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Trial: Pima County FASTAR Program Constitutional and Supersedes Compulsory Arbitration Statute

Posted by Ted A. Schmidt | Apr 02, 2019 | 0 Comments

Duff v. Lee, __Az. Adv. Rep. __No.2 CA-SA 2018-0058 (App. Div. II, March 29, 2019) (J. Starling)


In 2015 the Arizona Supreme Court established the Committee on Civil Justice Reform to develop recommendations, rules and pilot projects to reduce the cost and time to resolve civil cases.  This committee proposed a “short trial” pilot program to be known as  “Fast Trial and Alternative Resolution” [FASTAR] ( which the supreme court implemented in Pima County Superior Court.

Among other things, the FASTAR rules replaced the rules for compulsory arbitration as set forth in A.R.S. § 12-133 and Rules 72 through 77 Ariz. R. Civ. P. FASTAR reduced the amount in controversy required to automatically funnel a civil case into compulsory arbitration to whatever the local rule requires ( and Pima County Superior Court amended its local rule 4.2 to reduce that amount to $1,000) and mandated that any case with a value over $1,000 but less than $50,000 go into FASTAR. Once in FASTAR the plaintiff can elect to move the case back into compulsory arbitration but in so doing waives the right to appeal (right to appeal preserved for the defense) the arbitrator's decision. If the plaintiff does not elect to drop back down into compulsory arbitration the case will be placed on a fast track for a two day jury trial with reduced discovery options and shortened deadlines to move the case to a quicker and less expensive conclusion. The rationale being that in FASTAR Arizona citizens' constitutional right to trial by jury is enhanced and plaintiff does have the right to appeal the verdict. If she chooses compulsory arbitration over FASTAR she is effectively deciding to waive her right to appeal.

Plaintiff sued the Tucson Police Department for injuries sustained in an automobile collision with a TPD vehicle. She filed a Compulsory Arbitration Certificate claiming the amount in controversy did not exceed $50,000.  Her case went into FASTAR over her objection. She then brought this special action and the Arizona Court of Appeals accepted jurisdiction and granted relief in part and denied relief in part.

Plaintiff's argument was essentially that FASTAR was unconstitutional because it denies her substantive rights to arbitration, trial de novo, and direct appeal set forth in A.R.S. § 12-133. She further argued that while her case was filed after the enactment of FASTAR it was filed before Pima County Local Rule 4.2 was amended to reduce the amount in controversy to $1,000 and therefore she was entitled to go the compulsory arbitration route with appeal rights.

The court of appeals ruled in favor of the trial court finding that FASTAR is a body of procedural, not substantive rules, enacted by the supreme court. As such, to the extent the rules are in irreconcilable conflict with the  procedural statute A.R.S. § 12-133 the supreme court rule prevails.

“Similarly, [plaintiff] acknowledges that the right to appeal to this court is ‘purely statutory.'  Although it is a substantive right that ‘cannot be enlarged or diminished by judicial rule,' our supreme court has the authority to regulate the manner in which an appeal may be taken, including rules that provide for waiver of that right. Thus, just as a procedural rule permissibly conditions the right of appeal under § 12-133(H) on a party's participation in that arbitration process, a FASTAR rule may condition the right of appeal on a party's participation in the short-trial program.”

As to the argument that plaintiff filed before the local rule reduced the arbitration limit to $1,000, the  Supreme Court ‘s  Administrative Order No. 2017-116 was in place at the time plaintiff filed, and this Order  supersedes an inferior court's local rule local rule.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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