Brent Randall Phillips v. Hon. o'neil/state Bar

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
BRENT RANDALL PHILLIPS,
Petitioner,

v.

THE HONORABLE WILLIAM O’NEIL, PRESIDING DISCIPLINARY JUDGE,
Respondent Judge,

STATE BAR OF ARIZONA,
Real Party in Interest.

No. CV-17-0122-SA
Filed December 20, 2017

Special Action from the Office of the Presiding Disciplinary Judge
No. PDJ2016-9128
JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL:

Ralph Adams (argued), Karen Clark (argued), Adams & Clark, PC,
Phoenix, Attorneys for Brent Randall Phillips

James D. Lee (argued), Senior Bar Counsel, Attorney for State Bar of
Arizona

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Jennifer M. Perkins (argued), Assistant Solicitor General, Phoenix,
Attorneys for Amicus Curiae State of Arizona

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL, TIMMER, and GOULD joined. JUSTICE BOLICK dissented.

JUSTICE LOPEZ, opinion of the Court:
 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

¶1 This case concerns the application of Arizona Rules of
Evidence 408 and 613 when the State Bar of Arizona seeks to use a consent
judgment entered in another matter in attorney disciplinary proceedings.
We hold that Rule 408 precludes use of a consent judgment to prove
substantive facts to establish liability for a subsequent claim, and a consent
judgment likewise cannot be used for impeachment purposes under Rule
613.

BACKGROUND

¶2 Disciplinary proceedings are currently pending against
attorney Brent Phillips before the Presiding Disciplinary Judge (“PDJ”).
Prior to these proceedings, the Arizona Attorney General sued Phillips for
violations of the Arizona Consumer Fraud Act (“CFA”), A.R.S. §§ 44-1521
to -1534. The state alleged that he mailed deceptive advertisements to
Arizona consumers. Among other violations, the advertisements led
consumers to mistakenly believe they were eligible for mortgage payment
or interest rate deductions and were worded in a way that made some
consumers think the mortgage lenders sent the advertisements. The
advertisements also made the program look selective when it was not, and
Phillips’ fee agreements required consumers to pay attorney fees up front,
even if the lender ultimately denied the application to modify the
consumers’ mortgage loan terms. The disciplinary proceedings also relate
to this conduct.

¶3 To resolve the Attorney General’s CFA action, Phillips agreed
to a consent judgment (“Judgment”). The Judgment waived Phillips’ right
to a trial, admitted that his actions violated the CFA and a federal
regulation, and required him to pay restitution, attorney fees, and civil
penalties. The Judgment also precluded its use in most other proceedings:

With the exceptions of paragraphs 12 and 13 above and the
State’s enforcement of this Consent Judgment, this Consent
Judgment is not and shall not in any event be used as an
admission or evidence of any alleged wrongdoing or liability
by defendant Brent Randall Phillips, defendant Phillips Law
Center, and defendant Farmer’s Law Group in any other civil,
criminal, or administrative court, administrative agency or
other tribunal anywhere in the United States of America.

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

¶4 Paragraphs 12 and 13 concern the state’s rights to enforce the
Judgment during a bankruptcy proceeding or subsequent civil litigation.
The parties stipulated that the Judgment was the result of a compromise
and settlement agreement and that only the parties could seek its
enforcement.

¶5 During attorney disciplinary proceedings before the PDJ,
Phillips’ counsel moved in limine to preclude the State Bar from
introducing the Judgment into evidence for any purpose. The State Bar
opposed the motion, arguing it should be allowed to use the Judgment to
impeach Phillips’ testimony if it differed from the facts contained in the
Judgment. The PDJ ruled in favor of the State Bar, allowing it to introduce
the Judgment’s stipulated facts (but not the sanctions) for impeachment
purposes.

¶6 In his order, the PDJ recognized that the Judgment’s terms
precluded its use “as an admission or evidence of any alleged wrongdoing
or liability” by Phillips. The PDJ concluded, however, that Rule 408 does
not render the stipulated facts inadmissible because the Judgment is being
used for a different purpose than in the Attorney General’s original “claim.”
Finally, the PDJ quoted Rule 613(b), emphasizing that extrinsic evidence of
a witness’s prior inconsistent statement is admissible “if justice so
requires.”

¶7 We accepted special action jurisdiction because this case
presents a legal issue of statewide importance that is likely to recur. We
have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶8 Attorney disciplinary proceedings “are neither civil nor
criminal, but are sui generis,” and the rules of evidence apply in such
proceedings “as far as practicable.” Ariz. R. Sup. Ct. 48(a), (c). We review
de novo the interpretation of court rules. State v. Fitzgerald, 232 Ariz. 208,
210 ¶ 10 (2013). “We interpret court rules according to the principles of
statutory construction.” State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004). Under
those principles, when a rule is unambiguous, “we apply it without further
analysis.” Wade v. Ariz. State Ret. Sys., 241 Ariz. 559, 561 ¶ 10 (2017) (internal
quotation marks omitted). If a rule is ambiguous the Court may consider

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

its “subject matter, legislative history, and purpose, as well as the effect of
different interpretations, to derive its meaning.” Fleming v. State Dep’t of
Pub. Safety, 237 Ariz. 414, 417 ¶ 12 (2015) (internal quotation marks omitted).

I. Arizona Rule of Evidence 408

¶9 Rule 408(a) provides:

Prohibited Uses. Evidence of the following is not admissible—on
behalf of any party—either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to
accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim.

¶10 By its terms, Rule 408(a)(1) indicates that consent judgments
cannot be introduced to prove substantive facts to establish liability for a
disputed claim. See Michael H. Graham, 3 Handbook of Federal Evidence
§ 408:1 (8th ed. 2017) (“Pursuant to Rule 408(a)(1) neither the furnishing,
promising, or offering, or accepting, promising to accept a valuable
consideration in compromising or attempting to compromise the claim, nor
the completed compromise itself is admissible to prove or disprove the
validity or amount of a disputed claim.”). Subsection (a)(1) renders
inadmissible “[e]vidence of . . . accepting . . . a valuable consideration in
compromising . . . the claim.” Ariz. R. Evid. 408(a)(1). The Judgment
reflects evidence of an exchange of “valuable consideration” between the
state and Phillips. Phillips waived his right to a trial, admitted violating the
CFA and a federal regulation, and agreed to pay restitution, fees, and
penalties in exchange for mitigating liability and settling the state’s action.

¶11 The dissent contends that if the drafters of Rule 408 intended
the rule to cover consent judgments and settlement agreements in addition
to their preceding offers and negotiations, they would have said so
explicitly. ¶ 31, infra. But this view ignores the “general terms” canon of
statutory construction. That canon “is based on the reality that it is possible
and useful to formulate categories (e.g., ‘dangerous weapons’) without
knowing all the items that may fit—or may later, once invented, come to

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

fit—within those categories.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 101 (2012). The purpose of using
general terms “is to produce general coverage—not to leave room for courts
to recognize ad hoc exceptions.” Id. Here, the drafters of Rule 408 used
general terms—“evidence” and “valuable consideration”—to encompass
the wide range of provisions that parties may offer and accept to reach
settlements. By excluding consent judgments and settlement agreements
from the general language of Rule 408, the dissent would find an ad hoc
exception to the rule in violation of the general terms canon. And to what
end? The practice of finding such exceptions in the context of Rule 408
would produce great uncertainty in the rule’s application and undermine
its policy of promoting settlement and compromise.

¶12 The dissent also claims that the rule’s heading, “Compromise
Offers and Negotiations,” limits its application to evidence of offers and
negotiations. ¶ 31, infra. Yet titles and headings “are but tools available for
the resolution of a doubt. But they cannot undo or limit that which the text
makes plain.” Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 528–29
(1947); see also State ex rel. Romley v. Hauser, 209 Ariz. 539, 542–43 ¶ 16 (2005)
(declining to find a statute’s title persuasive when it was inconsistent with
the text of the statute); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 221–22 (2012) (stating that although titles and
headings “are useful navigational aids,” “a title or heading should never be
allowed to override the plain words of a text”). As discussed above, Rule
408(a)(1) expressly renders inadmissible evidence of “accepting” an offer to
compromise a claim. The rule would not distinguish between evidence of
“compromising” and “attempting to compromise” a claim unless it was
intended to apply to completed settlements like the Judgment.

¶13 Even if Rule 408 were ambiguous, which it is not, secondary
methods of interpretation and caselaw interpreting Federal Rule 408 further
support our interpretation of the Arizona rule. When we interpret an
evidentiary rule that largely mirrors a Federal Rule of Evidence, we look to
the federal rule and its interpretation by federal courts for guidance. State
v. Salazar-Mercado, 234 Ariz. 590, 592–93 ¶ 7 (2014); State v. Green, 200 Ariz.
496, 498 ¶ 10 (2001). We also “subscribe to the principle that uniformity in
interpretation of our rules and the federal rules is highly desirable.” Orme
Sch. v. Reeves, 166 Ariz. 301, 304 (1990).

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

¶14 Arizona modeled Rule 408 after its federal counterpart. See
Ariz. R. Evid. 408 cmt. to 2012 amendment (“[T]he language of Rule 408 has
been amended to conform to the federal restyling of the Evidence Rules to
make them more easily understood and to make style and terminology
consistent throughout the rules.”). The only difference between the state
and federal versions of Rule 408 is that Arizona’s rule does not include the
“criminal use exception” set forth in Federal Rule 408(a)(2). Id. We
therefore look to Federal Rule 408 and its interpretation by federal courts to
aid our interpretation of the Arizona rule.

¶15 According to the federal Advisory Committee on Rules of
Evidence, the purpose of Rule 408 is to encourage “the compromise and
settlement of disputes.” Fed. R. Evid. 408 advisory committee’s note to 1972
proposed rules; see also Miller v. Kelly, 212 Ariz. 283, 287 ¶ 12 (App. 2006)
(citing Fed. R. Evid. 408 advisory committee note). The policy underlying
the rule operates to render evidence of a completed compromise
inadmissible against all parties to that compromise. Fed. R. Evid. 408
advisory committee’s note to 1972 proposed rules (“While the rule is
ordinarily phrased in terms of offers of compromise, it is apparent that a
similar attitude must be taken with respect to completed compromises
when offered against a party thereto.”); see also Miller, 212 Ariz. at 287 ¶ 12
(same); John C. Lincoln Hosp. & Health Corp. v. Maricopa Cty., 208 Ariz. 532,
536 ¶ 13 n.3 (App. 2004) (“[E]vidence of a settlement agreement otherwise
precluded by Rule 408 may be offered for a purpose other than to prove or
disprove liability or the validity of a claim . . . .”). With the policy of Rule
408 in mind, we turn to the admissibility of consent judgments under the
rule.

¶16 Since the rule’s adoption in 1975, federal courts consistently
have held that Rule 408 bars the admission of consent judgments to prove
substantive facts to establish liability for a claim. See, e.g., United States v.
Gilbert, 668 F.2d 94, 97 (2d Cir. 1981); Buescher v. Baldwin Wallace Univ., 86 F.
Supp. 3d 789, 796 (E.D. Ohio 2015); N.J. Tpk. Auth. v. PPG Indus., Inc., 16 F.
Supp. 2d 460, 473 (D. N.J. 1998). This is not to say that the rule bars
admission of consent judgments for all purposes. For example, in Johnson
v. Hugo’s Skateway, 974 F.2d 1408 (4th Cir. 1992), the Fourth Circuit held that
a consent judgment was admissible to prove motive or intent under Federal
Rule of Evidence 404(b). Id. at 1413. Importantly, the court noted that
admission of the consent judgment did not violate Rule 408 because it “was

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

not admitted to prove the truth of the matters on which compromise had
been reached.” Id.

¶17 Likewise, in United States v. Austin, 54 F.3d 394 (7th Cir. 1995),
the Seventh Circuit held that the district court did not err in admitting a
consent decree to prove the defendant was on notice that his conduct was
wrongful because, although Rule 408 “prohibits the admission of
statements made in the course of settlement to prove liability,” it allows the
admission of a consent decree “when offered for another purpose.” Id. at
400. According to the court, the consent decree “constituted a direct judicial
admission to the accusation of fraud in the conduct underlying the
indictment.” Id. Courts interpreting Austin have focused on the fact that
the consent decree in that case was not offered to prove liability, see, e.g.,
N.J. Tpk. Auth., 16 F. Supp. 2d at 473, and it likely would have been admitted
under the since-enacted “criminal use exception” to Federal Rule of
Evidence 408 (which Arizona has not adopted) because it was “offered in a
criminal case,” and it was the product of settlement negotiations with the
FTC, see Fed. R. Evid. 408(a)(2). Cf. Gilbert, 668 F.2d at 97 (holding that a
consent decree is admissible under Rule 404(b) to prove knowledge of
“reporting requirements involved in the decree,” but it may not be used “to
prove liability for the claim”).

¶18 We agree with the foregoing cases interpreting Rule 408 as
applying to consent judgments and hold that the rule precludes the use of
a consent judgment’s substantive facts to establish liability for a subsequent
claim. Our holding not only comports with the plain text of Rule 408(a)(1),
but also promotes uniformity in the interpretation of the Federal and
Arizona Rules of Evidence, see Reeves, 166 Ariz. at 304, and advances the
public policy underlying Rule 408. The State Bar’s position that consent
judgments are admissible to prove substantive facts would undermine Rule
408’s purpose by discouraging compromise and settlement. The
knowledge that a consent judgment with a governmental agency could be
used to prove wrongdoing in a subsequent administrative or disciplinary
proceeding would almost certainly dissuade defendants from settling
disputes. Rather than agree to a set of stipulated facts in a consent judgment
and risk certain prejudice in later proceedings when those facts are used as
an admission of liability, many defendants would opt to contest their cases
instead of settling. By discouraging compromise and settlement, the State
Bar’s interpretation of Rule 408 contravenes the rule’s purpose.

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

¶19 Here, the State Bar seeks to use the Judgment’s stipulated
facts to impeach Phillips’ testimony in disciplinary proceedings. Rule 408
forbids this practice. Rule 408(a) expressly prohibits the use of such
evidence “to impeach by a prior inconsistent statement or a contradiction.”
As the Advisory Committee explained in the context of the federal rule,
“broad impeachment would tend to swallow the exclusionary rule and
would impair the public policy of promoting settlements.” Fed. R. Evid.
408 advisory committee’s note to 2006 amendment. In fact, the State Bar
acknowledged as much when it filed a petition with this Court in 2008 to
amend Rule 408. It argued then that allowing the introduction of
settlement-related communications into evidence for impeachment
purposes “dilutes Rule 408’s substantive protections” and “diminishes Rule
408’s value in encouraging settlement discussions.”

¶20 Moreover, the State Bar does not contend that it seeks to admit
the stipulated facts of the Judgment for a purpose other than proving
liability. Indeed, it seeks to use the stipulated facts to establish that Phillips’
advertisements violated the Arizona Rules of Professional Conduct. This is
the type of use that every federal court addressing the issue has, to our
knowledge, deemed violative of Rule 408. The PDJ erred in finding the
stipulated facts of the Judgment admissible to impeach Phillips’ testimony.

¶21 Citing Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d
1284 (6th Cir. 1997), the State Bar argues that Rule 408 should not apply here
because Phillips engaged in “inappropriate conduct” during settlement
negotiations with the state by making false statements in the consent
judgment. This argument is unpersuasive. Uforma held that Rule 408 does
not apply “when the claim is based upon some wrong that was committed
in the course of the settlement discussions; e.g., libel, assault, breach of
contract, unfair labor practice, and the like.” Id. at 1293 (citations omitted).
Here, the State Bar’s claim is not based on Phillips’ conduct during
settlement negotiations with the Arizona Attorney General, but rather on
the advertisements he sent to consumers in violation of Arizona law.
Uforma is inapposite.

¶22 The State Bar also contends that Rule 408 does not apply here
because its disciplinary proceedings do not involve the “same claim” as the
Attorney General’s lawsuit, citing Broadcort Capital Corp. v. Summa Medical
Corp., 972 F.2d 1183 (10th Cir. 1992). We disagree. Broadcort held that
Federal Rule of Evidence 408 did not bar the introduction of evidence

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

related to settlement discussions involving “a different claim than the one
at issue in the current trial.” Id. at 1194. There, the evidence at issue was
testimony regarding settlement negotiations of a different claim associated
with a prior loan transaction. Id.

¶23 Although Broadcort did not define “same claim,” the phrase
has been defined in the claim preclusion context. We have previously
observed that most federal courts, including the United States Supreme
Court, have applied the transactional analysis of the Restatement (Second)
of Judgments when the definition of a “claim” is legally significant. In re
the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source,
212 Ariz. 64, 71 ¶¶ 20–21 (2006); see also Armstrong v. HRB Royalty, Inc., 392
F. Supp. 2d 1302, 1306–07 (S.D. Ala. 2005) (discussing how the “same
transaction” test is consistent with the “same claim” requirement of Rule
408). Under the transactional analysis, the focus is on whether multiple
claims arise out of a “common nucleus of operative facts.” Gila River, 212
Ariz. at 71 ¶¶ 20–21 (internal quotation marks omitted).

¶24 In this case, applying the transactional analysis leads us to
conclude that the two proceedings at issue involve the same claim. Unlike
the evidence in Broadcort, which concerned an entirely different loan
transaction, the State Bar’s claims here arose from the same set of operative
facts underlying the CFA litigation. Specifically, both the Attorney
General’s lawsuit and the State Bar’s disciplinary proceedings were
brought to sanction Phillips for the advertisements he distributed.
Although the sanctions Phillips may face from the State Bar differ from
those in the civil proceeding the Attorney General brought, a difference in
sanctions alone does not render a claim “different” for purposes of the
transactional analysis. See id. ¶¶ 19–21. We therefore find that none of the
exceptions to Rule 408 allow the State Bar to admit the Judgment or its
contents into evidence.

¶25 The State Bar also urges the Court to hold, for public policy
reasons, that Rule 408 is inapplicable pursuant to Arizona Supreme Court
Rule 48(c), which provides that the rules of evidence are applicable in
attorney disciplinary proceedings “as far as practicable.” Phillips, the State
Bar argues, should not be allowed to use Rule 408 as a “safe haven” to give
conflicting or contradictory statements regarding his advertisements. We
decline the State Bar’s request because it misapprehends the scope and
purpose of Rule 48(c). The rule is merely a procedural streamlining

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

provision that does not curtail the substantive application of the rules of
evidence. Cf. In re Wilson, 76 Ariz. 49, 53 (1953) (construing Section 20, Rule
1(C) of the Rules of the Supreme Court, the precursor to Rule 48(c), to
provide “for a hearing that comports with the concept of due process yet
leaving those charged with conducting the investigation free of the rigid
rules governing proceedings in court. This is the meaning of the limitation
on the use of the rules of evidence ‘as far as practicable’”). Accordingly, we
decline to apply Rule 48(c) to allow admission of the Judgment in Phillips’
disciplinary proceedings in a manner inconsistent with Rule 408.

II. Arizona Rule of Evidence 613

¶26 The State Bar next contends that the Judgment is admissible
under Rule 613(b). It is not. Rule 613(b) provides, in relevant part,
“[e]xtrinsic evidence of a witness’s prior inconsistent statement is
admissible only if the witness is given an opportunity to explain or deny
the statement and an adverse party is given an opportunity to examine the
witness about it, or if justice so requires.”

¶27 In State v. Acree, 121 Ariz. 94 (1978), we held that prior
inconsistent statements, “unless inadmissible under some other rule, become
substantive evidence usable for all purposes.” Id. at 97 (emphasis added).
Here, as discussed above, the Judgment is inadmissible under Rule 408.
Consequently, it is not admissible as substantive evidence under Rule
613(b). The State Bar’s arguments under Rule 613 are unavailing.

¶28 The PDJ’s order implied that the stipulated facts from the
Judgment are nevertheless admissible under Rule 613(b) because “justice so
requires.” We disagree. There is nothing unjust about requiring the State
Bar to prove its case—as it generally must do in attorney disciplinary
proceedings—against Phillips without the stipulated facts from the
Judgment. To the extent the PDJ’s order invokes Rule 613(b)’s “justice so
requires” language to prevent Phillips from admitting facts in a civil
proceeding to mitigate liability and then denying them in a subsequent
disciplinary proceeding, Rule 408 does not permit it. Rule 408’s text
expressly precludes the use of the Judgment to impeach Phillips and the
policy underlying the rule balances the risk of such an outcome in favor of
encouraging the compromise and settlement of disputes.

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 PHILLIPS V. HON. O’NEIL/STATE BAR
Opinion of the Court

CONCLUSION

¶29 We accept jurisdiction of this special action and grant relief by
vacating the PDJ’s order denying Phillips’ motion in limine. The PDJ is
instructed to not permit use of the Judgment in the disciplinary
proceedings.

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 PHILLIPS V. HON. O’NEIL/STATE BAR
JUSTICE BOLICK, Dissenting

BOLICK, J., dissenting.

¶30 When the Court finds it necessary to resort to federal cases,
advisory comments to a federal rule, and multiple restatements to figure
out what a rule of our own making means, something is seriously wrong.

¶31 I cannot join my colleagues in finding that Rule 408
encompasses consent decrees and settlement agreements. The rule is titled
“Compromise Offers and Negotiations,” and the provisions that follow
encompass that limited subject matter and no other. A rule intended to
apply to consent decrees would use that or a similar term, not the
cumbersome verbiage cited by the majority. Supra ¶ 9–10 (finding “consent
decree” in the language of Rule 408(a)(1) (“furnishing, promising, or
offering—or accepting, promising to accept, or offering to accept—a
valuable consideration in compromising or attempting to compromise the
claim”)). Moreover, the rule’s prohibitions are limited to “the claim,” and
do not by their terms extend to its “nucleus” or to other lawsuits. See supra
¶ 23. “When the language is plain, we have no right to insert words and
phrases, so as to incorporate in the statute a new and distinct provision.”
United States v. Temple, 105 U.S. 97, 99 (1881); see also Sw. Iron & Steel Indus.,
Inc. v. State, 123 Ariz. 78, 79–80 (1979) (“[T]he expression of one or more
items of a class and the exclusion of other items of the same class implies
the legislative intent to exclude those items not so included.”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93
(2012) (“The principle that a matter not covered is not covered is so obvious
that it seems absurd to recite it.”).

¶32 I acknowledge, as my colleagues ably demonstrate, that for
purposes of policy or expediency, multiple authorities have interpreted the
federal counterpart to Rule 408 to encompass consent decrees even though
no such language appears in the federal rule either. See, e.g., supra ¶ 15
(“While the rule is ordinarily phrased in terms of offers of compromise, it
is apparent that a similar attitude must be taken with respect to completed
compromises when offered against a party thereto.” (quoting Fed. R. Evid.
408 advisory committee’s note to 1972 proposed rules)). That a path is well-
trod does not mean it should be followed. The categorical rule adopted by
the Court today—that Rule 408 “precludes the use of a consent judgment
to prove substantive facts” in any legal setting involving a claim with a
“common nucleus” (supra ¶¶ 18, 23)—is momentous and raises significant
policy questions that we cannot adequately consider in fact-bound

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JUSTICE BOLICK, Dissenting

litigation. The outcome here may very well be correct, given that this case
involves one state actor using another’s consent decree to prove facts in a
separate legal action when the decree contains language prohibiting such
use. But the consequences of rewriting Rule 408 will extend far beyond the
facts and parties before us.

¶33 There is a far better approach. Unlike statutes and
constitutional provisions, whose policies we are oath-bound to enforce, the
Court is authorized by Arizona Constitution article 6, section 5(5) to make
procedural rules. Toward that end, this Court established a Standing
Committee on the Rules of Evidence, charged with “consider[ing] future
amendment of the rules based on changes to the Federal Rules of Evidence
or evolving case law.” In re Establishment of the Advisory Comm. on Rules of
Evidence, Admin. Order No. 2012-43 (2012). Case law has evolved the
meaning of Rule 408 but the rule’s language remains unchanged. In our
rulemaking proceedings we consider a wide array of perspectives that
allow us to carefully weigh the full ramifications of our policy choices. It is
a very simple yet deliberative process and far preferable to case-by-case rule
revisions. Best of all, it can produce rules whose meaning is readily
apparent on their face.

¶34 Access to justice requires clarity in our procedural rules. We
should unfailingly hold ourselves to the standard of rules that say what
they mean and mean what they say. Construing Rule 408 to encompass
consent decrees flunks that standard. Not only does the rule’s language fail
to provide notice of the new and expanded scope given to it by the Court
today, an attorney or layperson consulting the index to the Rules of
Evidence for provisions pertaining to consent decrees or settlement
agreements would (unsurprisingly) find no reference to Rule 408. When
one cannot rely on a rule’s words to determine their meaning, but instead
must read our decisions to figure out how we have changed the meaning
without having changed the rules themselves, we have failed a core part of
our mission. See Allen v. Sanders, 240 Ariz. 569, 573–75 ¶¶ 22–30 (2016)
(Bolick, J., concurring).

¶35 For the foregoing reasons, and with great respect to my
colleagues, I dissent.

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