Appellate courts check subject-matter jurisdiction, but sometimes we wonder whether discretion shouldn’t be advised.

Mrs. Plaintiff fell in a Wal-Mart store. She and her husband sued; the case went to compulsory arbitration. They won but wanted more and appealed. They filed their appeal bond – which the statute says is required “at the time of” and “as a condition of” the filing – more than a month later. The trial court denied Wal-Mart’s motion to dismiss the appeal for that reason but later granted it summary judgment on other grounds. Plaintiffs appealed from that. The late-bond problem was therefore not an issue on appeal but the Court of Appeals examined it as, apparently, a jurisdictional issue. On the merits, it affirms in a separate memorandum; it issues this opinion to address “the issue of whether the tardy filing of a cost bond on appeal from compulsory arbitration renders the appeal jurisdictionally defective.”

It holds that a late bond does not make the appeal defective.  Another part of the statute “allows the perfection of an appeal “within the time limited by rule of court.” And Rule 6 says that the court can extend times. “Harmonizing the above rules and statutes, the superior court had discretion to extend the time for perfecting an appeal from compulsory arbitration so the tardy payment of the cost bond is not a jurisdictional defect.”

But that other part of the statute (A.R.S. 12-133(H)) doesn’t talk about the “perfection of the appeal.” It says that you appeal an arbitration award “by filing, within the time limited by rule of court, a demand for trial de novo on law and fact.” That’s the notice of appeal. The very next section is the one that says “at the time of filing the demand for trial de novo, and as a condition of filing, the appellant shall deposit” the bond.  How could it be more clear that the 133(H) demand is conditioned on contemporaneous filing of the 133(I) bond? If the opinion is trying to “harmonize” different parts of the statute, it makes a very unconvincing case. In fact, they’ve already been “harmonized,” by Rule 77(b): “At the time of filing the notice of appeal, and as a condition of filing, the appellant shall deposit” the bond.

And what of Rule 6? Can it, or can Rule 77, somehow “harmonize” the statute into meaning something other than it says? That’s actually an interesting question but is not one this opinion comes anywhere near analyzing.

Instead, the court spends its time explaining why it was wrong in 1977 (Varga) to hold the opposite – that the statute means what it says and Rule 6 doesn’t change it. First, it says, Varga no longer applies because it was based on the rule that, in a regular appeal, the cost bond had to be filed with the notice, a rule that has since been changed. But that was based on rules, not statutes. Next, Varga was wrong because its analysis “was at odds” with the present court’s, which the opinion then restates. Remember, next time you’re in court, to argue that your opponent must be wrong because he’s “at odds” with you.

But the real problem here is: why bother? Why go out of your way to change established, 33-year-old precedent on an issue that hasn’t been briefed and that doesn’t change the outcome of the appeal? If you don’t like Varga, express reservations about it in your memo as an excuse to discuss substance and let people take the hint. But if you’re going to do this anyway, shouldn’t you be much more confident that the precedent is wrong than this court could possibly have been?

(link to opinion)

These two related cases, consolidated on appeal, involve the ecclesiastical abstention doctrine.

They involve a fight about whether a corporate Board of Directors acted properly in hiring a new president, throwing out the minority director who thought him unqualified, later firing the new president, and allegedly misusing corporate funds. The wrinkle is that the corporation was a church and the president its new priest. People divided into pro- and anti-new-priest camps and then both sides showed their faith in the inscrutable judgments of the Almighty by asking Caesar to render one more to their liking.

Under the ecclesiastical abstention doctrine the court does not have subject matter jurisdiction to consider “ecclesiastical matters,” i.e., matters which concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” (How a court can “abstain” from doing something it doesn’t have the power to do is a problem the opinion appears to recognize; it ends up saying, in essence, that “subject matter jurisdiction” means different things depending on what the court says it means. The real answer would be to admit that “abstention” is a misnomer the court is stuck with because of the precedent.)

The opinion carefully explains the history of the doctrine as if it were a rarity. It isn’t something you run into every day but the same court issued an opinion about it in 2002 (Rashedi). And having consolidated the cases for purposes of appeal, it divides them for purpose of the opinion, almost as if it drafted separate opinions and stuck one onto the end of the other.

The doctrine doesn’t apply when “neutral principles of law” are involved. Do these cases involve ecclesiastical matters or neutral principles of corporate law? Ecclesiastical matters, says the court. Why? That’s not clear. A main issue concerns the new priest’s qualifications but the opinion’s 38 pages never explain why this involves church doctrine rather than simple matters of fact – whether he was ordained before a certain date under a certain rite. The other issue involves misappropriation of funds and property. Some of those allegations were dismissed for unrelated reasons but the opinion dumps the rest into the “ecclesiastical matters” category by inventing a defense to them. Although the pleading in question was not well drafted, it says that the defendant “has emptied all bank and financial accounts of the Church, taking the proceeds thereof . . .”  The court decides that the allegations “only prove [sic] that the Board may have changed church bank accounts” and that’s part of the financial affairs of the church that the court can’t look at. But that isn’t even what the language says, much less what it clearly means. And how that can possibly be the right standard of review is another thing that’s not clear.

The court apparently feels that its contribution to the law is to decide that the abstention doctrine applies not only to hierarchical churches (parts of larger denominations) but also to congregational churches (local, independent ones). It analyzes this for several pages (it is one of those that briefs almost every case it cites). While its probably right, those several pages don’t hint at a principal reason for the issue.  These people formed a corporation and drafted lengthy articles of incorporation and adopted extensive bylaws. Nothing else governs their church (it is a Catholic church but is not part of the local diocese). Having gone out of their way to do things established and required only by civil law, was it their intention that that law largely not apply? Perhaps so, and perhaps it shouldn’t anyway, but perhaps also the court could find space to address real problems somewhere among its airy recitations of “insightful and well-reasoned” (that particular one is, by the way, tedious and obscure) cases.

One gets the impression that the court didn’t want theses cases to continue and so devised or accepted reasons, however contrived, why they couldn’t. We mention that sort of thing from time to time because the impressions an opinion gives are important. If that’s not what was going on, its not our fault that what the court said could lead people to think so. It would have been better simply to cite Rashedi – a  superior opinion anyway – and be done with it.

This adds nothing to the law. But the courts need to publish one of these every once in a while to reassure trial judges and to teach/remind/scare lawyers.

Gamboa’s lawyer fouled up his witness scheduling, even after various discussions and agreements about it with defense counsel and the court. As a result, come 5:00 or so on the last day of the evidence he had only been cross-examining the defense expert for 43 minutes when the court stopped him. He objected but didn’t seek to have the witness return the next day and didn’t make an offer of proof of what he expected to show. The jury gave him a lot of money but gave the defendant only 10% of the fault, so he appealed.

After reciting the facts, the court’s entire legal analysis is, quite appropriately, “the court did not abuse its broad discretion.”

Well, not quite the entire analysis since without an offer of proof the plaintiff couldn’t show harm even if there had been error.

Plaintiff’s lawyer made noises about “due process”; they always do. But this has happened many times before and the law is clear. The trial judge doesn’t violate anybody’s rights by putting a reasonable limit on you. Its your burden to prove that it wasn’t reasonable. Its a big one. And its an impossible one unless you make a record.

And, by the way, if you haven’t made all your main points on cross within 43 minutes, fuggedaboudit.