Raising the question of when a seal is not a seal – or, rather, of when a not-seal is a seal.

Husband, using Wife’s power of attorney, transferred their property to Son. Husband then died and Wife sued Husband’s estate and Son because of that transaction seeking, among other things, to quiet title. On that count her argument was that the deed to Son was no good because it wasn’t properly notarized. The trial court agreed and granted partial summary judgment.

The Court of Appeals reverses. 33-401 requires that a deed be notarized. The problem was that the notary used her embossing stamp (the metal crimping tool) rather than her official seal (the ink stamp). 44-321 says the former isn’t official and can’t be used without the latter. The court makes an end-run on the argument using the Uniform Recognition of Acknowledgments Act (33-501ff). These statutes exist to allow Arizona to recognize notarization and similar acts performed in other states; for the most part that’s what they speak to. But 33-506 adopts “short forms of acknowledgement” that “are sufficient for their respective purposes under any law of this state.” Those forms don’t require any seal at all, just the notary’s signature, title, and serial number. 33-507 says that ”this article provides an additional method of proving notarial acts.” Because this notary used one of the short forms the court holds her acknowledgment valid.

So 33-506 means that seals are optional if certain information – a subset of that required by the notary-public statutes – appears. And those statutes now mean that notaries must use the official seal except when they needn’t (same for “my commission expires”) and that the embosser can’t be used without the official seal except when it can. It would have been nice to see the opinion address the relationship between these statutes rather than to decide that 33-506 trumps the others because . . . well, just because. (Its possible, at least on paper, to reconcile them; whether that’s what the legislature had in mind is another matter.)

It appears that reliance on the Uniform Act may have been the court’s idea, that the defendants argued something else. That may be why the analysis isn’t more developed and for that matter why the opinion feels free to cite to secondary sources – the A.L.R. (do people still use that?), for example, and a form book.

This notary’s confusion is not excusable (the statutes used to be pretty clear and the Secretary of State’s office tries to help) but is perhaps understandable. The big, heavy, ornate embossers seem like they should be the official seals. And once upon a time they were, when used to emboss colored stick-on discs, stars, etc. But then copy machines became ubiquitous, leading to the problem that indentations in paper don’t always reproduce well. So the lowly ink stamp became the only official seal.

(Link to opinion: Larmer v. Estate of Larmer)

The court holds the statutory defense of intoxication constitutional.

Plaintiff and Defendants were spectators at a hockey game who got into a fight. Plaintiff sued for injuries. The defenses included 12-711: the jury “may find the defendant not liable” if the plaintiff was under the influence and “at least fifty per cent responsible for the accident.” The jury returned a general defense verdict. Plaintiff appealed, arguing the constitutionality of the defense. The Court of Appeals affirms.

Preliminarily, Defendants argued that the court needn’t reach the issue since the jury could have based its verdict on one of their other defenses. The opinion dismisses that in a footnote which, while correct in its result, is mostly misleading. It first cites a case that, rather than doing or saying what this opinion claims it did, specifically declined to address the issue. The footnote never mentions the general rule, which has long been that general verdicts don’t save defective instructions; Defendants’ point was presumably that the rule shouldn’t apply when it would force the court to address a constitutional issue. The court cites a case that did apply the general rule to unconstitutional instructions but manages to make it sound as if the rule applies only to constitutional issues rather than even to constitutional issues. 

Substantively, the court rejects Plaintiff’s argument under Art. 18  §5 (contributory negligence is for the jury) because the statute is permissive – the jury “may” find for the defendant. “Statutes that . . .  allow the jury to exercise discretion in deciding the existence and effect of a plaintiff’s negligence will not run afoul of Article 18, § 5.”

Plaintiff also argued Art. 18 §6 (abrogation). The court cites, inter alia, Romero (2005) in which Division Two addressed the same issue (that plaintiff having neglected to raise Art. 18  §5 in the trial court). The statute “does not bar a plaintiff from pursuing any claim, remove the question of liability from the jury, or require a jury to take a particular action.”

Plaintiff argued that the statute is void for vagueness because it does not define “under the influence.” “A statute is void for vagueness if it does not give a person of ‘ordinary intelligence a reasonable opportunity to know what is prohibited and fails to contain explicit standards of application to prevent arbitrary and discriminatory enforcement.’” Arizona has used the phrase “under the influence,” and has defined it as intoxicated “in the slightest degree,” since the 1920s. “Arizona courts have consistently recognized that people of ordinary intelligence are able to understand what intoxicated in the slightest degree means.” It isn’t clear whether this jury was instructed on “slightest degree” but Plaintiff appears to have argued that even such an instruction wouldn’t work because that’s now a statutory DUI standard and wasn’t adopted by 12-711. “[Plaintiff’s] argument ignores the essential point  . . .   that “under the influence” is commonly understood to mean intoxicated in the slightest degree.”

Plaintiff also argued that the statute was vague because “under the influence” “may mean different things to different people.” But “[a]s long as a statute allows a person of ordinary intelligence to reasonably understand what is prohibited or required and does not allow for arbitrary or discriminatory enforcement, it will not be considered unconstitutionally vague even if it is susceptible to [sic] different interpretations.”

Finally, Plaintiff argued that there was no blood-alcohol test so he should get a presumption of sobriety under the DUI statutes (in other words, he apparently argued both that the DUI laws don’t apply to 12-711 and that they do). But 12-711 doesn’t require blood alcohol and there was plenty of other evidence that Plaintiff was drunk.

In what has become an old-fashioned move, we’re glad to say, the court addresses other, non-constitutional arguments in a separate memo. But they were junk arguments that we would ignore anyway and a slimmer opinion might be of convenience here since the Supreme Court may want give us its own take on this even if it agrees with the result.

(Opinion: Franklin v. Clemett)