Rule 4. Procedure
Arizona Revised Statutes AnnotatedRules of Procedure for Special Actions
17B A.R.S. Special Actions, Rules of Proc., Rule 4
Rule 4. Procedure
(b) Where action brought. An action brought in the Superior Court under this Rule shall be brought in the county in which the body or officer has or should have determined the matter to be reviewed, or, in the case of a state officer or body, either in Maricopa County or in the county of residence of the plaintiff; or in case of any public officer or body, or of a private corporation, in the county of the principal place of business of such officer or body or corporation; or if there is no principal place of business in Arizona for a private corporation defendant, the action may be brought in Maricopa County or, at the option of the plaintiff, in the county of his residence. Where the action is brought in a Court of Appeals, it shall be brought before whichever Court of Appeals has territorial jurisdiction over the county in which the action might have been brought had it been presented to a Superior Court.
(c) Time for Service of Complaint and Answer. The special action may be instituted with or without an application for an order to show cause why the requested relief should not be granted. The summons and complaint and order to show cause, if any, shall be served as process is served under Rules 4, 4.1 or 4.2, as applicable, of the Rules of Civil Procedure, unless the court otherwise specifies the manner and time within which service shall be made. If a show cause procedure is used, the court shall set a speedy return date. If that procedure is not used, the usual time periods established by the Rules of Civil Procedure shall apply, but all times may be specially modified by court order to achieve expeditious determination of the cause.
(d) Pleadings. There shall be a complaint, which may be verified or accompanied by affidavits or other written proof, and an answer by the defendant or the real party in interest, or such other responsive pleadings as may be appropriate. The court may order any party or persons to file with the court all or any part of any records in his or its possession.
(e) Caption. In any special action filed against a Superior Court Judge, Court of Appeals Judge or other officer in a Court of Appeals or in the Supreme Court and in any petition for review filed pursuant to Rule 8(b) of these rules, the caption shall state the name of the judge or officer followed by the person's official title, e.g., “[Name of Petitioner], Petitioner v. Hon. [Name of Judge], Judge of the Superior Court of the State of Arizona, in and for the County of [Name of County], Respondent and [Name of Real Party in Interest], Real Party in Interest.”
(f) Trial. If a triable issue of fact is raised in an action under this Rule, it shall be tried subject to special orders concerning discovery. If the petition is filed in an appellate court, that court may, if it believes that the matter should be tried, either designate a master or transmit the matter to a Superior Court for trial, subject to reference back if the court desires. The court may use an advisory jury on matters of fact.
(g) [Costs and attorneys' fees.]1 In any special action, a party may claim costs and attorneys' fees as in other civil actions. In a special action in an appellate court, a request for attorneys' fees shall be made in the pleadings or by motion filed and served prior to oral argument or submission of the special action. Within ten days after the court has issued an order declining jurisdiction or the clerk has given notice that a decision has been rendered, a party entitled to costs or attorneys' fees may file in the appellate court a statement of costs including attorneys' fees, and objections and a reply may thereafter be filed, all in accordance with the provisions of Rule 21, Arizona Rules of Civil Appellate Procedure.
Amended June 30, 1983, effective Sept. 1, 1983; Oct. 2, 1991, effective Dec. 1, 1991; Feb. 18, 1992, effective May 1, 1992. Amended Oct. 14, 1997, effective Oct. 15, 1997.
STATE BAR COMMITTEE NOTE
(a) This section is self-explanatory.
(b) This section covers the venue of special action proceedings. It is in general accordance with Arizona's venue statute, A.R.S. § 12-401, and A.R.S. § 12-905, the venue provision of the Arizona Administrative Review Act. It has been held in Territory v. Gaines, 11 Ariz. 270, 93 P. 281 (1908), that the predecessor of A.R.S. § 12-401, the present statute, by implication does not limit the Supreme Court's extraordinary writ jurisdiction. Thus, this section of the Rule giving the plaintiff the option of bringing the action in the county of plaintiff's residence or the county in which the public or private body has its principal place of business is not prevented by present law though it is an extension of present practice.
(c) Existing extraordinary writ procedure in Arizona may be cumbersome, but it is speedy. It is the object of this section controlling time to retain that potential for speedy justice by establishing what are in effect two tracks for special actions. Special actions which require urgent disposition may be expedited under the show cause procedure established by the Rule, with complete flexibility in the Court to control timing. On the other hand, situations which do not require expedited treatment, and in which the parties and the Court are content to follow the normal time limitations of the Rules of Civil Procedure, may proceed on that basis.
(d) The pleading Rule preserves existing Arizona practice except that it permits and encourages direct pleading by the real party in interest rather than in the name of the nominal party. Normally, an application for an extraordinary writ is met either by an answer, a motion to quash or dismiss, or some other form of opposition and all of these procedures are maintained under the Rule, leaving it to the necessities of the particular case to determine which shall be used and the consequences of each. The provision for forwarding the record is to preserve the certiorari review of records and to make it possible to use this procedure in any other case in which record review is required.
(e) The Rule as to trial is self-explanatory except as to the matter of utilization of juries. The jury has never been used in respect to certiorari or prohibition, 14 C.J.S. Certiorari § 170 (1939); 73 C.J.S. Prohibition § 2 (1951). On the other hand, an Arizona statute has permitted the utilization of juries in matters of mandamus, A.R.S. § 12-2025. This jury function is advisory only, O'Neill v. State Highway Department, 191 A.2d 481 (N.J.1963); Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914); 35 Am.Jur. Mandamus §§ 373, 374 (1941), and as a practical matter is substantially never used. Nonetheless, the court retains the discretion which it has traditionally had under the Arizona statute to utilize a jury for advisory purposes under the special action Rule, particularly if the claim is one which traditionally would sound in mandamus. Discovery in special action proceedings may be necessary in particular circumstances, though it will certainly not be routinely required, and will never be used in an appellate court since no trials will occur there. The Rule gives necessary latitude to allow discovery in those rare instances when it is necessary.
Caption editorially supplied.
17B A. R. S. Special Actions, Rules of Proc., Rule 4, AZ ST SPEC ACT Rule 4
Current with amendments received through 11/1/19
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