Duff v. Lee
Duff v. Lee
Opinion of the Court
¶1 By special action, petitioner Claudia Duff, a plaintiff in a personal-injury action valued at less than $50,000, challenges the respondent judge's interlocutory order overruling her "Objection to FASTAR Pilot Program" and denying her "Motion for Arbitration Pursuant to A.R.S. § 12-133." She maintains the Fast Trial and Alternative Resolution Program ("FASTAR") does not apply to her case because at the time she filed her complaint, a published Pima County local rule required § 12-133 arbitration for all civil cases in which "the amount in controversy does not exceed $50,000.00."See Ariz. Sup. Ct. Order R-08-0023 (Sept. 30, 2008) (former Rule 4.2). She also argues FASTAR is invalid because it is "prohibit[ed]" by § 12-133 and "violates the Arizona Constitution." For the following reasons, we accept jurisdiction and deny relief, except that we grant Duff additional time to file her FASTAR "Choice Certificate." See FASTAR 103(b)(1).
*1202Jurisdiction
¶2 Special-action review is highly discretionary and is available only when there is no "equally plain, speedy, and adequate remedy by appeal." Leon v. Marner ,
Background
¶3 In 2015, by Administrative Order, our supreme court established the Committee on Civil Justice Reform, whose stated purpose was to "develop recommendations, including rule amendments or pilot projects, to reduce the cost and time required to resolve civil cases in Arizona's superior courts." Ariz. Sup. Ct. Admin. Order No. 2015-126 (Dec. 23, 2015). In its October 2016 report, the committee proposed a "short trial" pilot project for Pima County Superior Court, along with experimental rules "that apply in counties where the Supreme Court and the superior court in a county have authorized a short trial as an alternative to compulsory arbitration under [ A.R.S. § 12-133 and] Rules 72 through 77[, Ariz. R. Civ. P.]." That initial proposal left § 12-133 arbitration limits in place and provided that, in counties participating in FASTAR, "cases that are subject to compulsory arbitration under Rule 72 may instead proceed to a short trial as provided" by the proposed experimental rules. The committee, however, also recommended that a plaintiff in a FASTAR pilot-project county who chooses to proceed by § 12-133 arbitration, instead of by a short trial, be required to waive her rights to a superior court trial de novo and appeal; opportunities otherwise available in § 12-133 arbitration. See § 12-133(H) ("Any party to the arbitration proceeding may appeal from the arbitration award ... by filing ... a demand for trial de novo ...."); see also A.R.S. § 12-2101(A)(1) (affording right to appeal from "final judgment entered in an action ... commenced in a superior court"); Burnett v. Walter ,
¶4 In October 2017, our supreme court issued another administrative order, adopting a three-year FASTAR pilot program for Pima County, effective November 1, 2017. Ariz. Sup. Ct. Admin. Order No. 2017-116 (Oct. 26, 2017). Under the announced rules, however, which apply only in Pima County during the pilot phase, FASTAR is not an alternative to § 12-133 arbitration, but instead replaces it. See
¶5 Pursuant to FASTAR "Eligibility Criteria," cases are subject to the pilot program only if "[t]he amount of money sought by each plaintiff exceeds the limit set by local rule for compulsory arbitration [under § 12-133 ]" and "[t]he amount of money sought by any party does not exceed $50,000, including punitive damages but excluding interest, costs, and attorneys' fees." FASTAR 101(b)(2), (3). To implement FASTAR and "establish the framework necessary to experiment with using short trials and an alternative resolution program instead of compulsory arbitration," the supreme court ordered that "[t]he jurisdictional limit for arbitration claims authorized by A.R.S. § 12-133 is established at one thousand dollars for Pima County for the duration of the pilot program." Ariz. Sup. Ct. Admin. Order No. 2017-116. Because a superior court generally has original jurisdiction only for those civil claims valued at $1,000 or more, see Ariz. Const. art. VI, § 14 (1), (3); State ex rel. Neely v. Brown ,
¶6 As the supreme court noted in its administrative order, the presiding judge of the Pima County Superior Court had requested that § 12-133 arbitration limits be lowered to $1,000. Ariz. Sup. Ct. Admin. Order No. 2017-116. Consistent with Rule 28.1, Ariz. R. Sup. Ct., the presiding judge had, in October 2017, filed a petition asking the supreme court to adopt new Local Rules of Practice for Pima County. Ariz. Sup. Ct. Order R-17-0051 (Oct. 24, 2017). The proposed rules had a new numbering system, such that they were intended to replace the pre-existing local rules in their entirety. Included among the proposed revisions was an amendment lowering the maximum amount for referral to § 12-133 arbitration to $1,000. The petition was opened for public comment in accordance with Rules 28(c) and 28.1(g), Ariz. R. Sup. Ct., see Ariz. Sup. Ct. Order R-17-0051 (Oct. 31, 2017), and our supreme court ultimately issued a final order approving the rule changes, effective July 1, 2018, see Ariz. Sup. Ct. Order R-17-0051 (Mar. 26, 2018).
¶7 In May 2018, Duff filed a complaint seeking damages for injuries she allegedly had suffered in a July 2017 motor vehicle accident involving a Tucson Police Department vehicle. In her accompanying certificate of compulsory arbitration, she certified the amount in controversy "does not exceed the applicable jurisdictional limit of $50,000 set by Pima County Superior Court Local Rule 4.2(a), and further certifies that the case is subject to compulsory arbitration as provided by Rules 72 through 77, A.R.C.P., and A.R.S. § 12-133(A)." She also filed a FASTAR certificate stating that the action did not meet "FASTAR eligibility criteria listed in FASTAR 101(b)," adding, "Specifically, the amount of money sought by the plaintiff does not 'exceed[ ] the limit set by local rule for compulsory arbitration,' FASTAR 101(b)(2), because that limit remains $50,000 under Pima County Superior Court Local Rule 4.2(a)."
¶8 Shortly thereafter, Duff filed an "Objection to FASTAR Pilot Program and Motion for Arbitration Pursuant to A.R.S. § 12-133,"
The Plaintiff's position is not well taken. The Statute in question requires the Superior Court by rule to establish jurisdictional limits for arbitration not to exceed $65,000.00 and requires arbitration for civil cases that do not exceed that jurisdictional limit. As part of the FASTAR Program, the Pima County Superior Court has changed its limits for referring cases to arbitration. The effect of the change is to significantly narrow the range of cases subject to mandatory arbitration. By doing so, the parties' right to a jury trial is preserved, as well as a party's right to appeal from that result. The Program makes available to the Plaintiff an option to voluntarily submit to an alternate dispute mechanism of voluntary arbitration. As part of this election, the Plaintiff voluntarily gives up [her] right to an appeal. Since the Plaintiff is given the right to opt into this alternate dispute mechanism, the Defendant's right to a jury trial and appeal must be preserved. The FASTAR Program provides for this. There is no right to an arbitration in any case, other than those cases that fall within the range prescribed by the Court.
This petition for special action followed.
¶9 Duff contends the respondent judge's order denying § 12-133 arbitration deprives her of "the benefits of compulsory arbitration" were she to participate in a "fast trial," including "the ability to admit evidence of her medical bills, or special damages, without need of an expert witness" and the ability to obtain sanctions if appropriate under Rule 68. And, to the extent the separate alternative dispute provisions of FASTAR are available to her, she asserts they would require her to forgo the opportunities for review by a superior court trial de novo and subsequent appeal. Duff summarizes the issues raised in her special action as follows: "(1) Whether the FASTAR pilot program applies to [her] case. (2) Whether the compulsory arbitration statute, § 12-133, prohibits the FASTAR arbitration program. (3) Whether FASTAR's arbitration program violates the Arizona Constitution."
Discussion
¶10 The Arizona Supreme Court has "constitutional authority to enact rules that govern procedural matters in all Arizona courts." State ex rel. Romley v. Ballinger ,
¶11 Duff first argues FASTAR is "prohibit[ed]" by § 12-133, particularly in light of the statute's 1986 amendment "prescribing that the superior court establish jurisdictional limits for arbitration and require arbitration in certain cases." 1986 Ariz. Sess. Laws, ch. 360 pmbl.; see also Scheehle ,
¶12 Although this court has recognized that the "right to appeal from [ § 12-133 ] arbitration is a statutorily created substantive right," Graf v. Whitaker ,
Conflict with § 12-133 and Separation of Powers
¶13 The legislative, executive, and judicial branches of Arizona's government "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." Ariz. Const. art. III. The legislature "has plenary power to consider any subject within the scope of government unless the provisions of the Constitution restrain it." State ex rel. Napolitano v. Brown ,
¶14 This does not mean our supreme court "will never recognize a statutory rule." State ex rel. Collins v. Seidel ,
¶15 The first step in a separation of powers analysis is determining whether the statute and court rule in question can be harmonized. Seisinger ,
¶16 In that case, we first noted that § 12-133 is "entirely silent on the subject of waiver of the right to appeal." Graf ,
¶17 Because Graf and Phillips successfully harmonized the statute and the respective rules at issue, neither court had reason to address whether § 12-133 arbitration "can be characterized as substantive or procedural, the former being the legislature's prerogative and the latter the province" of our supreme court. Hansen ,
¶18 But in Scheehle , our supreme court construed § 12-133, as amended since 1986, "to require, as opposed to merely authorize, each superior court to adopt a mandatory arbitration program."
¶19 For the same reason, we can find no "consistency of purpose," see Graf ,
¶20 Accordingly, we must consider the nature of the provisions at issue to determine whether they are subject to the primary authority of the legislature or, alternatively, of the supreme court. Seisinger ,
[T]he substantive law is that part of the law which creates, defines and regulates rights; whereas the adjective, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the adjective law pertains to and prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective.
Birmingham ,
¶21 Viewed in this context, we conclude § 12-133 is a "procedural" statute. It does not create or define substantive rights, but prescribes the method of enforcing those rights for claims of modest value, as those claims are identified in rules adopted by the superior court in each county. See § 12-133(A). For the same reasons, the change to Pima County's upper limit for § 12-133 arbitration, as well as FASTAR itself, are also procedural matters subject to supreme court rule. Cf. Scheehle ,
¶22 We thus disagree with Duff that this court "expressly determined" in Graf "that the arbitration statute is substantive." Rather, we concluded in Graf that the "right to appeal from arbitration"-for those subject to § 12-133 arbitration in the first instance-"is a statutorily created substantive right."
¶23 But none of those rulings alters the nature of § 12-133 arbitration as essentially procedural, as it "prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective." Birmingham ,
¶24 Similarly, Duff acknowledges that the right to appeal to this court is "purely statutory."
¶25 In sum, we conclude we cannot harmonize § 12-133, which "require[s] ... each superior court to adopt a mandatory arbitration program," Scheehle ,
Application of FASTAR to Duff's Case
¶26 Duff maintains, "Regardless of the [FASTAR] program's validity, the applicable jurisdictional limit" when she filed her complaint was $50,000,
¶27 In Arizona, any local rule "must be consistent with rules of statewide application and must be approved by the Supreme Court." Ariz. R. Sup. Ct. 28.1(c). As real parties in interest acknowledge, there exists an arguable conflict of effective dates "between the issuance of the Supreme Court's *1209Administrative Order and Pima County's adoption of a corresponding local rule lowering the amount in controversy limit for arbitration."
¶28 As a general matter, Rule 28.1, effective January 1, 2017, "governs requests for approval of new or amended local rules for the superior court." Ariz. R. Sup. Ct. 28.1(a). The presiding judge's rule petition, accompanied by a full set of revised and renumbered, proposed local rules for Pima County, complied with those new procedures. Although Rule 28.1 does not provide for a local rule change by administrative order, we cannot say the supreme court lacked authority to establish new § 12-133 arbitration limits in order to implement the FASTAR pilot program in November 2017, with that new limit later reflected in the new Pima County local rules that became effective July 1, 2018.
¶29 In Ballinger , our supreme court emphasized that its constitutional authority to make procedural rules for any court "may not be supplemented, annulled or superseded by an inferior court."
¶30 Our supreme court distinguished the functions of a "rule of court" and a lower court's "administrative order," cautioning that local rules require supreme court approval and that "[m]erely placing the 'administrative' label on a measure that functions as a rule of court will not preserve it." Id. ¶¶ 7, 12. But in light of the supreme court's broad constitutional authority to make procedural rules for any Arizona court, we conclude this distinction does not similarly limit the manner in which that court promulgates procedural requirements. See Jones v. Lopez Plascencia ,
¶31 As noted in Administrative Order No. 2017-116, the Pima County Superior Court had requested the change to its § 12-133 arbitration limits, in order to facilitate FASTAR, and, consistent with Ballinger , the supreme court approved that request. In addition, implementation of FASTAR in Pima County reflects the supreme court's authority for "administrative supervision over all the courts of the state."
Conclusion
¶32 FASTAR and local rules governing § 12-133 arbitration limits are procedural matters subject to the supreme court's constitutional authority. We conclude the change in those limits and the implementation of FASTAR in Pima County were an appropriate exercise of that authority, effective November 1, 2017, as set forth in Administrative Order No. 2017-116. Duff's case is subject to those provisions. Accordingly, we accept jurisdiction and deny relief, with the exception of affording Duff the opportunity to file a FASTAR "Choice Certificate," electing a FASTAR short trial or binding alternative dispute resolution, within twenty days of this order.
Rule 103(b) and (c), FASTAR, provide a case "will proceed by" a short trial if a plaintiff fails to "timely file a Choice Certificate," "not later than [twenty] days after the first filing by any defendant." Duff points out that the respondent judge's order overruling her objection to FASTAR was not issued until after that deadline had lapsed.
The respondent judge agrees that acceptance of jurisdiction in this matter is "appropriate." As stated in Hurles v. Superior Court , a respondent judge may properly file a responsive pleading to a special action when, as here, "the purpose of the response is to explain or defend an administrative practice, policy, or local rule."
The FASTAR rules provide an exception to the plaintiff's waiver of appeal "[i]f the case includes a counterclaim, cross-claim, or third-party complaint." FASTAR 103(d)(2). In that circumstance, "the plaintiff retains the right to appeal and to have a trial before a judge or jury regarding the decision or award on the counterclaim, crossclaim, or third-party complaint."
The same day, Duff filed a notice of service of an offer of judgment pursuant to Rule 68, Ariz. R. Civ. P.
A different judge granted Duff an interlocutory stay of proceedings pending special-action review of the respondent judge's ruling. After briefing was complete, this court filed a petition to transfer the matter to the Arizona Supreme Court pursuant to Rule 19(a)(1), (3), and (c), Ariz. R. Civ. App. P. The supreme court denied the petition on December 11, 2018.
Section 12-133(A) provides a superior court "shall," "by rule of court," "[e]stablish jurisdictional limits of not to exceed sixty-five thousand dollars for submission of disputes to arbitration" and shall "[r]equire arbitration in all cases which are filed in superior court in which ... the amount in controversy does not exceed [that] jurisdictional limit."
Specifically, Duff argues "the existing FASTAR rules misappropriate public funds without lawful authority" by "attempting to create an elective arbitration program and funding it with compulsory arbitration monies from Pima County's general revenues." Because the record before us is inadequate to address this claim, we decline to do so.
At oral argument, Duff maintained Fisher v. Edgerton ,
In Scheehle , the supreme court affirmed its policy of appointing members of the bar to serve as § 12-133 arbitrators.
We reject Duff's somewhat strained argument that § 12-133 must be read in conjunction with A.R.S. § 22-201(B), which pertains to justice court jurisdiction, and therefore requires that the base amount for cases subject to § 12-133 arbitration be no lower than $10,000.
The provision for a de novo jury trial in § 12-133(H) is irrelevant to the procedure set forth in the FASTAR rules. It is also unnecessary, from a constitutional standpoint, as FASTAR preserves the jury-trial rights of each party-a plaintiff may opt for a jury trial through FASTAR's "short trial" component, and, if a plaintiff instead chooses FASTAR alternative dispute resolution, the defendant may file for a de novo jury trial after that procedure is complete. See FASTAR 103, 117(a), 126(a)(2). Duff does not argue that a FASTAR "short trial" would be insufficient to satisfy her constitutional right to a jury trial.
Duff originally argued that requiring a waiver of the right to appeal violated the doctrine of unconstitutional conditions. However, the respondent judge correctly notes that this doctrine only prohibits the state from conditioning a privilege on the waiver of a constitutional right, and the right to a civil appeal is statutory. See State v. Quinn ,
Before October 2017, former Local Rule 4.2 identified $50,000 as the upper limit for compulsory arbitration under § 12-133. Ariz. Sup. Ct. Order R-08-0023.
Even were we to conclude that FASTAR is limited by the effective date of the 2018 local rule amendments, we reject Duff's assertion that "the new local rules do not apply to [her] case, because her filing date gives her a vested right to statutory arbitration and all the substantive rights it entails." As addressed above, statutory arbitration is not a substantive right, but a procedure, and Duff has no right, vested or otherwise, to a particular procedure. See Ray ,
Concurring Opinion
¶33 I concur fully in the result and the entirety of the majority opinion but for its *1210discussion in ¶¶ 18-19-and summary reflecting it at ¶ 25-with regard to "harmonizing" the FASTAR rule changes with A.R.S. § 12-133 and Scheehle v. Justices of the Supreme Court of Arizona ,
¶34 In Scheehle , our supreme court acknowledged that in § 12-133, as amended since 1986, the legislature used language that "require[d], as opposed to merely authorize[d], each superior court to adopt a mandatory arbitration program."
¶35 That is, Duff would have us not only read the statute to say that a superior court cannot require arbitration of cases with a value greater than $65,000, but also read into it that it must set a minimum value above which any case must be arbitrated. And that it must set each end of the range to ensure that some cases are subject to mandatory arbitration. Whether the legislature did not intend to put such express language in the statute originally, or simply has not felt the need to do so since, is immaterial; no such restriction on the supreme court's authority to approve a monetary cap like that in the FASTAR rule is in the statute. And, in any event, for the reasons discussed more fully in the majority opinion at ¶¶ 21-23, any such limit might run afoul of the separation of powers.
¶36 The respondent judge correctly argues in his briefing that "nothing in the statute's plain language established a minimum amount" for cases subject to compulsory arbitration and that we ought not read one into it. And, as Scheehle itself recognized, we ought to be "reluctant to imply a statutory limitation that would create a conflict in the constitutional prerogatives of separate branches of Arizona government." Id . ¶ 25. The majority opinion does more than needed by reading a conflict with the FASTAR rules into § 12-133 by way of Scheehle that must then, in turn, be resolved. There simply is no conflict. Otherwise, I concur in the result and reasoning in full.
Reference
- Full Case Name
- Claudia DUFF v. Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, and Tucson Police Department, a Municipal Agency and the City of Tucson, a Municipal Corporation, Real Parties in Interest.
- Cited By
- 5 cases
- Status
- Published