anonymous services

[Eric]

>Photo tickets are extremely easy to beat. The catch there is that the
>lawyer will likely cost more than the ticket. The second catch is that
>judges are experienced enough in confusing defendants that if you do
>not contact a lawyer, and the correct officers show up to testify
>against you, you WILL lose unless you yourself are a lawyer or have
>spent months research applicable laws and have taken time out to watch
>similar cases be won and lost (again, the time involved costs far more
>than the ticket)


I would disagree with you.  Anyone who wants to be photo radar should become
familiar with this case.  It's soooo easy.



Arizona State Appeals Court on Photo Radar

Jeffrey J. TONNER, Plaintiff-Appellee, v. PARADISE VALLEY MAGISTRATE'S COURT
and Hon. Lester Penterman, a magistrate thereof, Town of Paradise Valley, a
municipal corporation, and the State of Arizona, Defendants-Appellants

No. 1 CA-CV 90-429
Court of Appeals of Arizona, Division One, Department C
171 Ariz. 449; 831 P.2d 448; 1992 Ariz. App.
May 12, 1992, Filed


JUDGES: Bolton, Judge.1 Contreras, P.J., and McGregor, J., concur.

OPINIONBY: BOLTON

Defendants-appellants appeal from a superior court judgment vacating an
order of civil sanction entered by the Paradise Valley Magistrate's Court on
a civil traffic complaint issued to plaintiff-appellee Jeffrey Tonner.
Appellee filed a special action in superior court to vacate the order of
civil sanction, arguing that the Paradise Valley Magistrate's Court lacked
personal jurisdiction when it entered a default judgment against him. The
superior court judge found that service by mail under Rule 4.1(c) of the
Arizona Rules of Civil Procedure (formerly Rule 4(e)(7)) was not completed
prior to entry of judgment and that the judgment entered was void.

On February 11, 1990, the photo radar device operated by the Town of
Paradise Valley detected a vehicle registered to General Motors Acceptance
Corporation ("GMAC") traveling at an alleged speed of fifty-six miles per
hour in a forty mile per hour zone. A summons and Arizona traffic ticket and
complaint were mailed to GMAC alleging a violation of Ariz.Rev.Stat.Ann.
("A.R.S.") @ 28-701 (1989), driving at a speed greater than is reasonable
and prudent. GMAC forwarded the summons and complaint to appellee and his
wife, the lessees of the vehicle. GMAC also sent the Paradise Valley
Magistrate's Court a copy of its transmittal letter to appellee. The summons
and Arizona traffic ticket and complaint were reissued, naming Tonner as
defendant and the vehicle's driver at the time of the alleged violation of
section 28-701.

On March 7, 1990, a copy of the summons and Arizona traffic ticket and
complaint and two copies of the notice and acknowledgment of receipt of
summons and complaint were sent by first-class mail to appellee with a
return, postage-paid envelope. The summons directed appellee to appear on
March 22, 1990, in the Paradise Valley Magistrate's Court. Appellee never
signed and returned the notice and acknowledgment of receipt of summons and
complaint nor did he appear on March 22, 1990. On that date, based on
appellee's failure to appear, the allegations of the complaint were deemed
admitted, and an order of civil sanction was entered against him. The Town
of Paradise Valley argues on appeal that use of first-class mail for
delivery of a summons and complaint is sufficient for service and to obtain
personal jurisdiction over defendants in civil traffic matters. We disagree.

The requirements for service under Rule 4.1(c) are clear. A summons and
complaint may be served by first-class mail along with two copies of a
notice and acknowledgment of receipt of summons and complaint and a
postage-paid return envelope, but service is not complete until the
acknowledgment of receipt is executed. Ariz.R.Civ.P. 4.1(c)(1), (2). If the
acknowledgment of receipt is not executed, service is not complete under
this method even if there is evidence that the summons and complaint were
received. See Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-42 (9th
Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699
(1989). Until service is complete, no personal jurisdiction is obtained, and
any judgment entered is void. Endischee v. Endischee, 141 Ariz. 77, 79, 685
P.2d 142, 144 (App.1984); Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d
68, 71 (App.1980).

Appellant argues that requiring execution of the acknowledgment of receipt
creates a conflict with A.R.S. @ 28-1076 (1989) because that statute
requires the civil traffic complaint to state a time and place for
appearance before the magistrate, and if the person summoned fails to
appear, the allegations of the complaint will be deemed admitted, a judgment
in favor of the State will be entered, and a civil sanction will be imposed.
We find no conflict between Rule 4.1(c)(2) and A.R.S. @ 28-1076. Section
28-1076(D) provides that a "person served with a civil traffic complaint"
must appear at the time directed or "the allegations in the complaint shall
be deemed admitted and the court shall enter judgment for this state."
(Emphasis added.) To serve a civil traffic complaint, the State must comply
with A.R.S. @ 28-1073 (1989), which requires service "by delivering a copy
of the uniform traffic complaint citation to the person charged with the
violation or by any means authorized by the rules of civil procedure."
A.R.S. @ 28-1073(A).

Appellant attempted service by mail under Rule 4.1(c) by complying with the
requirements of Rule 4.1(c)(1). Without a defendant's voluntary complaiance
with the requirements of Rule 4.1(c)(2), service is not complete, and no
personal jurisdiction over a defendant is achieved. In that event, a
plaintiff may attempt service by any other method authorized by Rule 4.1
with the costs of service shifted to the defendant who failed to execute and
return the acknowledgment of receipt. Ariz.R.Civ.P. 4.1(c)(3). Nothing in
section 28-1073(A) eliminates or modifies any steps required to complete
service. Section 28-1076(A)'s requirement that the summons state a time and
place for appearance and section 1076(D)'s provision that failure to appear
shall be deemed an admission of the allegations in the complaint, requiring
the court to enter judgment for the State and impose a civil sanction are
not inconsistent with the rules for service by mail or the rules for service
by any other means authorized by the Rules of Civil Procedure.

The appellant's recourse when a defendant fails to execute the
acknowledgement of receipt is to continue the hearing and serve the
complaint by some other authorized method. See Ariz.R.Civ.P. 4.1(c)(3).
Until the magistrate's court obtains personal jurisdiction, it has no power
to enter an order of civil sanction against a defendant. See Endischee, 141
Ariz. at 79, 685 P.2d at 144; Kadota, 125 Ariz. at 134, 608 P.2d at 71.

We agree with the superior court judge that the order of civil sanction
entered against appellee by the Paradise Valley Magistrate's Court is void
for lack of personal jurisdiction. We affirm the judgment of the superior
court.

Footnotes

1. Note: The Honorable Susan R. Bolton, Maricopa County Superior Court
Judge, was authorized to participate in the disposition of this matter by
the Chief Justice of the Arizona Supreme Court pursuant to article 6,
section 3 of the Arizona Constitution.