The Supreme Court has issued this opinion to clear up a point of confusion about service of process in Mexico.

The Lac Vieux Band filed an action in Maricopa County against Mexican nationals. Service in a foreign country, under Rule 4.2(i), must be made according to the Hague Service Convention where it applies; where it doesn’t service is basically by letters rogatory or by the foreign country’s rules, including personal or mail service if it’s legal or by other legal means permitted by the trial court. Mexico is a signatory to the Hague Convention. But the trial judge, on the Band’s ex parte motion, allowed service by a shotgun combination of mail, email, and Fedex (and then approved service despite the Band’s not receiving return receipts or delivery confirmation). The defendants, for reasons not made clear in the opinion (presumably they have assets in this country) appeared to contest jurisdiction and service. The trial court denied their Motion to Dismiss; the Court of Appeals denied special-action review; the Supreme Court accepted it on the service issue.

Parties to the Convention designate a central authority for service of process which, when requested, makes the service; in Mexico this is the Ministry of Foreign Affairs. The Convention also permits certain alternative service methods – through diplomatic channels and by direct personal service –  but allows parties to opt out of those, which Mexico did when it joined the treaty. The problem is that when Mexico filed its joinder the Dutch, with whom such things are filed, asked it for an English or French translation to send out to other countries, and the resulting English translation contains a mistake – it suggests that only direct service through diplomatic channels (rather than all direct service) is forbidden.  This opinion holds that the Spanish version, not the English, controls.

(It could be argued that the original document should have been in French or English – and that the English translation is therefore the operative version – since those are the languages recognized by the Hague treaties of which the Service Convention is a part. That may be what the Dutch were politely trying to tell the Mexicans. Our Supreme Court relied on a U.S. Supreme Court case (Todok, 1930) holding that “for a treaty ratified in French, the French text, not the English translation, controlled.” It isn’t clear why that supports using a language – Spanish – that was not the language of ratification and is not one of the treaty’s official languages rather than a language that was and is. However, the court mostly relied upon a recent law review article from which it appears to have taken the idea that since the Mexican President and Senate dealt with the matter in Spanish, and since the Mexicans had sniffed that the English translation was merely a “courtesy,” that’s that.)

The Band then argued that it was entitled to use a loophole in the treaty: it doesn’t apply when the defendant’s address is unknown. But the Supreme Court simply remanded that for determination by trial court. The purpose of the opinion was to clarify the requirements for Mexican service, not to resolve the case. In fact, the purpose of the opinion seems to have been to adopt a Minnesota law review article as the law of Arizona. The upside of doing that is that its author evidently knew a lot more about international treaties than anyone involved in this case; that is also the downside. 

(link to opinion)

This vacates a Court of Appeals opinion we blogged here. The Supreme Court agrees with the result and most of the reasoning but has some different thing to say about the admissibility of remedial measures under Rule 407.

Johnson’s husband, driving on Highway 60, was killed when he hit a truck near an intersection. After the accident the State coincidentally put up a warning sign; it didn’t know there had been an accident. Johnson wanted to present evidence of this at trial. She argued that remedial measures – to be truly “remedial” and therefore excluded by the rule – must be made in response to a specific event. She also argued that the evidence was admissible under the “other purpose” exception in the rule. The trial court disagreed. She lost at trial and appealed. The Court of Appeals affirmed.

The Supreme Court agrees that Rule 407 does not expressly, nor does the word “remedial” impliedly, require knowledge of an accident. And requiring knowledge could discourage people from improving risks that might have caused accidents they didn’t know about.

As to the “another purpose” argument, Johnson’s other purpose was to rebut the State’s claims that there was nothing wrong with the intersection and that the decedent was negligent. But the “mere fact that a defendant denies fault and alleges comparative negligence does not, alone, justify the admission of subsequent measure evidence for impeachment purposes.”

Remedial-measures evidence can come in, however, to rebut evidence “that, if left uncontroverted, would create an unfair advantage or misleading impression for the other party who seeks to exclude any evidence of subsequent measures.” So, for example, it would have been admissible had the State claimed that signs couldn’t be put in, or that the roadway was as safe as it could possibly be, etc. But the State hadn’t said that. Allowing evidence of the signage would not have impeached impeached anything it did say except its basic position that the roadway was reasonably safe – and the latter is what the rule prevents.

The Court of Appeals had indicated that the “another purpose” exception doesn’t apply if other evidence, not barred by 407, is available to serve the same purpose. The Supreme Court, in a footnote, rejects this but adds that the remedial-measure evidence could then be excluded under Rule 403 instead.

On the knowledge issue, the Supreme Court avoids some analytical confusions in the Court of Appeals’ opinion but the take-away is not much different. The “unfair or misleading” exception to Rule 407 is a new wrinkle, though.

Stylistically, we applaud the court’s decision to mention the standard of review briefly and where necessary (although we would still argue that it isn’t really necessary) rather than in a boilerplate paragraph. The statement of jurisdiction, though even less necessary, is at least brief. This is not at all a bad opinion coming from a Justice whose prose style has not historically been his strong point.

(link to opinion)

This opinion reverses a Court of Appeals decision we blogged last year; see that blog for the facts and issues.

The court agrees with the dissent below. There is no presumption that a roadway easement was intended for public use. One who contends that an easement – whether for a road or anything else – was dedicated to public use must do so by clear and convincing evidence.

(link to opinion)