author: STARING, Presiding Judge: BREARCLIFFE, Judge, specially concurring:

text:
    Claudia DUFF, Petitioner, v. Hon. Kenneth LEE, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Tucson Police Department, a Municipal Agency; and the City of Tucson, a Municipal Corporation, Real Parties in Interest.
    No. 2 CA-SA 2018-0058
    Court of Appeals of Arizona, Division 2.
    Filed March 29, 2019
   STARING, Presiding Judge:

¶1 By special action, petitioner Claudia Duff, a plaintiff in a personal-injury action valued at less than $50,000, challenges the respondent judge's interlocutory order overruling her "Objection to FASTAR Pilot Program" and denying her "Motion for Arbitration Pursuant to A.R.S. § 12-133." She maintains the Fast Trial and Alternative Resolution Program ("FASTAR") does not apply to her case because at the time she filed her complaint, a published Pima County local rule required § 12-133 arbitration for all civil cases in which "the amount in controversy does not exceed $50,000.00."See Ariz. Sup. Ct. Order R-08-0023 (Sept. 30, 2008) (former Rule 4.2). She also argues FASTAR is invalid because it is "prohibit[ed]" by § 12-133 and "violates the Arizona Constitution." For the following reasons, we accept jurisdiction and deny relief, except that we grant Duff additional time to file her FASTAR "Choice Certificate." See FASTAR 103(b)(1).

Jurisdiction

¶2 Special-action review is highly discretionary and is available only when there is no "equally plain, speedy, and adequate remedy by appeal." Leon v. Marner , 244 Ariz. 465, ¶ 2, 421 P.3d 664 (App. 2018) (quoting Ariz. R. P. Spec. Act. 1(a) ). Duff has no remedy by appeal in this matter. Should she proceed by a short trial under FASTAR, her motion for § 12-133 arbitration would be moot, and the alternative dispute resolution component of FASTAR requires the plaintiff to waive the right to appeal. See FASTAR 103(b)(2)(B). Additionally, this case raises purely legal questions of first impression and statewide importance, including the interpretation and effect of certain constitutional and statutory provisions, as well as the construction of court rules and administrative orders. See, e.g. , Leon , 244 Ariz. 465, ¶ 2, 421 P.3d 664 ("Accepting jurisdiction is appropriate when the question raised is a purely legal matter of statewide importance, and one on which lower courts appear to require some guidance.").

Background

¶3 In 2015, by Administrative Order, our supreme court established the Committee on Civil Justice Reform, whose stated purpose was to "develop recommendations, including rule amendments or pilot projects, to reduce the cost and time required to resolve civil cases in Arizona's superior courts." Ariz. Sup. Ct. Admin. Order No. 2015-126 (Dec. 23, 2015). In its October 2016 report, the committee proposed a "short trial" pilot project for Pima County Superior Court, along with experimental rules "that apply in counties where the Supreme Court and the superior court in a county have authorized a short trial as an alternative to compulsory arbitration under [ A.R.S. § 12-133 and] Rules 72 through 77[, Ariz. R. Civ. P.]." That initial proposal left § 12-133 arbitration limits in place and provided that, in counties participating in FASTAR, "cases that are subject to compulsory arbitration under Rule 72 may instead proceed to a short trial as provided" by the proposed experimental rules. The committee, however, also recommended that a plaintiff in a FASTAR pilot-project county who chooses to proceed by § 12-133 arbitration, instead of by a short trial, be required to waive her rights to a superior court trial de novo and appeal; opportunities otherwise available in § 12-133 arbitration. See § 12-133(H) ("Any party to the arbitration proceeding may appeal from the arbitration award ... by filing ... a demand for trial de novo ...."); see also A.R.S. § 12-2101(A)(1) (affording right to appeal from "final judgment entered in an action ... commenced in a superior court"); Burnett v. Walter , 135 Ariz. 307, 308, 660 P.2d 1234, 1235 (App. 1982) ( § 12-2101(A)(1) provides appellate court with jurisdiction over final judgment after § 12-133(H) trial de novo).

¶4 In October 2017, our supreme court issued another administrative order, adopting a three-year FASTAR pilot program for Pima County, effective November 1, 2017. Ariz. Sup. Ct. Admin. Order No. 2017-116 (Oct. 26, 2017). Under the announced rules, however, which apply only in Pima County during the pilot phase, FASTAR is not an alternative to § 12-133 arbitration, but instead replaces it. See id. The pilot program includes its own "alternative resolution option," in which any arbitration would be binding as to the plaintiff, whose choice to arbitrate within FASTAR "must include express waiver of the rights: (A) to have a trial before a judge or jury, and (B) to appeal the Alternative Resolution decision, award, or judgment to the superior court or to an appellate court." FASTAR 101(a), 103(b)(2), 126(a)(1). A post-arbitration trial de novo in superior court and subsequent appeal would continue to be available to defending parties. See FASTAR 126(a)(2).

¶5 Pursuant to FASTAR "Eligibility Criteria," cases are subject to the pilot program only if "[t]he amount of money sought by each plaintiff exceeds the limit set by local rule for compulsory arbitration [under § 12-133 ]" and "[t]he amount of money sought by any party does not exceed $50,000, including punitive damages but excluding interest, costs, and attorneys' fees." FASTAR 101(b)(2), (3). To implement FASTAR and "establish the framework necessary to experiment with using short trials and an alternative resolution program instead of compulsory arbitration," the supreme court ordered that "[t]he jurisdictional limit for arbitration claims authorized by A.R.S. § 12-133 is established at one thousand dollars for Pima County for the duration of the pilot program." Ariz. Sup. Ct. Admin. Order No. 2017-116. Because a superior court generally has original jurisdiction only for those civil claims valued at $1,000 or more, see Ariz. Const. art. VI, § 14 (1), (3); State ex rel. Neely v. Brown , 177 Ariz. 6, 8-9, 864 P.2d 1038, 1040-41 (1993), the framework announced by the supreme court effectively eliminated § 12-133 compulsory arbitration in Pima County, see Hon. Jeffrey T. Bergin, Pilot FASTAR Program Aims for Improved Civil Justice , 54-Feb. Ariz. Att'y 28, 30 (2018) (lower limits for § 12-133 arbitration effectively replaced compulsory arbitration with FASTAR).

¶6 As the supreme court noted in its administrative order, the presiding judge of the Pima County Superior Court had requested that § 12-133 arbitration limits be lowered to $1,000. Ariz. Sup. Ct. Admin. Order No. 2017-116. Consistent with Rule 28.1, Ariz. R. Sup. Ct., the presiding judge had, in October 2017, filed a petition asking the supreme court to adopt new Local Rules of Practice for Pima County. Ariz. Sup. Ct. Order R-17-0051 (Oct. 24, 2017). The proposed rules had a new numbering system, such that they were intended to replace the pre-existing local rules in their entirety. Included among the proposed revisions was an amendment lowering the maximum amount for referral to § 12-133 arbitration to $1,000. The petition was opened for public comment in accordance with Rules 28(c) and 28.1(g), Ariz. R. Sup. Ct., see Ariz. Sup. Ct. Order R-17-0051 (Oct. 31, 2017), and our supreme court ultimately issued a final order approving the rule changes, effective July 1, 2018, see Ariz. Sup. Ct. Order R-17-0051 (Mar. 26, 2018).

¶7 In May 2018, Duff filed a complaint seeking damages for injuries she allegedly had suffered in a July 2017 motor vehicle accident involving a Tucson Police Department vehicle. In her accompanying certificate of compulsory arbitration, she certified the amount in controversy "does not exceed the applicable jurisdictional limit of $50,000 set by Pima County Superior Court Local Rule 4.2(a), and further certifies that the case is subject to compulsory arbitration as provided by Rules 72 through 77, A.R.C.P., and A.R.S. § 12-133(A)." She also filed a FASTAR certificate stating that the action did not meet "FASTAR eligibility criteria listed in FASTAR 101(b)," adding, "Specifically, the amount of money sought by the plaintiff does not 'exceed[ ] the limit set by local rule for compulsory arbitration,' FASTAR 101(b)(2), because that limit remains $50,000 under Pima County Superior Court Local Rule 4.2(a)."

¶8 Shortly thereafter, Duff filed an "Objection to FASTAR Pilot Program and Motion for Arbitration Pursuant to A.R.S. § 12-133," in which she argued the pilot program "is invalid and unconstitutional as applied to her, because it denies her substantive rights to arbitration, trial de novo, and direct appeal set forth in A.R.S. § 12-133 and related statutes." In addition, she maintained her "case [was] still subject to the existing statutory arbitration system, according to Pima County's [former] Local Rule 4.2(a)," the published local rule prior to July 1, 2018, that required § 12-133 arbitration for any case whose value "does not exceed $50,000.00." Ariz. Sup. Ct. Order R-08-0023 (Sept. 30, 2008). The respondent judge overruled her objection and denied her motion for § 12-133 arbitration, writing:

The Plaintiff's position is not well taken. The Statute in question requires the Superior Court by rule to establish jurisdictional limits for arbitration not to exceed $65,000.00 and requires arbitration for civil cases that do not exceed that jurisdictional limit. As part of the FASTAR Program, the Pima County Superior Court has changed its limits for referring cases to arbitration. The effect of the change is to significantly narrow the range of cases subject to mandatory arbitration. By doing so, the parties' right to a jury trial is preserved, as well as a party's right to appeal from that result. The Program makes available to the Plaintiff an option to voluntarily submit to an alternate dispute mechanism of voluntary arbitration. As part of this election, the Plaintiff voluntarily gives up [her] right to an appeal. Since the Plaintiff is given the right to opt into this alternate dispute mechanism, the Defendant's right to a jury trial and appeal must be preserved. The FASTAR Program provides for this. There is no right to an arbitration in any case, other than those cases that fall within the range prescribed by the Court.

This petition for special action followed.

¶9 Duff contends the respondent judge's order denying § 12-133 arbitration deprives her of "the benefits of compulsory arbitration" were she to participate in a "fast trial," including "the ability to admit evidence of her medical bills, or special damages, without need of an expert witness" and the ability to obtain sanctions if appropriate under Rule 68. And, to the extent the separate alternative dispute provisions of FASTAR are available to her, she asserts they would require her to forgo the opportunities for review by a superior court trial de novo and subsequent appeal. Duff summarizes the issues raised in her special action as follows: "(1) Whether the FASTAR pilot program applies to [her] case. (2) Whether the compulsory arbitration statute, § 12-133, prohibits the FASTAR arbitration program. (3) Whether FASTAR's arbitration program violates the Arizona Constitution."

Discussion

¶10 The Arizona Supreme Court has "constitutional authority to enact rules that govern procedural matters in all Arizona courts." State ex rel. Romley v. Ballinger , 209 Ariz. 1, ¶ 6, 97 P.3d 101 (2004) (citing Ariz. Const. art. VI, § 5 (5)). But that court's adoption of a rule "does not constitute a prior determination that the rule is valid and constitutional against any challenge," Scheehle v. Justices of the Supreme Court of Ariz. , 211 Ariz. 282, 298, 120 P.3d 1092, 1108 (2005), and this court "has the power to determine the validity and constitutionality of the rules promulgated by the Arizona Supreme Court in connection with a case before [it]," State v. Meek , 9 Ariz. App. 149, 151, 450 P.2d 115 (1969). The validity of FASTAR, and its applicability to Duff, are questions of law we review de novo. See In re Marriage of Waldren , 217 Ariz. 173, ¶ 6, 171 P.3d 1214 (2007).

¶11 Duff first argues FASTAR is "prohibit[ed]" by § 12-133, particularly in light of the statute's 1986 amendment "prescribing that the superior court establish jurisdictional limits for arbitration and require arbitration in certain cases." 1986 Ariz. Sess. Laws, ch. 360 pmbl.; see also Scheehle , 211 Ariz. 282, ¶ 6, 120 P.3d 1092 ("In 1986, the legislature amended the statute to require, as opposed to merely permit, superior courts to implement mandatory arbitration programs by rule."). She contends that a $1,000 limit for cases subject to § 12-133 arbitration "is lower than that mandated by law," that "FASTAR misappropriates county funds" intended for § 12-133 arbitration, and that FASTAR denies plaintiffs the trial de novo otherwise afforded by § 12-133(H). She also argues FASTAR violates the Arizona Constitution because it conflicts with § 12-133, which she characterizes as "a valid substantive law," requires an involuntary waiver "prohibited by the doctrine of unconstitutional conditions," and "denies plaintiffs the right to appeal," thus "abridg[ing] the appellate jurisdiction of the court of appeals." Most of Duff's arguments regarding the validity and applicability of FASTAR are premised on her contention that § 12-133 affords substantive or vested rights that may not be diminished by court rule.

¶12 Although this court has recognized that the "right to appeal from [ § 12-133 ] arbitration is a statutorily created substantive right," Graf v. Whitaker , 192 Ariz. 403, ¶ 9, 966 P.2d 1007 (App. 1998), we have found no Arizona authority, and the parties have cited none, that addresses whether the initial assignment of a case to § 12-133 arbitration-or to FASTAR or some other mode of proceeding-is itself a substantive right or is instead "the manner in which [a] right may be exercised[,] ... subject to control through the use of procedural rules," id. (quoting State v. Birmingham , 96 Ariz. 109, 110, 392 P.2d 775 (1964) ). As addressed below, we conclude FASTAR, the lowering of Pima County's arbitration limit to accommodate its implementation, and § 12-133 are all essentially procedural. And, "in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails." Seisinger v. Siebel , 220 Ariz. 85, ¶ 8, 203 P.3d 483 (2009).

Conflict with § 12-133 and Separation of Powers

¶13 The legislative, executive, and judicial branches of Arizona's government "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." Ariz. Const. art. III. The legislature "has plenary power to consider any subject within the scope of government unless the provisions of the Constitution restrain it." State ex rel. Napolitano v. Brown , 194 Ariz. 340, ¶ 5, 982 P.2d 815 (1999). But the supreme court "shall have ... [p]ower to make rules relative to all procedural matters in any court." Ariz. Const. art. VI, § 5 (5).

¶14 This does not mean our supreme court "will never recognize a statutory rule." State ex rel. Collins v. Seidel , 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984). Rather, it will "recognize 'statutory arrangements which seem reasonable and workable' and which supplement the rules" it promulgates. Id. (quoting Alexander v. Delgado , 84 N.M. 717, 507 P.2d 778, ¶ 8 (1973) ). And such "statutory rules shall remain in effect until modified or suspended by the rules promulgated by the supreme court." Ariz. Podiatry Ass'n v. Dir. of Ins. , 101 Ariz. 544, 546, 422 P.2d 108, 110 (1966).

¶15 The first step in a separation of powers analysis is determining whether the statute and court rule in question can be harmonized. Seisinger , 220 Ariz. 85, ¶ 24, 203 P.3d 483 ; see also State v. Hansen , 215 Ariz. 287, ¶ 7, 160 P.3d 166 (2007) ("Rules and statutes 'should be harmonized wherever possible and read in conjunction with each other.' ") (quoting Phx. of Hartford, Inc. v. Harmony Rests., Inc. , 114 Ariz. 257, 258, 560 P.2d 441, 442 (App. 1977) ). In Graf , for example, this court declined to invalidate a court rule that "limits appeals from compulsory arbitration to parties who have appeared and participated in the arbitration proceedings," 192 Ariz. 403, ¶ 1, 966 P.2d 1007, a limitation not found in § 12-133. Compare § 12-133(H) (any party to the arbitration proceeding may appeal), with Ariz. R. Civ. P. 77(a).

¶16 In that case, we first noted that § 12-133 is "entirely silent on the subject of waiver of the right to appeal." Graf , 192 Ariz. 403, ¶ 12, 966 P.2d 1007. We then noted that "numerous rules of procedure permit dismissal for procedural violations" but nonetheless do not "impermissibly diminish a litigant's right of action or appeal." Id. ¶ 13. Importantly, we also found the statute and rule at issue shared "a consistency of purpose," as the rule "enhance[d]" mandatory arbitration proceedings by "requir[ing] parties to participate." Id. ¶¶ 10, 14. Thus, we concluded the rule's requirement of participation "does not frustrate but rather advances the intent behind the statute." Id. ¶ 14. Similarly, we determined the rule did not eliminate the right to a jury trial, but established "reasonable prerequisites" for the exercise of that right. Id. ¶ 15 ; see also Phillips v. Garcia , 237 Ariz. 407, ¶¶ 16-17, 351 P.3d 1105 (App. 2015) ( Rule 76, Ariz. R. Civ. P., which conditions appeal from arbitration award on entry of judgment, permissibly "supplement[s]" and "clarif[ies]" § 12-133 ).

¶17 Because Graf and Phillips successfully harmonized the statute and the respective rules at issue, neither court had reason to address whether § 12-133 arbitration "can be characterized as substantive or procedural, the former being the legislature's prerogative and the latter the province" of our supreme court. Hansen , 215 Ariz. 287, ¶ 9, 160 P.3d 166 (identifying inquiry "when a statute and rule conflict"). Here, in briefing, the respondent judge maintains lowering the upper limit for § 12-133 arbitration to $1,000, in order to substitute FASTAR for those proceedings, does not conflict with the statute, because "nothing in the statute's plain language establishes a minimum amount" for cases subject to compulsory arbitration. He maintains we should not "read into" the statute such a requirement.

¶18 But in Scheehle , our supreme court construed § 12-133, as amended since 1986, "to require, as opposed to merely authorize, each superior court to adopt a mandatory arbitration program." 211 Ariz. 282, ¶¶ 6, 20, 120 P.3d 1092. We are unable to reconcile this construction with the suggestion that a county may entirely eliminate that program by setting an upper threshold for referral equal to the base amount of the court's jurisdiction.

¶19 For the same reason, we can find no "consistency of purpose," see Graf , 192 Ariz. 403, ¶ 10, 966 P.2d 1007, between the statute and the amended rule, when the express purpose of Administrative Order No. 2017-116 was to implement FASTAR "instead of" § 12-133 arbitration in Pima County. Cf. State v. Clifton Lodge No. 1174, Benevolent & Protective Order of Elks , 20 Ariz. App. 512, 513, 514 P.2d 265 (1973) ("Courts must avoid construction of statutes which would render them meaningless or of no effect."). Moreover, we decline to interpret the statute in a manner contrary to the construction set forth in Scheehle , a construction that has presumably been approved by the legislature's subsequent reenactments of the statute. See 2012 Ariz. Sess. Laws, ch. 44, § 1; 2007 Ariz. Sess. Laws, ch. 142, § 1; Scheehle , 211 Ariz. 282, ¶ 19, 120 P.3d 1092 (legislative reenactment of statute construed by supreme court presumed to be adoption of court's construction); City of Mesa v. Smith Co. of Ariz., Inc. , 169 Ariz. 42, 45, 816 P.2d 939, 942 (App. 1991) (court of appeals "bound by the construction of a statute given by the Arizona Supreme Court").

¶20 Accordingly, we must consider the nature of the provisions at issue to determine whether they are subject to the primary authority of the legislature or, alternatively, of the supreme court. Seisinger , 220 Ariz. 85, ¶ 24, 203 P.3d 483 ("[A] determination that a statute and court rule cannot be harmonized is but the first step in a separation of powers analysis."); Hansen , 215 Ariz. 287, ¶ 9, 160 P.3d 166. As the supreme court has explained,

[T]he substantive law is that part of the law which creates, defines and regulates rights; whereas the adjective, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the adjective law pertains to and prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective.

Birmingham , 96 Ariz. at 110, 392 P.2d 775.

¶21 Viewed in this context, we conclude § 12-133 is a "procedural" statute. It does not create or define substantive rights, but prescribes the method of enforcing those rights for claims of modest value, as those claims are identified in rules adopted by the superior court in each county. See § 12-133(A). For the same reasons, the change to Pima County's upper limit for § 12-133 arbitration, as well as FASTAR itself, are also procedural matters subject to supreme court rule. Cf. Scheehle , 211 Ariz. 282, ¶ 24, 120 P.3d 1092 (rules requiring attorneys to serve as arbitrators "are valid even if they are not completely cohesive" with § 12-133(C)"so long as they are an appropriate exercise of the court's constitutional authority" to regulate attorneys).

¶22 We thus disagree with Duff that this court "expressly determined" in Graf "that the arbitration statute is substantive." Rather, we concluded in Graf that the "right to appeal from arbitration"-for those subject to § 12-133 arbitration in the first instance-"is a statutorily created substantive right." 192 Ariz. 403, ¶ 9, 966 P.2d 1007. We have also observed that the nature of an "appeal" pursuant to § 12-133(H) -a trial de novo on law and fact-"is essential to the constitutionality of compulsory arbitration," in light of the constitutional right to a jury trial. Valler v. Lee , 190 Ariz. 391, 393, 949 P.2d 51, 53 (App. 1997). And we have held that the judgment that follows a § 12-133(H) trial de novo is subject to appeal in this court. Burnett v. Walter , 135 Ariz. 307, 308, 660 P.2d 1234, 1235 (App. 1982) ; see also A.R.S. § 12-2101(A)(1) (appeal may be taken to court of appeals "[f]rom a final judgment entered in an action or special proceeding commenced in a superior court").

¶23 But none of those rulings alters the nature of § 12-133 arbitration as essentially procedural, as it "prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective." Birmingham , 96 Ariz. at 110, 392 P.2d 775. To the extent "[a]ny party to the arbitration proceeding may appeal from the arbitration award ... by filing ... a demand for trial de novo on law and fact," § 12-133(H), the statute may properly be viewed not as "creat[ing]" a substantive right as we suggested in Graf , 192 Ariz. 403, ¶ 9, 966 P.2d 1007, but as "prescrib[ing] the method of enforcing" the substantive, constitutional right to a jury trial for those subject to the statutory arbitration procedure. Birmingham , 96 Ariz. at 110, 392 P.2d 775 ; see also Fisher , 236 Ariz. 71, ¶ 34, 336 P.3d 167 (consistent with Graf , state has "power to set reasonable prerequisites to exercise the right to a jury trial, provided the right is not eliminated"); Valler , 190 Ariz. at 393, 949 P.2d at 53 (constitutional nature of right to jury trial).

¶24 Similarly, Duff 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. Graf , 192 Ariz. 403, ¶¶ 9-14, 966 P.2d 1007. 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, see id. , a FASTAR rule may condition the right of appeal on a party's participation in the short-trial program. "[A] litigant does not have a vested right in any given mode of procedure ... so long as a substantial and efficient remedy is provided." Ray v. Rambaud , 103 Ariz. 186, 188, 438 P.2d 752, 754 (1968). FASTAR trials provide such a remedy by affording all parties a trial, including by jury, followed by a right to appeal. We cannot agree with Duff that a plaintiff's decision to forgo that opportunity in favor of FASTAR's binding alternative dispute resolution scheme is in any way "involuntary."

¶25 In sum, we conclude we cannot harmonize § 12-133, which "require[s] ... each superior court to adopt a mandatory arbitration program," Scheehle , 211 Ariz. 282, ¶ 20, 120 P.3d 1092, with amended rules that effectively eliminate that program in Pima County, in favor of FASTAR trials. See Hansen , 215 Ariz. 287, ¶ 8, 160 P.3d 166 (court "cannot create harmony where none exists"). However, because the FASTAR changes are procedural, rather than substantive, "modif[ying]" the provisions found in § 12-133, in order to facilitate FASTAR, was within our supreme court's rulemaking authority. Ariz. Podiatry Ass'n , 101 Ariz. at 546, 422 P.2d at 110 ; cf. Seidel , 142 Ariz. at 591, 691 P.2d at 682 (statute allowing admission of breath test results without expert testimony permissible as "alternative to the method of admission under the Rules of Evidence").

Application of FASTAR to Duff's Case

¶26 Duff maintains, "Regardless of the [FASTAR] program's validity, the applicable jurisdictional limit" when she filed her complaint was $50,000, "and it require[d her] case to be referred to compulsory arbitration pursuant to § 12-133." According to Duff's FASTAR certificate, "Notwithstanding the limit set by the Arizona Supreme Court's Administrative Order No. 2017-116, that administrative order is not a 'local rule' by its own terms, by A.R.S. § 12-133(A)(1), or by Rule 28.1, Ariz. R. Sup. Ct." The questions before us thus include whether Administrative Order No. 2017-116 was sufficient to "establish" an upper limit of $1,000 for § 12-133 arbitration, whether that change was dependent on approval of Pima County's new local rules, effective July 1, 2018, and, if the latter date controls, whether the new rule applies to then-pending cases.

¶27 In Arizona, any local rule "must be consistent with rules of statewide application and must be approved by the Supreme Court." Ariz. R. Sup. Ct. 28.1(c). As real parties in interest acknowledge, there exists an arguable conflict of effective dates "between the issuance of the Supreme Court's Administrative Order and Pima County's adoption of a corresponding local rule lowering the amount in controversy limit for arbitration."

¶28 As a general matter, Rule 28.1, effective January 1, 2017, "governs requests for approval of new or amended local rules for the superior court." Ariz. R. Sup. Ct. 28.1(a). The presiding judge's rule petition, accompanied by a full set of revised and renumbered, proposed local rules for Pima County, complied with those new procedures. Although Rule 28.1 does not provide for a local rule change by administrative order, we cannot say the supreme court lacked authority to establish new § 12-133 arbitration limits in order to implement the FASTAR pilot program in November 2017, with that new limit later reflected in the new Pima County local rules that became effective July 1, 2018.

¶29 In Ballinger , our supreme court emphasized that its constitutional authority to make procedural rules for any court "may not be supplemented, annulled or superseded by an inferior court." 209 Ariz. 1, ¶ 6, 97 P.3d 101 (quoting Anderson v. Pickrell , 115 Ariz. 589, 590, 566 P.2d 1335, 1336 (1977) ). In that case, the state had challenged a Maricopa County Superior Court Administrative Order that established a procedure for criminal defendants to "seek expedited review of a motion to modify pretrial release conditions." Id. ¶¶ 1, 4. The court vacated the order, finding it was, in effect, a local rule that had been implemented without the required supreme court approval. Id. ¶ 12.

¶30 Our supreme court distinguished the functions of a "rule of court" and a lower court's "administrative order," cautioning that local rules require supreme court approval and that "[m]erely placing the 'administrative' label on a measure that functions as a rule of court will not preserve it." Id. ¶¶ 7, 12. But in light of the supreme court's broad constitutional authority to make procedural rules for any Arizona court, we conclude this distinction does not similarly limit the manner in which that court promulgates procedural requirements. See Jones v. Lopez Plascencia , 10 Ariz. App. 253, 257, 458 P.2d 120 (1969) ("The procedure by which [the supreme court] determines to exercise [its constitutional rule-making] powers is peculiarly within its province.").

¶31 As noted in Administrative Order No. 2017-116, the Pima County Superior Court had requested the change to its § 12-133 arbitration limits, in order to facilitate FASTAR, and, consistent with Ballinger , the supreme court approved that request. In addition, implementation of FASTAR in Pima County reflects the supreme court's authority for "administrative supervision over all the courts of the state." Ariz. Const. art. VI, § 3.

Conclusion

¶32 FASTAR and local rules governing § 12-133 arbitration limits are procedural matters subject to the supreme court's constitutional authority. We conclude the change in those limits and the implementation of FASTAR in Pima County were an appropriate exercise of that authority, effective November 1, 2017, as set forth in Administrative Order No. 2017-116. Duff's case is subject to those provisions. Accordingly, we accept jurisdiction and deny relief, with the exception of affording Duff the opportunity to file a FASTAR "Choice Certificate," electing a FASTAR short trial or binding alternative dispute resolution, within twenty days of this order.

BREARCLIFFE, Judge, specially concurring:

¶33 I concur fully in the result and the entirety of the majority opinion but for its discussion in ¶¶ 18-19-and summary reflecting it at ¶ 25-with regard to "harmonizing" the FASTAR rule changes with A.R.S. § 12-133 and Scheehle v. Justices of the Supreme Court of Arizona , 211 Ariz. 282, 120 P.3d 1092 (2005). I see no need for harmonization because § 12-133 does not conflict with the FASTAR rule changes and Scheehle is therefore not a barrier to them.

¶34 In Scheehle , our supreme court acknowledged that in § 12-133, as amended since 1986, the legislature used language that "require[d], as opposed to merely authorize[d], each superior court to adopt a mandatory arbitration program." 211 Ariz. 282, ¶¶ 6, 20, 120 P.3d 1092. Duff asserts that the mandatory nature of the current statute bars the supreme court from enacting rules to diminish or eliminate the "right" to arbitration by any procedural rule. In Scheehle , however, the supreme court stated that its procedural rules "are valid even if they are not completely cohesive with related legislation, so long as they are an appropriate exercise of the court's constitutional authority." Id . ¶ 24. And "[a]lthough the legislature may, by statute, regulate the practice of law, such regulation cannot be inconsistent with the mandates" of the supreme court. Id . Duff's reading of § 12-133, and the majority's opinion necessarily, implies a "floor"-or minimum qualifying dollar limit to mandatory arbitration-that does not exist.

¶35 That is, Duff would have us not only read the statute to say that a superior court cannot require arbitration of cases with a value greater than $65,000, but also read into it that it must set a minimum value above which any case must be arbitrated. And that it must set each end of the range to ensure that some cases are subject to mandatory arbitration. Whether the legislature did not intend to put such express language in the statute originally, or simply has not felt the need to do so since, is immaterial; no such restriction on the supreme court's authority to approve a monetary cap like that in the FASTAR rule is in the statute. And, in any event, for the reasons discussed more fully in the majority opinion at ¶¶ 21-23, any such limit might run afoul of the separation of powers.

¶36 The respondent judge correctly argues in his briefing that "nothing in the statute's plain language established a minimum amount" for cases subject to compulsory arbitration and that we ought not read one into it. And, as Scheehle itself recognized, we ought to be "reluctant to imply a statutory limitation that would create a conflict in the constitutional prerogatives of separate branches of Arizona government." Id . ¶ 25. The majority opinion does more than needed by reading a conflict with the FASTAR rules into § 12-133 by way of Scheehle that must then, in turn, be resolved. There simply is no conflict. Otherwise, I concur in the result and reasoning in full.

      Rule 103(b) and (c), FASTAR, provide a case "will proceed by" a short trial if a plaintiff fails to "timely file a Choice Certificate," "not later than [twenty] days after the first filing by any defendant." Duff points out that the respondent judge's order overruling her objection to FASTAR was not issued until after that deadline had lapsed.

      The respondent judge agrees that acceptance of jurisdiction in this matter is "appropriate." As stated in Hurles v. Superior Court , a respondent judge may properly file a responsive pleading to a special action when, as here, "the purpose of the response is to explain or defend an administrative practice, policy, or local rule." 174 Ariz. 331, 333, 849 P.2d 1, 3 (App. 1993). Real-parties-in-interest Tucson Police Department and the City of Tucson take no position on the issue of jurisdiction, nor on the issue of FASTAR's validity.

      The FASTAR rules provide an exception to the plaintiff's waiver of appeal "[i]f the case includes a counterclaim, cross-claim, or third-party complaint." FASTAR 103(d)(2). In that circumstance, "the plaintiff retains the right to appeal and to have a trial before a judge or jury regarding the decision or award on the counterclaim, crossclaim, or third-party complaint." Id.

      The same day, Duff filed a notice of service of an offer of judgment pursuant to Rule 68, Ariz. R. Civ. P.

      A different judge granted Duff an interlocutory stay of proceedings pending special-action review of the respondent judge's ruling. After briefing was complete, this court filed a petition to transfer the matter to the Arizona Supreme Court pursuant to Rule 19(a)(1), (3), and (c), Ariz. R. Civ. App. P. The supreme court denied the petition on December 11, 2018.

      Section 12-133(A) provides a superior court "shall," "by rule of court," "[e]stablish jurisdictional limits of not to exceed sixty-five thousand dollars for submission of disputes to arbitration" and shall "[r]equire arbitration in all cases which are filed in superior court in which ... the amount in controversy does not exceed [that] jurisdictional limit."

      Specifically, Duff argues "the existing FASTAR rules misappropriate public funds without lawful authority" by "attempting to create an elective arbitration program and funding it with compulsory arbitration monies from Pima County's general revenues." Because the record before us is inadequate to address this claim, we decline to do so.

      At oral argument, Duff maintained Fisher v. Edgerton , 236 Ariz. 71, 336 P.3d 167 (App. 2014), stands for the proposition that § 12-133 arbitration is a substantive prerequisite to a jury trial-intended, according to Duff, as a real non-judicial alternative subject to legislative control. But in Fisher , this court construed a provision, found in § 12-133 and Rule 77, Ariz. R. Civ. P., that requires a party who appeals from an arbitration award to pay an opposing party's fees and costs on appeal if the judgment at a trial de novo is "not at least twenty-three per cent more favorable than the monetary relief ... granted by the arbitration award." 236 Ariz. 71, n.1, 336 P.3d 167 (quoting § 12-133(I) ); see also Ariz. R. Civ. P. 77(h) (same). Because that identical provision is found in both the statute and the court rules, Fisher provides no guidance as to whether arbitration is a substantive right necessarily subject to legislative control, as Duff maintains, or a manner of procedure properly governed by court rule. Indeed, in Fisher , the court relied on Graf when it explained that "the state has the power to set reasonable prerequisites to exercise the right to a jury trial, provided the right is not eliminated." Fisher , 236 Ariz. 71, ¶ 34, 336 P.3d 167 (emphasis added). And, Graf involved a challenge to a rule of court, not a statute. See 192 Ariz. 403, ¶ 1, 966 P.2d 1007.

      In Scheehle , the supreme court affirmed its policy of appointing members of the bar to serve as § 12-133 arbitrators. 211 Ariz. 282, ¶ 2, 120 P.3d 1092. It noted the 1986 amendment several times, see id. ¶¶ 3, 6, 20, stating that, in making that change, "the legislature must have anticipated a corresponding increase in the demand for arbitrators. Yet it made no provision for additional arbitrators. We therefore presume that the legislature relied on this Court's rule authorizing the service of the members of the bar as arbitrators to meet that demand." Id. ¶ 20.

      We reject Duff's somewhat strained argument that § 12-133 must be read in conjunction with A.R.S. § 22-201(B), which pertains to justice court jurisdiction, and therefore requires that the base amount for cases subject to § 12-133 arbitration be no lower than $10,000.

      The provision for a de novo jury trial in § 12-133(H) is irrelevant to the procedure set forth in the FASTAR rules. It is also unnecessary, from a constitutional standpoint, as FASTAR preserves the jury-trial rights of each party-a plaintiff may opt for a jury trial through FASTAR's "short trial" component, and, if a plaintiff instead chooses FASTAR alternative dispute resolution, the defendant may file for a de novo jury trial after that procedure is complete. See FASTAR 103, 117(a), 126(a)(2). Duff does not argue that a FASTAR "short trial" would be insufficient to satisfy her constitutional right to a jury trial.

      Duff originally argued that requiring a waiver of the right to appeal violated the doctrine of unconstitutional conditions. However, the respondent judge correctly notes that this doctrine only prohibits the state from conditioning a privilege on the waiver of a constitutional right, and the right to a civil appeal is statutory. See State v. Quinn , 218 Ariz. 66, ¶ 26, 178 P.3d 1190 (App. 2008).

      Before October 2017, former Local Rule 4.2 identified $50,000 as the upper limit for compulsory arbitration under § 12-133. Ariz. Sup. Ct. Order R-08-0023.

      Even were we to conclude that FASTAR is limited by the effective date of the 2018 local rule amendments, we reject Duff's assertion that "the new local rules do not apply to [her] case, because her filing date gives her a vested right to statutory arbitration and all the substantive rights it entails." As addressed above, statutory arbitration is not a substantive right, but a procedure, and Duff has no right, vested or otherwise, to a particular procedure. See Ray , 103 Ariz. at 188, 438 P.2d at 754 ; cf. Ariz. R. Civ. P. 81(b)(2)(A), (B) (new rules of procedure apply to cases pending on effective date unless supreme court specifies otherwise or trial court determines application "would be infeasible or work an injustice"); FASTAR 101(c) (FASTAR rules generally "supplement the Arizona Rules of Civil Procedure").


source: Caselaw Access Project

author: ECKERSTROM, Chief Judge:

license: Public Domain

text:
    PARADIGM DKD GROUP, LLC, a Nevada Limited Liability Company, dba Paradigm Tax Group; Eastpoint 22nd Market Place, LLC, an Arizona Limited Liability Company; and Thomas Francis Naifeh, a Married Man in His Sole and Separate, Individual Capacity and as a Taxpayer Representative, Plaintiffs/Appellees, v. PIMA COUNTY ASSESSOR, Department of Pima County; and Bill Staples, Pima County Assessor, Defendants/Appellants.
    No. 2 CA-CV 2017-0180
    Court of Appeals of Arizona, Division 2.
    Filed March 29, 2019
    Rusing Lopez & Lizardi PLLC, Tucson, By J. William Brammer, Jr., Michael J. Rusing, and Ricardo E. Robinson Bours, Counsel for Plaintiffs/Appellees
    Mesch, Clark & Rothschild PC, Tucson, By Gary J. Cohen and Paul A. Loucks, Counsel for Defendants/Appellants
    Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
   ECKERSTROM, Chief Judge:

¶1 Appellants Pima County Assessor and Bill Staples, Pima County Assessor (collectively, "the Assessor") assert the trial court erred in awarding attorney fees and costs to the appellees, Paradigm DKD Group, LLC, Eastpoint 22nd Market Place, LLC, and Thomas Francis Naifeh (collectively, "Paradigm") upon finding Paradigm substantially prevailed in its special action seeking public records pursuant to A.R.S. §§ 42-11009(A)(2) and 39-121.02. For the following reasons, we vacate the judgment below and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to upholding the trial court's ruling." Hammoudeh v. Jada , 222 Ariz. 570, ¶ 2, 218 P.3d 1027 (App. 2009). The facts in this matter are largely undisputed. The Assessor annually identifies, lists, and values all taxable property within Pima County. The Assessor then notifies parties related to each Pima County parcel of its valuation, typically no later than March 1 of each year. Taxpayer challenges are due sixty days after the Assessor issues notices of valuation. To facilitate such challenges, A.R.S. § 42-11009(A)(1) obligates the Assessor to provide taxpayers with rapid access to information relating to notices of valuation and assessment "in the media and format in which they are maintained."

¶3 In February 2014, Paradigm requested under § 42-11009 public records used to value property for purposes of ad valorem taxation, including "current values for 2014, intranet notice valuations, including notes, assessor cost models (intranet and internet versions) for tax year 2015, and valuation data and notes for 2015," as well as information regarding software necessary to read and review the data. The Assessor responded by directing Paradigm to the Assessor's public website. Paradigm then filed a special action to compel the Assessor to disclose the data.

¶4 After a hearing, the trial court ordered the Assessor to "produce all information he maintains concerning the valuation of property, including all information on the Assessor's intranet site that is accessible by his staff ... in the media and format in which they are maintained and in a way that is readable and usable by [Paradigm]," including any necessary source codes ("April 2014 Order"). This ruling "significantly expanded" the scope of Paradigm's original records request. The court denied without prejudice Paradigm's request for fees, reasoning that "it [was] premature to determine who the prevailing party [was]" at that point.

¶5 The Assessor moved to amend the trial court's April 2014 Order, arguing the ruling required it to disclose more data than was statutorily required by § 42-11009. In the alternative, the Assessor requested either a new trial or that the court make findings of fact and conclusions of law pursuant to Rule 52(a), Ariz. R. Civ. P. The court subsequently held an evidentiary hearing to determine "whether the Assessor had produced the records responsive to [Paradigm's] public records request."

¶6 In October 2014, the trial court ruled the Assessor's search for records in response to Paradigm's request was reasonable, Paradigm had not shown the Assessor withheld records responsive to the request, and the Assessor had "promptly provided the records [Paradigm] sought, given the volume of the records sought." The court found "the Assessor has attempted to search for, copy, and produce the records sought by [Paradigm] in good faith and within a reasonable period of time, given the volume of the records sought." The court also held Paradigm was not entitled to attorney fees.

¶7 Paradigm filed a motion for reconsideration of the trial court's October 2014 ruling, arguing it was entitled to fees and costs because the lawsuit was necessary to compel disclosure and because some data remained undisclosed or had been disclosed in unacceptable file formats. The court ordered the parties to meet and confer in an attempt to resolve the outstanding factual issues. On May 18, 2015, the parties filed a joint report, which outlined their continued disagreements regarding which files, if any, the Assessor was still obligated to disclose in order to comply with the court's April 2014 Order. After a status conference, the court appointed a special master to make factual findings as to the parties' continued disputes over what data had been disclosed.

¶8 The special master filed his Report in October 2016, and, in March 2017, the trial court adopted the Report's factual findings in full. The following findings are relevant to this appeal: On March 21, 2014, the Assessor provided Paradigm with a hard drive containing the source code for the Cost Construction System (CCS), used by the Assessor to value property, as well as the CCS databases in .bak format, notice of value data, and the Assessment Data Set. However, because of an error by the Assessor's information technology department, the CCS program was inoperable until June 23, 2014. On June 3, 2014, the Assessor disclosed redacted photographs and parcel notes; it disclosed a privilege log of the redactions on June 10, 2014. By late March 2015, the Assessor had added new information to its public website, including approximately 525 new data fields relating to property valuation. The special master concluded that by March 20, 2015, all the data the trial court ordered the Assessor to disclose in its April 2014 Order was available on the Assessor's public website, with the exception of the programming used to generate its Mass Appraisal Systems ("MAS source code"). The special master's Report also reflects that throughout much of the litigation, the Assessor was updating its "robust public website" to improve public access to records related to parcel valuation data, as well as developing a public terminal at the Assessor's office. Finally, the Report stated that the Assessor "expended substantial time and resources complying with the Court's order, considering the voluminous records required to be disclosed," that his production was timely "given the technical challenges involved," and that "the substantive production of valuation and assessment data fields has been in good faith."

¶9 In its ruling adopting the special master's Report, the trial court expressly agreed with the Report's observation that:

To date, after years of litigation, there has been and there is likely no feasible method for the Court or the Special Master to determine whether the Assessor has produced and listed all data and information maintained by the Assessor "related to the valuation" to the level of certainty that Paradigm demands.

Over Paradigm's objection, the court adopted the special master's findings in full, including that "the Assessor ... produced all of the records." The court further ruled the special master's factual findings were "more detailed and expansive" than its own October 2014 ruling denying fees and costs, and therefore it ruled Paradigm was entitled to again move for fees and costs.

¶10 In July 2017, the trial court granted Paradigm's motion for fees, awarding Paradigm $148,557 in attorney fees and $3,580.26 in costs. The court relied on the factual findings in the special master's Report "along with its own review of the record" to determine Paradigm had "substantially prevailed" up to May 2015. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

Attorney Fees under A.R.S. § 39-121.02

¶11 The Assessor contends the trial court misinterpreted A.R.S. § 39-121.02(B) and abused its discretion in awarding Paradigm attorney fees and costs. We review questions of statutory interpretation de novo; we review a trial court's award or denial of attorney fees for abuse of discretion. Democratic Party of Pima Cty. v. Ford , 228 Ariz. 545, ¶ 6, 269 P.3d 721 (App. 2012).

¶12 Section 39-121.02(A) provides: "Any person who has requested to examine or copy public records pursuant to this article, and who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court." Under § 39-121.02(B), "[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed." "Both the determination that the petitioner substantially prevailed and the award of fees after making such a finding are at the discretion of the trial court." Hodai v. City of Tucson , 239 Ariz. 34, ¶ 41, 365 P.3d 959 (App. 2016). To date, no Arizona case has addressed what it means to "substantially prevail" under § 39-121.02.

¶13 In construing a statute, our "primary goal ... is to give effect to the intent of the legislature." Cornman Tweedy 560, LLC v. City of Casa Grande , 213 Ariz. 1, ¶ 8, 137 P.3d 309 (App. 2006). "If the statute is clear and unambiguous, we apply [its] plain meaning." Hourani v. Benson Hosp ., 211 Ariz. 427, ¶ 7, 122 P.3d 6 (App. 2005). "We resort to additional considerations 'such as the statute's context, history ... and purpose' " if the language is ambiguous. Taylor v. Cruikshank , 214 Ariz. 40, ¶ 10, 148 P.3d 84 (App. 2006) (quoting State v. Fell , 203 Ariz. 186, ¶ 6, 52 P.3d 218 (App. 2002) ).

¶14 The Assessor argues the plain language of § 39-121.02 unambiguously provides for fees connected only to "denial of access to records already requested." According to the Assessor, this required the trial court to consider whether the litigation was unnecessarily extended to include the production of records outside the scope of Paradigm's original public records request. Specifically, the Assessor argues the statute provides a party may "substantially prevail" only to the extent litigation compels production of "such records" within the scope of an initial public records request. The Assessor maintains the court erred in awarding fees and costs for litigation to secure information beyond the scope of Paradigm's original request, which the Assessor fully cooperated in providing.

¶15 Paradigm disagrees, contending that "[d]etermining which party has 'prevailed' or 'substantially prevailed' is simply a matter of semantics," that is, whether "one party obtained more relief than the other, and to what degree." Paradigm further argues the Assessor "obtained no relief-he asked for none and none was awarded"; thus Paradigm "was completely, not just substantially, successful in its action." In essence, Paradigm argues that once a petitioner has secured some information it would not have received "but for" the lawsuit, it has substantially prevailed and is entitled to all attorney fees incurred in the subsequent litigation regardless of whether the government cooperated in providing further information thereafter.

¶16 After noting that no Arizona case or statute defines what it means to "substantially prevail," the trial court looked to federal case law interpreting the Freedom of Information Act, 5 U.S.C. § 552. The court applied the D.C. Circuit's test, which requires a party seeking fees to show the action was necessary to obtain the information and a causal nexus exists between the action and the agency's surrender of information, which includes considering whether the agency "made a good faith effort to search out material and to pass on whether it should be disclosed." Cox v. U.S. Dep't of Justice , 601 F.2d 1, 6 (D.C. Cir. 1979), overruled on other grounds by Crooker v. Bureau of Alcohol, Tobacco & Firearms , 670 F.2d 1051 (D.C. Cir. 1981).

¶17 Applying this "causal nexus" standard, the trial court reasoned Paradigm was entitled to fees because "the Assessor had decided to post additional records to his website that were not previously publicly available." "[A]s to the events that occurred after the parties met and conferred in May 2015," the court held Paradigm "continued to prosecute the case but was not successful in uncovering any additional information revealing that the Assessor was maintaining records that he did not make publicly available." The court further reasoned "the litigation also shed light on whether [parcel valuation] records are publicly available," which "was a worthwhile goal" advancing "the purpose of A.R.S. § 42-11009(a)." Because the court found Paradigm's special action furthered the statutory purpose, it awarded Paradigm fees through May 2015.

¶18 We agree with the Assessor that the trial court, in its otherwise thorough and well-reasoned order, overlooked two necessary factors in considering whether Paradigm substantially prevailed in each phase of the litigation. Specifically, the court failed, first, to identify the extent to which the record reflects production beyond the scope of Paradigm's original request. Second, it failed to articulate the point at which the Assessor ceased to function in an adversarial role in this action. Both factors are necessary to a comprehensive evaluation of whether, and to what extent, a party has substantially prevailed in an action brought under § 39-121.02.

Scope of Records Request

¶19 The trial court failed to consider the scope of the original records request when it determined that Paradigm had substantially prevailed through May 2015. By the plain text of § 39-121.02(A), a party may bring a special action for public records disclosure only after making a direct request of the public agency to examine or copy public records and the request has been denied. Litigation that expands the scope of an original request effectively bypasses the process contemplated by § 39-121.02 because it allows a party to seek additional records without first making a request to the agency as provided by the statute. To the extent a party incurs attorney fees in litigating the production of records outside its original request, it cannot be said to substantially prevail because it has not followed the statutory procedure necessary to obtain public records and trigger its ultimate entitlement to fees in litigation.

¶20 Thus, Paradigm asks us to find not only that it could allowably bypass the statutorily mandated request process based on an expanded records request during the course of litigation, but that it should be awarded attorney fees for doing so. Such a holding would frustrate the purpose of § 39-121.02, which expressly contemplates that parties attempt to gain access to public records extra-judicially before bringing such a request to court.

¶21 Here, the record suggests that the trial court ordered records production outside the scope of the Assessor's original request, and that the Assessor not only fulfilled the original records request, but also produced the additional records ordered by the court. Notably, the court adopted the special master's conclusion that by March or June 2014, the Assessor had produced a substantial portion, if not all, of the valuation data contained in Paradigm's original records request and that the court's April 2014 Order "significantly expanded the scope of public records subject to production." Thus, the record suggests that at some point fairly early in the litigation process, any continuing dispute centered on records beyond the scope of the original request. For example, the special master found the Assessor was not in full compliance with the April 2014 Order because it had not produced the MAS code, which was not specifically named in the original records request, although it was within the scope of the court's April 2014 Order. On remand, when determining whether and to what extent Paradigm substantially prevailed, the trial court should consider at what point in the litigation the Assessor had complied with Paradigm's original records request.

Adversarial Nature of Proceedings

¶22 In evaluating the propriety and amount of attorney fees in public records litigation, trial courts should also consider whether an agency has acted or continued to act in an adversarial role. Semantically, one does not "prevail" over an agency cooperating with, or acting to facilitate, one's goals; instead, one prevails over an adversary. See The American Heritage Dictionary 1397 (5th coll. ed. 2011) (prevail means "to be greater in strength or influence; triumph"). As discussed, the trial court sought guidance from the D.C. Circuit's test for evaluating attorney fees under a "substantially prevailing" standard. That test recognizes the level of governmental cooperation as a necessary factor to consider. See Cox, 601 F.2d at 6.

¶23 Our own jurisprudence addressing the propriety of fees under § 39-121.02 supports this understanding of what it means to substantially prevail. For example, in Arpaio v. Citizen Publ'g Co. , this court held a public officer who was not the custodian of public records may nevertheless be considered an adverse party and held responsible for attorney fees under § 39-121.02 if he worked to prevent disclosure of the records. 221 Ariz. 130, ¶¶ 9-12, 211 P.3d 8 (App. 2008) ("[A]llowing the trial court to shift legal fees incurred during a dispute over access to those records to a third party when the third party engendered the dispute over access and is a party to the action."). Similarly, in Ford , we held that, where " 'collateral issues' actually were ... the crux of the case" disputed by the parties, the trial court appropriately considered the government agency's level of cooperation regarding those collateral matters when denying attorney fees. 228 Ariz. 545, ¶ 14, 269 P.3d 721.

¶24 Furthermore, limiting attorney fees and costs to those expenses incurred during the adversarial stage of a public records special action advances the legislative intent of § 39-121.02(B). As the trial court noted, in 2006 the legislature amended § 39-121.02 to include the "substantially prevailed" language. 2006 Ariz. Sess. Laws, ch. 249, § 1. This amendment "allow[ed] courts to more liberally award damages against state agencies if the plaintiff substantially prevail[ed]." S. Fact Sheet for S.B. 1225, 47th Leg., 2d Reg. Sess. (Ariz. May 9, 2006). Limiting attorney fees and costs to the period during which a governmental agency acts as an adversary incentivizes the agency to act in good faith and collaborate rather than resist disclosure. Conversely, to allow a private litigant to collect fees in perpetuity, so long as it continually expresses dissatisfaction with the records the agency has disclosed, would risk entrenching a private litigant as a paid watchdog at the government's expense-surely a result the legislature did not intend. Further, were courts to measure a plaintiff's success by the amount of information it secured above and beyond its original records request, we would penalize agencies that act cooperatively, comprehensively, and in good faith and would discourage agencies from improving their systems for making data publicly available, all of which counters the purposes of the public records statute.

¶25 Here, the record demonstrates that the trial court overlooked its own repeated findings suggesting that during substantial parts of the proceedings, the Assessor acted not as an adversary but rather had cooperated in good faith to provide Paradigm the information it sought. Indeed, the court repeatedly found the Assessor acted reasonably, disclosed records in a timely fashion, and functioned more as a collaborator than an adversary in developing methods to make public records available not just to the individual plaintiff, but to the broader public.

¶26 To be sure, the record also suggests the underlying action was necessary for Paradigm to obtain the information it requested in its letter of February 2014. In this sense, the Assessor played an adversarial role at the start of the litigation. However, the record also reflects that the Assessor ceased, at some point, to operate in a fashion reasonably characterized as adverse to Paradigm. For example, the trial court ruled in October 2014 that the Assessor "promptly provided the records [Paradigm] sought, given the volume of the records sought" and that the Assessor "attempted to search for, copy, and produce the records sought by [Paradigm] in good faith and within a reasonable period of time, given the volume of the records sought." Similarly, the trial court adopted the special master's findings that as early as March 2014 the Assessor had produced the hard drive with the CCS source code, CCS databases, and notice of value data; by June 2014 the Assessor made its CCS program operational for Paradigm; over the course of the litigation the Assessor provided valuation data outside the scope of Paradigm's original request; and concurrently with its disclosures directly to Paradigm, the Assessor updated its public website to satisfy its statutory disclosure requirements. Given these findings, the record suggests that, at some stage of the proceedings, Paradigm was no longer "prevailing" over an adversarial governmental agency, but rather had secured the cooperation of the Assessor's office to assist it. At that stage, it would no longer be semantically accurate to claim that Paradigm was substantially prevailing over an adversary in litigation. Nor would it conform to the public policy goals of § 39-121.02(B) to so conclude.

¶27 In summary, we hold a party may "substantially prevail" under A.R.S. § 39-121.02 for the purposes of attorney fees and costs only to the extent an action is necessary to accomplish the purpose of an original records request. Although it may occasionally be appropriate for a court to incorporate a new records request into an ongoing action, the determination of fees and costs should account for the extent to which a litigation expanded the scope of an original request. Second, a party substantially prevails only so long as the entity tasked with disclosure opposes such disclosure or otherwise acts adversarially toward the party seeking records. Whether and when a party ceases to so act is within the purview of the trial court, which may consider, among other things, whether a nexus exists between the action and the surrender of relevant information, whether the entity acts in good faith or continually resists disclosure, and whether the entity acts reasonably and diligently to satisfy its disclosure obligations, given the request. Certainly, once an entity's disclosures fully satisfy the underlying records request, the entity ceases to act in an adversarial capacity, even if continued litigation results in additional records production. However, as the facts of this case demonstrate, the adversarial relationship may cease well before the close of litigation.

Disposition

¶28 Because the trial court failed to account for the above two factors in considering Paradigm's entitlement to attorney fees in its otherwise comprehensive and scholarly order, we grant the Assessor relief and vacate that order. But we remand the matter to the trial court to determine whether, and at what point, the Assessor produced records outside the scope of Paradigm's original request. Additionally, the court should ascertain at what stage in the proceedings the Assessor ceased to act as an adversary in complying with Paradigm's demands for more information and reevaluate Paradigm's request for attorney fees accordingly.

Attorney Fees on Appeal

¶29 Because Paradigm is not the prevailing party on appeal, its request for attorney fees pursuant to A.R.S. § 39-121.02(B) is denied.

      The parties agree the Assessor's February 2014 response was factually inaccurate and valuation documents qualifying as public records were not, in fact, available on the Assessor's website as of February 2014. However, a special master appointed by the trial court in 2015 later found that "the Assessor made a good faith effort to provide the public records with his website's capability."

      Paradigm's complaint enumerated the following as unavailable on the Assessor's public website: legal class breakdowns; cost model matters, including "[l]isting of a grade," "[r]anking for each component," "[c]omputation components by name and letter code-line item," "[o]verride demarcations," "[u]se percentage," identification of which agent entered or reviewed information for a given parcel, appraiser number, and ratios; (then-)current 2014 valuations for land, building/improvements, "FCV," "LPV," and assessment ratios; and "[a]djustments to various valuation approaches pursuant to notes, calculations or otherwise."

      As discussed below, the trial court adopted in full the factual findings of a special master's Report, which concluded that the court's April 2014 Order had "significantly expanded the scope of public records subject to production."

      The Assessor also offered its "notice of compliance" with Paradigm's original February 2014 records request.

      In a memorandum filed after the evidentiary hearing, Paradigm asserted the Assessor had not produced a variety of data, including land journals, land valuations, mass market appraisals, nine individual senior appraiser databases, the exceptions list, logs of changes to the Assessor's source code application, records deleted from tables furnished with the source code application, images of property cards and other records used by the Assessor, unofficial County Recorder records maintained on the Assessor's servers, an index of photos, and complete genealogies.

      This disclosure included 6,775,103 records.

      The special master's Report asserts that "this failure to produce is mitigated by disclosure of the residential models, which allows a programmer to incorporate them into an SQL database." The Assessor produced the MAS source code by March 10, 2017, by which time the trial court found "the Assessor has produced the public records Paradigm sought in its public records requests."

      Although the trial court never explicitly granted Paradigm's motion for reconsideration, its award of attorney fees implicitly granted reconsideration of its October 2014 order denying fees.

      The trial court held, variously, that Paradigm substantially prevailed "up to May 2015"; that it would award fees "through May, 2015"; and that Paradigm substantially prevailed "through May 2015."

      Because the trial court expressly addressed the Assessor's contention that Paradigm did not substantially prevail under § 39-121.02, we disagree with Paradigm that the Assessor waived this issue by failing to raise it below. See Trantor v. Fredrikson , 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (purpose of requiring party to make specific objection in trial court is to give court an opportunity to rule before appellant claims error on appeal).

      This is not to say it would never be appropriate for a court to incorporate a new records request into an ongoing special action, rather than to require a new request outside of that litigation. A trial court could reasonably conclude that a new records request would be futile when the agency receiving the request has been repeatedly oppositional, has refused to timely produce records, or has stated that it will refuse to comply with future requests. The record does not suggest any such concern here.

      Here, the trial court focused on identifying the point at which Paradigm ceased to be "successful in uncovering any additional information revealing that the Assessor was maintaining records that he did not make publicly available." To the extent the court found that attorney fees should not be assessed after the petitioner no longer secures or uncovers additional information, this was an unobjectionable criterion for limiting fees. However, to the extent that ruling suggests that the Assessor had any statutory duty to make information publicly available on a website, that would not be a correct consideration under § 39-121.02. That statute enforces public accessibility to governmental information upon an individual's request to "examine or copy" certain records; it does not require that information be readily accessible in any particular format or through any particular portal. § 39-121.02(A).

      We do not suggest, however, that a public entity could wholly avoid the effect of § 39-121.02 by refusing extra-judicial records requests yet promptly complying with those requests only when a party opts to litigate the issue. Such conduct would be patently adversarial.

      We recognize the possibility that Paradigm could persuade the trial court the Assessor acted as an adversary up to the point when the Assessor ceased to produce any new information. The court may weigh the dates of disclosure, as well as the extent to which disclosures went above the original scope of the records request, in its analysis.


text:
    Tommy Allen GOW, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 16SC783
    Supreme Court of Colorado.
    April 29, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Julia Chamberlin, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Phillip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 In this case, we are asked to decide whether Tommy Allen Gow's federal and state constitutional rights were violated when he was subjected to a pat down and search of a box that he was carrying before accepting a courtesy ride with a sheriff's deputy. We now conclude that the pat down and search of the box were constitutionally permissible because on the facts as found by the trial court, Gow initiated the encounter with the deputy by asking for a courtesy ride and then voluntarily and expressly consented to the pat down and search of the box as preconditions of getting into the deputy's car. Accordingly, we affirm the judgment of the division below, although our analysis rests on narrower grounds than those on which the division relied.

I. Facts and Procedural History

¶2 At approximately 2:15 a.m., a Jefferson County Deputy Sheriff was driving through a residential neighborhood when he noticed a man walking down the street carrying a box. According to the deputy, he pulled up next to the man, got out of his patrol car, and asked "what he was up to." The man, Gow, responded that he had just come from a friend's house where he had purchased an iPad from the friend. He then asked the deputy if the deputy wanted to see his identification. The deputy said that he did, and after checking to make sure that Gow had no outstanding warrants, the deputy told Gow that he was free to leave. At some point during this interaction, Gow showed the deputy the iPad. The device was in its box, and the officer was only able to see the screen.

¶3 As Gow walked away, the deputy stayed in his patrol car and watched him. When Gow turned around a corner and left the deputy's sight, the deputy pulled up to the intersection where Gow had turned and continued watching him. Gow was looking around as he was walking, and the deputy continued to watch him walk away. The deputy then decided to drive down the street and leave the area. According to the deputy, as he was about to pass Gow, Gow began waving his hands at the deputy and signaled for the deputy to roll down his window. The deputy stopped and rolled down the passenger side window. Gow then walked up and asked the deputy to give him a ride to his friend's house, which was four blocks away. The deputy replied, "Sure," but said that he had to pat Gow down before allowing him to get into the car, to ensure that Gow did not have any weapons or anything illegal on him. According to the deputy, Gow responded, "Okay. I don't have weapons."

¶4 At that point, the deputy got out of his patrol car, patted down Gow, and asked to look inside the box again, to ensure that no weapons were hidden underneath the iPad in the box. Gow said, "Sure," and as he pulled out the iPad, the box fell to the ground and two small plastic baggies fell out. The deputy directed Gow to hand him the baggies, and Gow complied. The deputy then asked what was in them, and Gow responded that it was speed. The deputy arrested Gow and transported him to the Jefferson County jail. There, in the process of booking Gow, the deputy looked through Gow's wallet, and he found another little plastic baggie containing a white crystal substance that the deputy believed to be additional narcotics. According to the deputy, when he asked Gow about this baggy, Gow responded, "Oh, I didn't even know I had that in there."

¶5 The prosecution subsequently charged Gow with possession of more than two grams of methamphetamine and possession of four grams or less of a schedule I controlled substance. Before trial, Gow moved to suppress, among other things, the evidence derived from his encounters with the deputy, including the drugs at issue, arguing that those encounters and the search of the iPad box violated his federal and state constitutional rights.

¶6 The trial court conducted a hearing on Gow's motion, and at this hearing, Gow testified, contrary to the deputy's testimony, that the deputy had approached him as he was walking down the street and "hollered" at him to come over. According to Gow, he approached the deputy and asked why the deputy was harassing him. The deputy responded that the department had received reports of people breaking into cars in the area. The deputy then asked what was in the box that Gow had in his hands, and Gow responded that he had an iPad. Gow opened the box and told the deputy that he had just bought it. He handed the box to the deputy, who handed it back and asked if Gow had anything that would poke, stick, or otherwise hurt the deputy. Gow responded, "No, sir," at which point the deputy said, "I am going to pat you down," which he proceeded to do. The deputy then asked Gow for identification. Gow provided his identification, the deputy ran a background check on it, and the deputy told Gow that he was free to leave. Gow walked away, but the deputy pulled up again and said that he was going to search Gow. According to Gow, he did not signal the deputy to stop or request a ride. Gow testified that the deputy took the box, and the two baggies fell on the ground.

¶7 In an oral ruling, the trial court denied Gow's motion to suppress. The court recognized that the deputy's and Gow's accounts of the encounters at issue were in conflict. The court stated, however, that it was persuaded by the facts as relayed by the deputy. Based on those facts, and particularly on the facts that the deputy had used "no lights, no siren, no gun, [and] no force" and that the encounters reflected a "cooperative process" with "a common goal essentially of getting Mr. Gow from one place to another safely," the court found that the encounters between Gow and the deputy were consensual. In addition, with respect to the pat down, the court explained that it "certainly is logical ... that one must make sure they are going to be safe in giving a ride to somebody...." For these reasons, the court found that the pat-down search and search of the iPad box did not violate Gow's constitutional rights.

¶8 The case proceeded to trial, and the jury ultimately convicted Gow as charged. Gow appealed, arguing that the trial court had erred when it refused to suppress the evidence seized by the deputy when he subjected Gow to a pat-down search and search of the iPad box. In Gow's view, both of these searches violated his constitutional rights.

¶9 In a unanimous, published opinion, the division disagreed, holding:

[T]here is no affront to the Fourth Amendment when a police officer requires a person who has voluntarily sought assistance, but whom the officer has no duty to assist, to undergo a pat-down search as a condition of entering a police vehicle, even when the officer does not have a reasonable, articulable suspicion that the person is armed and dangerous.

People v. Gow , 2016 COA 119M, ¶ 2, --- P.3d ----. In so holding, the division "necessarily disagree[d]" with a prior division's ruling in People v. Berdahl , 2012 COA 179, ¶ 19, 310 P.3d 230, 235, in which that division had held that to justify a warrantless pat-down search of an individual before allowing entry into a police vehicle, an officer must have a reasonable, articulable basis to conclude that the person is armed and dangerous. Gow , ¶ 3.

¶10 Gow petitioned this court for certiorari review, and we granted his petition.

II. Analysis

¶11 We begin by setting forth the applicable standard of review of a trial court's suppression order. We then discuss the principles governing the consent exception to the Fourth Amendment's warrant requirement and the circumstances in which consent is considered voluntary. Applying those principles here, we conclude that the deputy's pat down of Gow and search of the iPad box were constitutional because the trial court's amply supported factual findings demonstrate that Gow had initiated the encounter with the deputy by asking for a courtesy ride and then voluntarily and expressly consented to the pat down and search of the box as a precondition of getting into the deputy's car.

¶12 Accordingly, we affirm the judgment of the division below.

A. Standard of Review and Applicable Legal Principles

¶13 Our review of a trial court's suppression order presents a mixed question of fact and law. People v. Hyde , 2017 CO 24, ¶ 9, 393 P.3d 962, 965. We defer to the trial court's factual findings if they are supported by the record, but we assess the legal effect of those facts de novo. Id. In our de novo review, we will correct the trial court's legal conclusions if the court applied an erroneous legal standard to the facts of the case. People v. Munoz-Gutierrez , 2015 CO 9, ¶ 14, 342 P.3d 439, 443.

¶14 It has been long settled that a pat down, or a "frisk," is a search. See Terry v. Ohio , 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States and Colorado Constitutions protect persons against unreasonable searches and seizures. U.S. Const. amend. IV ; Colo. Const. art. II, § 7. A search is presumptively unreasonable when it is conducted without a warrant unless the search falls within one of the well-established exceptions to the warrant requirement. People v. Pate , 71 P.3d 1005, 1010 (Colo. 2003).

¶15 As we explained in People v. Berdahl , 2019 CO 29, --- P.3d ----, which we are also deciding today, voluntary consent is one such exception. "Consent is voluntary if it is 'the product of an essentially free and unconstrained choice by its maker.' " Id . at ¶ 20 (quoting Munoz-Gutierrez , ¶ 16, 342 P.3d at 444 ). "It cannot be 'the result of circumstances which overbear the consenting party's will and critically impair his or her capacity for self-determination.' " Id. (quoting People v. Magallanes-Aragon , 948 P.2d 528, 530 (Colo. 1997) ).

¶16 Consent is involuntary, however, if it is "the result of duress or coercion, express or implied, or any other form of undue influence exercised [by the police] against the defendant." Id. at ¶ 21 (quoting Munoz-Gutierrez , ¶ 17, 342 P.3d at 444 ). "Undue influence includes promises, threats, and intrusive or threatening police conduct." Id. (quoting Munoz-Gutierrez , ¶ 17, 342 P.3d at 444 ).

¶17 "Consent may be express, or it may be implied through words, actions, or both." Id. at ¶ 22.

¶18 "To assess whether a person's consent was voluntary, courts must apply an objective test that takes into account the totality of the circumstances and determines whether the defendant could reasonably have construed the police conduct to be coercive." Id. at ¶ 23. In making this assessment, we consider, among other things, "the defendant's age, education, and intelligence; the duration, location, and circumstances of the search; the defendant's state of mind; and any other factors that could have affected the defendant's free and unconstrained choice in consenting to the search." Id. This includes whether the defendant knew that he or she had a choice, although consent can be voluntary even if the defendant did not know that he or she was free to withhold consent. Id. In this regard, we note that although Colorado statutory law provides that peace officers must explain to suspects that they have the right to refuse consent, an officer's failure to give this advisement is only one factor in determining the voluntariness of consent. § 16-3-310(1)(b)(II), (3), C.R.S. (2018); accord People v. Chavez-Barragan , 2016 CO 66, ¶ 38, 379 P.3d 330, 339.

¶19 The essential consideration in determining the voluntariness of a defendant's consent to search is "the impact of overbearing, coercive, or deceptive police conduct on a person with the knowledge and particular characteristics of the defendant." Magallanes-Aragon , 948 P.2d at 533 ; see also People v. Marujo , 192 P.3d 1003, 1007 (Colo. 2008) (listing factors that may demonstrate that a reasonable, innocent person would not feel free to decline a police officer's request or to terminate an encounter).

B. Application

¶20 Here, as noted above, the trial court credited the deputy's testimony over the often contrary testimony given by Gow and found that both encounters between the two men were consensual and did not violate Gow's constitutional rights. The court further found that the pat down was reasonable because it "certainly is logical ... that one must make sure they are going to be safe in giving a ride to somebody...." Although we acknowledge that Gow's description of the encounters at issue differed from that of the deputy, we must defer to the trial court's factual findings and credibility determinations because they are supported by the record. See Hyde , ¶ 9, 393 P.3d at 965.

¶21 The question thus becomes whether the trial court correctly concluded that the searches at issue were consensual. As noted above, we assess de novo the legal effect of the facts as found by the trial court. See id. Here, considering the totality of the circumstances in light of the factors set forth above, we agree that the searches at issue did not violate Gow's constitutional rights. We reach this conclusion for a number of reasons.

¶22 First, on the facts as found by the trial court, when the deputy advised Gow that he would need to conduct a brief pat down to confirm that Gow did not have any weapons or anything illegal on him, Gow responded, "Okay. I don't have weapons." Then, when the deputy asked to look in the iPad box to ensure that it also did not contain any weapons, Gow replied, "Sure." These responses evince express consent to the searches at issue.

¶23 Second, the facts as found by the trial court reflect no duress or coercion-express or implied-or any other form of undue influence on the deputy's part. To the contrary, upon Gow's request, the deputy agreed to give him a courtesy ride and then conducted the brief pat down and search solely to ensure that Gow did not have any weapons or anything illegal on him. As noted above, Gow expressly agreed to these searches.

¶24 Third, we perceive nothing about Gow's age, education, or intelligence that affected his ability to consent voluntarily, and Gow does not suggest that any such factor existed. The fact that Gow expressly agreed to a pat-down search and search of the iPad box as a precondition of his requested ride demonstrates that Gow understood the circumstances of the search and consented of his own volition.

¶25 Fourth, again on the facts as found by the trial court, Gow initiated the second encounter with the deputy by flagging him down and asking for a ride. Then, when the deputy told Gow that he would need to pat Gow down as a precondition of that ride, Gow readily agreed.

¶26 Finally, although the deputy did not expressly advise Gow of his right to refuse consent, this alone did not render his consent involuntary. As the trial court found, with record support, the interactions between Gow and the deputy were consensual and reflected "a cooperative process" with "a common goal essentially of getting Mr. Gow from one place to another safely." The record also shows that Gow fully understood the purpose for the limited searches, and he agreed with them as a condition of obtaining the courtesy ride that he had requested.

¶27 For these reasons, we conclude that under the totality of the circumstances, the deputy's actions in conducting the pat-down search and search of the iPad box did not violate Gow's federal or state constitutional rights.

III. Conclusion

¶28 Because the trial court's factual findings and credibility determinations are amply supported by the record and reveal that Gow voluntarily and expressly consented to the pat down and search of the iPad box as preconditions of accepting a courtesy ride in the deputy's car, we conclude that those searches did not violate Gow's constitutional rights.

¶29 Accordingly, we affirm the judgment of the division below, although our analysis rests on narrower grounds from those on which the division relied.

      We granted certiorari to review the following issue:
      Whether the court of appeals erred in creating, as a matter of first impression, a search incident to a courtesy ride exception to the Fourth Amendment.