions of the original property. Instead, they owned “neighboring” parcels (we aren’t told just where they were in relation to the Dorseys; an older tradition of opinion-writing would have included a copy of one of the maps in evidence but perhaps that isn’t possible or practical – or cost-effective for the publishers – in the electronic age). The neighbors had to prove that they were beneficiaries of the easement – in other words, that the original owner had intended to dedicate the roadway easement to public use.

Usually, doing that means proving it by “clear and unequivocal” evidence. But trial court and the Court of Appeals’ majority held that when the easement concerns a road there is a rebuttable presumption of public intent (this is where we get Evans v. Blankenship, 4 Ariz. 307, 39 P. 812  (Ariz. Terr. 1895)) and that no sufficient evidence rebutted the presumption in this case (mostly, it seems, because the original deeds didn’t specifically say that the easements were private).

The dissent, which is longer than the majority opinion, argues that that isn’t the law. It contends, in essence, that the cases on which the majority relies either didn’t address this issue or dealt with roadways clearly designed, platted, and/or marked for public use. It also argues that since an easement is presumed to be for the benefit of the grantor, all that the evidence shows is that the original owner wanted to keep, for himself and his successors on the western portion of the property, the right to use the dirt road across the rest of it to get to the public road on the other side.

The dissent surely has the better of the argument. Proving public use requires more evidence, not less. To suggest that public access over private property is either the legal norm or the default intent is strange indeed. If every dirt road on a private survey map is public unless somebody expressly said that it wasn’t then a lot of us could drive through a lot of people’s living rooms tomorrow.