Written by Under Arizona law, in order for the court to have “power” over an individual, the court must obtain personal jurisdiction. In the case of a “civil traffic” citation, that means you must have been personally served with what amounts to a “ticket”. This means, a copy of the ticket was handed to you personally, or at least, personally delivered to a responsible adult in your home.
Specific rules of court (the Arizona Rules of Civil Procedure [Ariz.R.Civ.P.], which apply to civil traffic cases) reflect this requirement: Rule 4.1(d), Ariz.R.Civ.P. requires personal service upon an individual.
Alternatively, Rule 4.1(c) provides for another process by which the State may obtain from a defendant, and file with the court, a waiver of service. This has certain additional requirements. A careful review of the violation notice commonly received by defendants in photo radar cases will quickly show that it is, in fact, a request for a waiver of service.
In order to properly waive service, defendants must sign the waiver under penalty of perjury. “If the acknowledgment of receipt is not executed [signed], service is not complete under this method even if there is evidence that the summons and complaint were received. Until service is complete, no personal jurisdiction is obtained, and any judgment entered is void.” Tonner v. Paradise Valley Magistrate’s Court, 171 Ariz. 449, 451, 831 P.2d 448, 450 (App. Div.1 1992) (internal citations omitted).
Whether a defendant fails or refuses to execute a waiver is immaterial. “[A]ctual service is not complete under Rule 4.1(c) when the party to whom service is directed either fails, refuses, or is never given the requisite opportunity, to execute a formal ‘notice and acknowledgment of receipt … under oath or affirmation.’ The fact that [the party's] attorney may have advised [the party] not to respond does not cure the defect.” Postal Instant Press, Inc. v. Corral Restaurants, Inc., 186 Ariz. 535, 538, 925 P.2d 260, 263 (1996), opinion supplemented on reconsideration 187 Ariz. 487, 930 P.2d 1001.
Without completed service, the court does not obtain jurisdiction. “The incomplete service left the trial court without jurisdiction, i.e., without authority to enter the judgment.” Id., Supplemental Opinion, 187 Ariz. 487, 488, 930 P.2d 1001, 1002.
It is important for a defendant to bring this defect to the attention of the court at the first practical opportunity (in civil traffic cases, this usually means at the first hearing), because a failure to raise a lack of personal jurisdiction due to a defect in the service of process is deemed waived if not timely raised.
Importantly, once a defendant has timely raised the personal jurisdiction issue, the prosecution bears the burden of proof. “Once the existence of personal jurisdiction is challenged, the party asserting jurisdiction has the burden of establishing it.” Lycoming Division of Avco Corp. v. Superior Court of Maricopa County, Ariz.App. 150, 152, 524 P.2d 1323, 1325 (App. Div.1 1974). It would blur the lines between prosecutor and judge, once this issue has been raised, for the court to argue for the existence of personal jurisdiction in place of the prosecutor, and if this should happen, a timely objection should be made on the record.
Rule 12(b)(5), Ariz.R.Civ.P., allows for a dismissal of the complaint when service of process is not complete, and without jurisdiction, dismissal is really the only proper cure.
Rule 12(b)(2), Ariz.R.Civ.P., sets forth that lack of personal jurisdiction is a separate basis upon which the matter must be dismissed. Moreover, lack of jurisdiction renders any judgment entered legally void, and the court, when apprised of the lack of personal jurisdiction, should immediately terminate the proceedings and prohibit the prosecution from continuing without personal jurisdiction.
A court abuses its discretion if it reaches a conclusion without considering the evidence, or it commits a substantial error of law, or “the record fails to provide substantial evidence to support the trial court’s finding.” Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). It would be an abuse of discretion for a court to continue hearing a case, and enter a judgment for the prosecution, once the lack of personal jurisdiction has been clearly established in the record.
A careful review of the applicable laws and rules can guide you in deciding how to proceed if you receive a notice of violation and request for waiver of service. If you do not waive service, the agency issuing the notice would have to send out an officer or a process server to complete proper service of process (which typically will happen, and the additional costs of service, about $26-$45, will be added to the fine, if there is a conviction, and sometimes even without a conviction).
If you do not sign the waiver of service and return the request for waiver, should the court set a hearing by mistake, raising the issue of lack of personal jurisdiction at the earliest opportunity should result in a dismissal. In some cases, individuals have specifically noted their refusal to waive service and demanded strict compliance with the applicable rules and laws on the request for waiver of service. This should preserve this objection, should the court set a hearing by mistake.
