Rule 3. Questions Raised
Arizona Revised Statutes AnnotatedRules of Procedure for Special Actions
17B A.R.S. Special Actions, Rules of Proc., Rule 3
Rule 3. Questions Raised
The only questions that may be raised in a special action are:
STATE BAR COMMITTEE NOTE
The special action requests extraordinary relief, and acceptance of jurisdiction of a special action is highly discretionary with the court to which the application is made. A plaintiff, in addition to the showing required in all lawsuits that he has standing and that the matter is subject to judicial review, must always carry the burden of persuasion as to discretionary factors. This Rule thus codifies existing practice in Arizona.
(a) This section sets forth the traditional functions of the writ of mandamus; the Supreme Court is granted the power to issue the writ by Ariz.Const. Art. 6, § 5(1), as amended, and the Superior Courts by Ariz.Const. Art. 6, § 18, as amended. See also as to special writs of mandamus in aid of the appellate jurisdiction, Ariz.Const. Art. 6, § 5(4), as amended, and as to the Court of Appeals, A.R.S. § 12-120.21.
Mandamus is classically used to compel performance of an act, and is not a substitute for negative injunction, Smoker v. Bolin, 85 Ariz. 171, 173, 333 P.2d 977 (1958). A similar effect may be achieved by the writ of prohibition which does prohibit action within its scope and this is permitted under § 3(b) of this Rule. The practical consequence of the creation of a single special action will be to eliminate any problem of label if the conduct sought to be controlled is within the proper scope of either mandamus or prohibition. This is in effect what the Arizona Supreme Court is now doing. See State v. Superior Court, 103 Ariz. 208, 439 P.2d 294 (1968).
While mandamus reaches the failure of a person to perform a duty required by law, it reaches such duties only where he has no discretion in connection with the requirement of performance; for a discussion of the limitations and qualifications of this Rule, see Lesher, supra at 42. Rule 3(a) continues the power of the court to compel the defendant to exercise his discretion even though the court does not require that discretion to be exercised in any particular manner, Cagle Bros. Trucking Serv. v. Arizona Corp. Comm'n, 96 Ariz. 270, 394 P.2d 203 (1964); City of Phoenix v. Superior Court, 6 Ariz.App. 327, 432 P.2d 471 (1967). On the other hand, if the officer “has a legal duty to perform a ministerial act, having no discretion in the manner of its performance, mandamus will compel him to act, and may tell him how to act.” Lesher, supra at 42. See, e.g., Tovrea v. Superior Court, 101 Ariz. 295, 419 P.2d 79 (1966); Southwest Forest Industries, Inc. v. Sullivan, 100 Ariz. 336, 414 P.2d 151 (1966).
The defendant has no discretion to proceed arbitrarily, and therefore the writ has been held to reach arbitrary action or abuse of discretion, Rhodes v. Clark, 92 Ariz. 31, 373 P.2d 348 (1962) (dictum); Hertz Drive-Ur-Self System. Inc. v. Tucson Airport Authority, 81 Ariz. 80, 299 P.2d 1071 (1956) (dictum). The writ is restricted to the present right to the performance of the duty which is demanded, O'Brien v. Superior Court, 102 Ariz. 570, 435 P.2d 44 (1967).
(b) This subsection and the following subsection (c) inherit the tradition of the writs of certiorari and prohibition. Traditionally, prohibition could be utilized to control legal abuses in connection with threatened acts, Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966); Jacobson v. Superior Court, 1 Ariz.App. 342, 402 P.2d 1018 (1965); while certiorari could be used to control legal abuses already accomplished, Genda v. Superior Court, supra. By creation of a single proceeding, we may safely obliterate these distinctions of tense, and this has been done in subsection (b). The courts have themselves attempted to obliterate the tense distinction. The Supreme Court in State v. Superior Court, 103 Ariz. 208, 210, 439 P.2d 294 (1968), has stated:
“We will consider any application to this Court which states sufficient facts to justify relief irrespective of its technical denomination.”
See Lesher, supra at 44. It is the classic function of both prohibition and certiorari to control acts beyond the jurisdiction of another body. As to prohibition, see e.g., Justice Court of Tempe Precinct v. Keswick, 102 Ariz. 536, 433 P.2d 984 (1967); McClendon v. Superior Court, 6 Ariz.App. 497, 433 P.2d 989 (1967). As to certiorari, see e.g., Johnson & Douglas v. Superior Court, 101 Ariz. 373, 419 P.2d 730 (1966); State v. Superior Court, 95 Ariz. 319, 390 P.2d 109 (1964).
(c) This section is suggested by but is materially different from the New York equivalent, N.Y.Civ.Prac.Laws and Rules § 7803(3), because of a different tradition of the cases in our state. The phrases used in this subsection are in fact words of art, each conveying traditional interpretations as developed by common law. Since this subsection of the Rule is a codification of existing extraordinary writ law in Arizona, these words of art carry with them their traditional interpretations. The essential ingredients of review as they have been established in Arizona cases are first, whether the action is in excess of jurisdiction, which is paragraph (a), supra; or whether the action is arbitrary and capricious, Rhodes v. Clark, supra; Hertz Drive-Ur-Self System, Inc. v. Tucson Airport Authority, supra; or whether the action is an abuse of discretion, Caruso v. Superior Court, supra; Ronan v. Superior Court, supra. More recent cases have analyzed the dual ground of review contained in the remaining clause. The general rule is that there is no review simply because a lower body was in error as a matter of law, Hazard v. Superior Court, 82 Ariz. 211, 310 P.2d 830 (1957); Welker v. Stevens, 82 Ariz. 233, 311 P.2d 832 (1957). The Supreme Court has held, however, that it may be permissible to use a special writ in cases of serious error in respect to discovery, Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764 (1958). It is immaterial whether the writ be designated as certiorari or mandamus under existing practice. Phelps Dodge Corp. v. Superior Court, 7 Ariz.App. 277, 438 P.2d 424 (1968). It is not enough that further proceedings in a trial court may be expensive and time consuming, for this would apply to all preliminary orders in most cases, Caruso v. Superior Court, supra. But there are extraordinary situations in which the remedy by appeal, even though it may be plain, speedy, and adequate, is not “equally” plain, speedy, or adequate, and the Supreme Court has stressed the element of equal adequacy in recent cases; Caruso v. Superior Court, supra; Genda v. Superior Court, supra. If the remedy is not equally plain, speedy, and adequate, then the Supreme Court has held in these cases that it has the power to review by means of the writs whether “essential justice has been done.” The term is the Court's and is clearly deliberately broad so as to cover the myriad of possible situations which may arise, particularly in view of the great discretion of the court in connection with any of the writs. This broad discretion is fully maintained by this Rule. Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965); Industrial Comm'n v. Superior Court, 5 Ariz.App. 100, 423 P.2d 375 (1967).
This section is of course subject to the basic limitation that there is no review by special action when there is an equally plain, speedy, or adequate remedy by appeal. This traditional rule that an extraordinary writ will not lie where there is an appeal has been relaxed on several occasions by the courts, Carpenter v. Superior Court, 101 Ariz. 565, 422 P.2d 129 (1966); and availability of appeal has been said not necessarily to bar the use of extraordinary writs. Application of Trico Electric Co-op, Inc., 92 Ariz. 373, 377 P.2d 309 (1962).
17B A. R. S. Special Actions, Rules of Proc., Rule 3, AZ ST SPEC ACT Rule 3
Current with amendments received through 08/15/19
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