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Batty v. Glendale Union High School District (CA1 6/2/09)

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This is yet another notice-of-claim case, this time involving service of the notice, with a startling feature in a footnote.

Batty was injured at one of the District’s high schools. He served his notice of claim on the school Principal and on the Districts’ Superintendent. The District moved for summary judgment, arguing that they were the wrong people to serve. The trial court granted it; the Court of Appeals affirmed.

The notice-of-claim statute, A.R. S. 12-821.01, requires service on the person who would be served under the Rules of Civil Procedure. Under Rule 4.1, service on a government subdivision is made on the “chief executive officer, the secretary, clerk, or recording officer thereof.” The District had adopted a rule saying that the Superintendant was its “chief administrative officer.”

In Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, the Supreme Court had found that a county manager is not a county’s CEO for purposes of service since the county’s Board of Supervisors, not the County Manger, is ultimately responsible for the operation of the county. The Batty court agreed with the District that the relationship between Board of Supervisors and County Manager is analogous to that between the school district board and its superintendent.

The court speculated that it might be possible for a school district to delegate enough power to its superintendent to create a CEO but decided that it didn’t need to rule on that in this case.

And now for the footnote. At oral argument, the District pointed out that some school districts don’t even have a Superintendent. The opinion mentions that and decides to cite, in a footnote, the authority for it.  That authority is a web site for the Hackberry School District. The Hackberry SD runs a Kingman elementary school and its web site says that it has no Superintendent.

There are several problems with this, perhaps the least of which is that the web site doesn’t say that. At least, it didn’t when we read it. Reading between the lines of what it does say, that might be true. On the other hand, the site says that it has an “Administrator,” whose duties are not described and who, for all we know from reading the web site, is a “Superintendent” in all but name (or maybe, for that matter, even a CEO).

And since when can a court find facts by reading them on web sites? Isn’t it notorious that the web is full of mistakes, omissions, and insanities of every conceivable description? What happened to the rules of evidence? Does the court really mean to suggest that it can, in making and interpreting the laws of Arizona, rely on unsworn, unsubstantiated hearsay so long as it appears on a web page?

We hope not. We like to think that the fault lies with an overzealous and inexperienced clerk and that the footnote would not have appeared had the opinion been adequately edited (which they almost never are). Otherwise, we may be heading into the Post-Evidentiary Age.

(A note to our readers)

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AAB was six months old in May, a milestone we forgot to pay any attention to. When we started, we didn’t know if anybody would find it, read it, or come back again. Given the numbers (the information we get is simply the raw number of site visits in a day/week/month), most people who do find it become repeat customers. Our numbers are not at all large compared to the number of lawyers in Arizona, or even to the number of lawyers in Arizona who know how to use a computer, but its nice to know that at least a few people are interested in what we’re doing. Thanks very much to you all.

You might mention AAB to your partners and friends; word-of-mouth is one of the few ways people can find it.

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State v. Diaz (CA2 5/26/09)

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This is a supplement to an opinion issued in the same case on April 7. We didn’t review that one for reasons alluded to in our FAQ; this one we can comment on.

Diaz was tried for burglary. The jury that convicted him was polled; the transcript of the poll mentions only eleven jurors. Diaz appealed his conviction, arguing that he had a right to have twelve jurors consider his guilt but got only eleven. His counsel had not pointed this out at trial – because, the State argued, there really were twelve jurors and the reference to eleven was a mistake – but the court ruled that it was fundamental error. Because Diaz had a statutory right to twelve and the transcript showed that only eleven had deliberated, the court reversed the conviction.

After that opinion was issued, the State called the court reporter. She checked her notes and prepared a corrected transcript showing that there had been twelve jurors, after all. The State moved to correct the transcript and for reconsideration.

In this supplemental opinion, the court denied both motions. It cited a number of cases for the proposition that if you think that the record is wrong, you have to have it corrected before the appellate court rules.

That, after all, is basic common sense. If you can nip an opponent’s appeal in the bud by simply correcting the record, why put yourself and everybody else through an appeal? Isn’t calling the court reporter the first thing you do, not the last? The court asked the State’s counsel that sort of question; the answers were so dismal that the court quotes them in the supplemental opinion and signals a gentle but enormous displeasure.

But the real problem, of course, is that waiting until after you’ve lost to reveal a “corrected” transcript raises entirely too many questions about how that transcript came about. The sanctity of the record is essential to our legal system. Although neither this opinion nor the original talks much about that, we trust that the court had it in mind.

Judge Howard, who had dissented from the original ruling,  filed a brief dissent. “We now have conclusive proof that the legal principle on which the original opinion in this matter is based is erroneous and should be reconsidered,” says his new dissent. Actually, though, what the corrected transcript purported to show was that the facts were wrong, not that the law was. Its true that whether the error was fundamental is the key here. But whether it was or not, the idea that Diaz shouldn’t have been allowed to raise the argument because we now know he was wrong puts the cart before the horse.