Rule 1. Nature of the Special Action
Arizona Revised Statutes AnnotatedRules of Procedure for Special Actions
17B A.R.S. Special Actions, Rules of Proc., Rule 1
Rule 1. Nature of the Special Action
(a) Relief previously obtained against a body, officer, or person by writs of certiorari, mandamus, or prohibition in the trial or appellate courts shall be obtained in an action under this Rule, and any reference in any statute or rule to any of these writs, unless excepted in the next subsection, shall be deemed to refer to the special action authorized under this Rule. Special forms and proceedings for these writs are replaced by the special action provided by this Rule, and designation of the proceedings as certiorari, mandamus, or prohibition is neither necessary nor proper. Except as authorized by statute, the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal; and nothing in these rules shall be construed as enlarging the scope of the relief traditionally granted under the writs of certiorari, mandamus, and prohibition.
(b) Where a statute expressly authorizes proceedings under certiorari, mandamus, or prohibition, the proceedings shall be known as a statutory special action, as distinguished from those applications for writs of certiorari, mandamus, or prohibition, originating under A.R.S. §§ 12-2001, 12-2021 or the common law, which are special actions. Where a statutory special action is involved, the questions to be raised and considered are wholly unaffected by this Rule, but the provisions of this Rule as to parties, procedure, interlocutory orders and stays, and judgments shall apply.
STATE BAR COMMITTEE NOTE
(a) This Rule proposes to combine the traditional writs of certiorari, mandamus and prohibition into one proceeding, to be known as a “special action.” The Rule is necessitated by the existing confusion as to the proper lines between these various writs, and by lack of a simple procedure which can be followed by all members of the bar and by the judiciary. Robert Lesher, in his article on Extraordinary Writs in the Appellate Courts of Arizona, 7 Ariz.L.Rev. 34 (1965) has said:
“One who seeks the extraordinary writ moves in a murky world where statutes seem designed merely to confuse, where written rules are either incomplete or lacking entirely, and where the only path is in the footsteps of those who have gone before, a good many of whom have fallen off the edge.”
The following language used by The Honorable John F. Molloy in the A.L.I. pamphlet, Bernstein, Clark, Smith, Davis, Tullar, Brown, and Molloy, Extraordinary Writs in Arizona (1967), at pages 149 and 150 thereof, provides a summation of the necessity for the present rule:
“If special writs are to be used to affect litigants' rights as pervasively as is now being accomplished, then due process demands that the procedures to be followed must be set out with reasonable clarity. That such rules should be more streamlined and less technical than rules pertaining to ordinary civil actions is a desirable goal, but some ground rules we must have. Without rules, substantial rights may be lost because litigants and their counsel are understandably ignorant of the proper procedures to follow. Existing practice depends too much on the personal inclinations of judges, and too little on a rule of law.”
The writs are constitutional in Arizona, Ariz.Const. Art. 6, §§ 5, 18, as amended, and the Rule does not alter their substance but merely establishes the procedure for obtaining their remedies. Under the special action, the relief obtainable includes any relief which was formerly granted under the labels of certiorari, mandamus, and prohibition. The Rule, which does not “abridge, enlarge, or modify substantive rights of a litigant” is authorized by A.R.S. § 12-109A, and is in the spirit of the rule-making authority illustrated in Heat Pump Equipment Co. v. Glen Alden Corp., 93 Ariz. 361, 380 P.2d 1011 (1963), and cases cited therein. At the present time, Arizona has statutes on mandamus, A.R.S. §§ 12-2021 to 12-2029, and certiorari, A.R.S. §§ 12-2001 to 12-2007, but it has no statute at all on prohibition, so that there is no written law which can be followed in this regard. (The writ of quo warranto, A.R.S. §§ 12-2041 to 12-2045, is believed to be sufficiently different from the other three writs that it is not included here.) Moreover, the Arizona statutes on mandamus are themselves obsolete and limited; their deficiencies have been pointedly revealed by the Supreme Court in Emery v. Superior Court, 89 Ariz. 246, 360 P.2d 1025 (1961), which explains that under Arizona mandamus practice, we are still burdened with common law pleading, a condition which results in technicality, prolixity, and repetition in the documentation of a mandamus application.
Plagued by these and other limitations, New York has adopted a special action rule merging the three remedies, N.Y.Civ.Prac.Laws and Rules § 7801 (McKinney's 1963), and Colorado has to a considerable extent done the same, Colo.R.Civ.Proc. 106 (1964). By this Rule, Arizona follows their example, although with many specialized limitations due to the strong policy in this state that the writs are subordinate to and are not a substitute for appeal. The provision in this Rule, excluding use of the special action where there is an equally plain, speedy, and adequate remedy by appeal, is in accord with existing Arizona practice as to mandamus, Morrison v. Stanford, 100 Ariz. 211, 412 P.2d 708 (1966); prohibition, Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966); and certiorari, Genda v. Superior Court, 103 Ariz. 240, 439 P.2d 811 (1968). The principles as to what is an “equally plain, speedy and adequate remedy by appeal” are wholly unchanged by this Rule, which is purely procedural, and the meaning of this phrase therefore will continue to depend upon the earlier Arizona cases under the writs and the normal development of the law. The New York experience, sought to be duplicated by the present Rule, has been that the unification of the three extraordinary writs has created no new remedies nor extended or prohibited old ones, but merely eliminated the forms of the old ones. Bettman v. Michaelis, 212 N.Y.S.2d 339 (1961); Miller v. Leuci, 105 N.Y.S.2d 115 (1951); Hines v. State Board of Parole, 181 Misc. 274, 47 N.Y.S.2d 535 (1943). The terms “inferior tribunal” and “corporation” presently found in A.R.S. §§ 12-2001, 12-2021 are meant to be included by the Rule language “body, officer, or person.”
(b) In addition to the common law writs as described above, Arizona also extensively uses certiorari and mandamus as a kind of special or administrative review by statute. These special applications of these writs differ from the common law writs; they are not at all discretionary and they are not subordinate to a right of appeal--they are the right of appeal. This Rule does not in any way affect the substance of what should be determined in a statutory special action, as they are here labeled; but in order to provide a uniform method of handling such cases, the provisions of the special action Rule relating to parties, procedure, interlocutory orders and stays, and judgments are made applicable. The statutory provisions for certiorari and mandamus which are thus wholly unaffected as to substance are as follows:
Certiorari: A.R.S. § 2-330 (airport zoning); § 9-465 [repealed; see, now, §§ 9-462.05 and 9-462.06] (boards of adjustment); § 9-957 (firemen's pensions); § 11-402 (county officers); §§ 23-951, 23-1146 [repealed; see, now, § 23-951] (workmen's compensation); § 28-236 (highway patrol); § 32-1264 [repealed; see, now, § 32-1263] (dentistry licenses); and §§ 36-788, 36-1716 [renumbered as § 49-446 and repealed] (air pollution).
Mandamus: A.R.S. § 3-1010 (coliseum and exposition center bonds); § 11-808 (zoning); §§ 23-948, 23-951 (workmen's compensation); §§ 28-1578, 28-1585 (use tax); § 30-413 [renumbered as § 48-1603] (power districts); § 35-408 (public finance); § 36-1416 (municipal housing); § 36-1485 (slum clearance); § 38-431.03 (public officers); § 40-422 (public utilities); §§ 42-123 [renumbered as § 42-141], 42-204, 42-1339 [repealed; see, now, § 42-124], 42-1421 [repealed; see, now, § 42-124] (tax assessments and collections); § 43-186 [repealed] (income taxes); and §§ 45-1512 [renumbered as § 48-2912], 45-1731 [renumbered as § 48-3113] (irrigation districts).
Should any specific statutory certiorari, mandamus, or prohibition not have been listed, it is nonetheless intended to be covered by the reference to statutory special actions, which will also be applicable in the future should the Legislature see fit to create additional statutory special actions.
17B A. R. S. Special Actions, Rules of Proc., Rule 1, AZ ST SPEC ACT Rule 1
Current with amendments received through 04/15/18
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