We blogged the Court of Appeals’ opinion here; go there for the details.
The Supreme Court comes to the same conclusion but vacates that opinion. It says the two things that needed to be said: 1) “we first ask whether the defendant rather than the plaintiff knew or should have known that, absent some mistake, the action would have been brought against him or her” and 2) “We hold unrepresented litigants in Arizona to the same standards as attorneys.”
This is a quiet-title action arising out of some probate shenanigans but we won’t be reviewing that part. Instead we’ll look at the appeal.
The trial court issued a minute entry granting summary judgment in favor of Plaintiffs. Defendant filed two motions to reconsider and then, before they were heard, appealed the minute entry. Plaintiffs moved to dismiss the appeal since it was screamingly defective. But instead the Court of Appeals reacted by staying the appeal until the trial court could sign a judgment. Now it issues this opinion affirming.
The court concludes its summary of the proceedings below by saying “We have jurisdiction for the following reasons. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); Ariz. R. Civ. App. P. 9(c).” (The period after “reasons” is in the original but we won’t make an issue of a simple typo because we can understand how the difference between a colon and a period can slip through the edits, reviews, and corrections that are such an important part of the court’s process.) But next the court points out that it has a duty to check its jurisdiction and then pends four pages explaining why it has jurisdiction. So the sentence with the typo was apparently boilerplate and doesn’t really fit this opinion. What did we say about edits and reviews?
But it does make you wonder. If the jurisdiction issue is so simple that it could be solved with the usual kick-it-back-to-the-trial-court-for-a-signature routine then why does it merit extended discussion here? If it isn’t, did the court think it through first or was its act the knee-jerk reaction of a staff attorney or other functionary and this opinion an after-the-fact justification?
The appeal was obviously premature. The first question is whether Barassi applies. The answer is that it can’t because there were two pending motions.
So the question becomes the meaning of Rule 9(c) (premature appeal treated as filed on day of judgment). Following Camasura (App. 2015), the court decides that it does apply to save the appeal. The order appealed from disposed of all issues and “the trial court ultimately entered final judgment upon it.” And what of those pesky motions to reconsider that came between the order and the judgment “ultimately” entered? They don’t matter because they didn’t change the issues, just the arguments. And because the trial court “summarily” denied them (we’re not told what exactly that meant in this case) the original order was the same one judgment was entered on.
Oh. Okay. So a motion that doesn’t modify the issues invokes 9(c) but one that does doesn’t. As long as its denial was summary. These things will always be clear in practice. After all, as the court points out, one of the reasons for rules like 9(c) is “to accommodate a ‘litigant’s confusion’ about when to file.” We would have suggested that accommodating confusion simply creates more of it but that’s just us.
One thing we’re not clear on, though. The trial court denied the motions for reconsideration after the appeal was filed and before the Court of Appeals revested jurisdiction to get a final judgment. So how did it have jurisdiction to rule on them? And if they’ve never properly been ruled on, how can an appeal lie? Or does 9(c) now mean that a premature appeal is not an really an appeal at all, that it has no effect until judgment is entered? But if that’s true, how does the Court of Appeals have jurisdiction that it must “revest” in order to get a judgment?
In the words of an immortal: Go away, kid, you bother me.
(Opinion: McClearly v. Tripodi)
About defamation and free speech.
Plaintiff and Defendant were rival petition-passers. Plaintiff failed to get a referendum on the ballot because it got caught using felons to pass its petitions. When Defendant cackled about this on Twitter Plaintiff sued him for defamation. (The factual details are mostly unimportant and in any case should, as with so much that happens on Twitter, have been as embarrassing to the tweeter as to the tweetee. We will just mention, to give you an idea of the intellectual and emotional depth of the dispute, that one of the tweets at issue was, in its entirety, “chicken dinner.”) Defendant moved for summary judgment; Plaintiff responded with the lawyerly argument that 1) the statements were “indisputably false” and 2) there was a factual dispute about whether they were true. The trial court granted the motion.
The Court of Appeals affirms. “We . . . hold when ruling on a motion for summary judgment in a defamation case: (1) the superior court must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression; (2) in that role, before allowing a defamation claim to proceed to trial, the superior court must first determine whether a statement is capable of bearing a defamatory meaning by considering all of the circumstances surrounding the statement; and (3) in doing so, the superior court is to evaluate the circumstances surrounding an allegedly defamatory statement from the point of view of a reasonable person.” All of that has been said before (though whether it all fits together in this context is another matter) and isn’t really the holding as much as a statement of principles on which the opinion relies.
“Because this case raises issues concerning the right to free speech, we conduct an ‘enhanced appellate review.’” The courts keep saying that; we wish they would some day tell us what that is. The phrase, taken from U.S. Supreme Court public-figure and media cases, was introduced into Arizona law by someone for whom deep-sounding meaninglessness was a way of life. By what objective standard can we distinguish “enhanced” review from the plain, old, mediocre review given your case and mine? Could the Supreme Court reject such an opinion for the specific reason that the Court of Appeals’ review wasn’t “enhanced”? If so, how could it tell? If not, what meaning does the phrase have? But this opinion is careful to say more than once that it is using “enhanced” review. How do we know? Because it says so.
The court then wanders off to discuss commercial speech for awhile. Defendant’s tweets, you see, might simply be seen as ads for himself. But “when speech has a mixture of commercial and non-commercial elements, the presence of the former does not diminish the constitutional protection of the whole.” So this stuff makes no difference, much less being dispositive, but the court wants to be sure you know that it considered this useless nuance. Maybe that’s part of “enhanced” review.
The court then decides that Defendant’s tweets were, to the extent not substantially true, exaggerations not defamatory in context.
If you thought there was nothing novel here, though, you skipped footnote 3. We agree that skipping the court’s footnotes is harmless 99% of the time but here it is one of the more important parts of the opinion (possibly the only important part). The court had been relying on First Amendment cases; what about the Arizona Constitution? “Arizona’s declaration of rights ‘came essentially verbatim from the state of Washington’s constitutional convention of 1889.’” So the court looks at a Washington case holding that protecting free speech is a two-step process. First, the trial court determines as a matter of law “[w]hether the allegedly defamatory words were intended as a statement of fact or an expression of opinion.” Then it determines “whether [the] statement is actionable by considering the ‘totality of the circumstances.’” The fact/opinion distinction isn’t quite that simple, as cases cited in this opinion point out. And the court doesn’t quite explain whether Washington’s test – now Arizona’s test – is the same as the First Amendment test or something slightly different.
Somebody tried hard on this one, which was clearly intended to be an important and authoritative statement. But you’d be better served reading Milkovich from the U.S. Supreme Court and Turner from ours to get a handle on this law.
(Opinion: Sign Here v. Chavez)
