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Duff v. Lee

Court of Appeals of Arizona, Second Division

March 29, 2019

Claudia Duff, Petitioner,
Hon. Kenneth Lee, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Tucson Police Department, a municipal agency; and the City of Tucson, a municipal corporation, Real Parties in Interest.

          Special Action Proceeding Pima County Cause No. C20182262

          Hollingsworth Kelly PLLC, Tucson By David D. Buechel Counsel for Petitioner Mark Brnovich, Arizona Attorney General By Kathleen P. Sweeney and Drew C. Ensign, Phoenix, and Marjorie S. Becklund, Tucson, Assistant Attorneys General Counsel for Respondent

          Michael G. Rankin, City Attorney By Renee J. Waters, Principal Assistant City Attorney, Tucson Counsel for Real Parties in Interest

          Presiding Judge Staring authored the opinion of the Court, in which Judge Vásquez concurred and Judge Brearcliffe specially concurred.


          STARING, Presiding Judge.

         ¶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 "prohibited]" 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).[1]


         ¶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, 244 Ariz. 465, ¶ 2 (App. 2018) (quoting Ariz. R. P. Spec. Act. 1(a)). Duff has no remedy by appeal in this matter. Should she proceed by a short trial under FASTAR, her motion for § 12-133 arbitration would be moot, and the alternative dispute resolution component of FASTAR requires the plaintiff to waive the right to appeal. See FASTAR 103(b)(2)(B). Additionally, this case raises purely legal questions of first impression and statewide importance, including the interpretation and effect of certain constitutional and statutory provisions, as well as the construction of court rules and administrative orders.[2] See, e.g., Leon, 244 Ariz. 465, ¶ 2 ("Accepting jurisdiction is appropriate when the question raised is a purely legal matter of statewide importance, and one on which lower courts appear to require some guidance.").


         ¶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, 135 Ariz. 307, 308 (App. 1982) (§ 12-2101(A)(1) provides appellate court with jurisdiction over final judgment after § 12-133(H) trial de novo).

         ¶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 id. The pilot program includes its own "alternative resolution option," in which any arbitration would be binding as to the plaintiff, whose choice to arbitrate within FASTAR "must include express waiver of the rights: (A) to have a trial before a judge or jury, and (B) to appeal the Alternative Resolution decision, award, or judgment to the superior court or to an appellate court."[3]FASTAR 101(a), 103(b)(2), 126(a)(1). A post-arbitration trial de novo in superior court and subsequent appeal would continue to be available to defending parties. See FASTAR 126(a)(2).

         ¶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, 177 Ariz. 6, 8-9 (1993), the framework announced by the supreme court effectively eliminated § 12-133 compulsory arbitration in Pima County, see Hon. Jeffrey T. Bergin, Pilot FASTAR Program Aims for Improved Civil Justice, 54-Feb. Ariz. Att'y 28, 30 (2018) (lower limits for § 12-133 arbitration effectively replaced compulsory arbitration with FASTAR).

         ¶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, "[4] in which she argued the pilot program "is invalid and unconstitutional as applied to her, because it denies her substantive rights to arbitration, trial de novo, and direct appeal set forth in A.R.S. § 12-133 and related statutes." In addition, she maintained her "case [was] still subject to the existing statutory arbitration system, according to Pima County's [former] Local Rule 4.2(a)," the published local rule prior to July 1, 2018, that required § 12-133 arbitration for any case whose value "does not exceed $50, 000.00." Ariz. Sup. Ct. Order R-08-0023 (Sept. 30, 2008). The respondent judge overruled her objection and denied her motion for § 12-133 arbitration, writing:

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.[5]

         ¶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."


         ¶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, 209 Ariz. 1, ¶ 6 (2004) (citing Ariz. Const. art. VI, § 5(5)). But that court's adoption of a rule "does not constitute a prior determination that the rule is valid and constitutional against any challenge," Scheehle v. Justices of the Supreme Court of Ariz.,211 Ariz. 282, 298 (2005), and this court "has the power to determine the validity and constitutionality of the rules promulgated by the Arizona Supreme Court in connection with a case before [it]," State v. Meek,9 Ariz.App. 149, 151 (1969). ...

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