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Pima County’s FASTAR Programs Do Not Violate Arizona’s Compulsory Arbitration Statute

Author: Sitar Bhatt

Guest Editors: Wendy Skillman, Ashley Kaye

January 11, 2021 9:00am

In Duff v. Hon. Kenneth Lee, et al., the Arizona Supreme Court recently found no conflict between Pima County’s FASTAR program and A.R.S. § 12-133, which mandates compulsory arbitration. No. CV-19-0128-PR (November 25, 2020).

Factual Background

This opinion arises from Petitioner Duff filing a complaint in May 2018 in Pima County Superior Court. Petitioner Duff sought damages against the Tucson Police Department. Pursuant to Arizona Revised Statute “A.R.S.” § 12-133, she filed a certificate of compulsory arbitration. Petitioner Duff also filed a Fast Trial and Alternative Resolution (“FASTAR”) certificate claiming her lawsuit did not meet the FASTAR eligibility criteria. Petitioner Duff attempted to compel arbitration by filing a motion with the court. She argued FASTAR was unconstitutional because it extinguished her right to a trial de novo and appeal to the court of appeals following arbitration under the FASTAR program.

The trial court denied Petitioner Duff’s motion on the grounds the FASTAR preserved her rights under the short trial option, and electing arbitration under FASTAR required waiver of jury trial and appeal rights. The trial court further concluded Petitioner Duff’s lawsuit fell outside the Pima County $1,000 arbitration limit under the local rules. Hence, she was not entitled to A.R.S. § 12-133 arbitration.

On appeal, the Court of Appeals found a conflict existed between the FASTAR and A.R.S. § 12-133. However, it denied relief since the Court of Appeals found the statute to be procedural and not substantive. The Court of Appeals concluded the statute suggests a method of enforcing substantive rights.

The Arizona Supreme Court granted review to determine: (1) whether FASTAR and A.R.S. § 12-133 conflict; (2) if so, whether the statute is procedural or substantive; and (3) if the statute is substantive, whether FASTAR violates article three of the Arizona Constitution by altering or diminishing the statutory right to appeal.

A.R.S. § 12-133 and FASTAR

Under A.R.S. § 12-133, superior courts are required to establish jurisdictional limits not exceeding $65,000 for submission of disputes to arbitration, and require arbitration for those matters not exceeding the jurisdictional limit. The statute establishes a right to appeal from an arbitration award to the superior court for trial de novo on law and fact. Financial penalties come into play if the appellant does not obtain an award at least 23% better than the arbitrator determined. The statute does not apply to arbitrations held under an alternative dispute resolution program approved by the Arizona Supreme Court.

In an attempt to reduce the cost and time of resolving a civil case in Arizona’s superior courts, Pima County adopted the FASTAR in 2017. FASTAR allows plaintiff to select between a short trial and arbitration in cases seeking monetary damages no greater than $50,000. The adoption of FASTAR lowered Pima County’s arbitrational jurisdictional limits under A.R.S. § 12-133 from $50,000 to $1,000. The FASTAR program essentially eliminated Pima County’s compulsory arbitration.

When filing a lawsuit, plaintiff must file a certificate stating whether the case meets the following four eligibility criteria: (1) the complaint requests monetary damages only; (2) the amount sought exceeds the limit set by local rule for compulsory arbitration; (3) the amount sought does not exceed $50,000, excluding interest, costs, and attorneys’ fees; and (4) plaintiff does not need to serve the summons and complaint on any defendant in a foreign country. If plaintiff picks a short trial, plaintiff is entitled to an expedited jury trial and may appeal a decision to the court of appeals. If plaintiff picks arbitration, plaintiff forgoes the right to appeal.

Arizona Supreme Court Review

The Arizona Supreme Court did not find a conflict between FASTAR and A.R.S. § 12-133. The Court focused its analysis on whether the statute imposed a minimum amount for requiring arbitration for all cases under the $65,000 cap. It found the statute does not prevent the Court from lowering the jurisdictional minimum amount. It pointed out Santa Cruz and Greenlee counties have had a $1,000 arbitration cap for years. Under the statute, Arizona counties have discretion to set different jurisdictional limits.

TM Takeaway

In a Pima County, if plaintiff certifies the case for FASTAR, it is important to understand whether plaintiff picked the short trial or arbitration path. Plaintiff’s selection will affect his or her appeal rights, and likely the manner and method in which plaintiff attempts to try the case.

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