On the heels of Phoenix v. Johnson, a simple analysis of a rule-statute conflict, here is a definitive and complete one. This is a must-read.
Seisinger sued an anesthesiologist for malpractice. A statute — 12-604(A) — requires that a med-mal expert have certain qualifications; hers didn’t meet them. She argued that he qualified as an expert under Rule 702 and that the statute, because it has the effect of narrowing the Rule, is unconstitutional. The trial court disagreed and dismissed her case; the Court of Appeals reversed.
The Supreme Court started by saying that the power to make procedural rules is not — despite what some of the Court’s earlier opinions had said — exclusive to the Court. “Rather, it is more accurate to say that the legislature and this Court both have rulemaking power, but that in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Such conflicts are to be avoided by construing the statute so as to be consistent with the rule, if possible.
The Supreme Court agreed with the Court of Appeals, though, that the rule and the statute conflict. The statute expressly adds to the qualifications required by Rule 702.
If there is a conflict, the next step is to determine whether the statute is substantive or procedural. With substantive matters, the roles are reversed: although both the court and the legislature can make substantive law (the court’s is called “common law”) in case of conflict the legislature prevails. Here, again, the duty of the courts is to try to uphold the constitutionality of the statute.
The Court of Appeals had decided that the statute was not substantive, based on its legislative history. But the Supreme Court indicated that this is a question of law, not of fact, and therefore does not rely on the legislative record. The legal issue is whether the statute is one that “creates, defines, and regulates rights.” That the statute affects evidence does not necessarily mean that it is procedural.
The requirement of expert medical testimony in a malpractice case, said the Court, is a substantive component of the common law governing the tort. The requirement had been developed long before Rule 702. 12-604 (A) modfies this substantive rule by adding to a plaintiff’s “burden of production” (whatever that is). It “regulates rights” and is therefore substantive.
This was too much for Judge Eckerstrom (called up from the Second Division because the Chief Justice had recused herself). His concurring opinion insists that the leglisature has no power to interfere with anything the courts have the constitutional power to do. For him, it is enough the the statute and the rule conflict; that makes the statute unconstitutional. Deciding between “substantive” and “procedural” is in his view an unnecessary “secondary analysis.”
Justice Hurwitz’ comments on Eckerstrom’s opinion were tactful and restrained.
In the end, though, the defendant lost. The substance that he argued for was his undoing. The statute was enacted in 2005; the case was filed in 2004 and arose out of events in 2002. It is black-letter law in Arizona that only procedural statues have retroactive effect. Having held that the statute was substantive, the majority ruled that it did not apply to Seisinger’s claim. (Eckerstrom’s opinion therefore concurs in the result.)
This is a very important opinion. Regardless of what you may think about Judge Eckerstrom’s grasp of civil or constitutional law, his approach is probably closer to what we would have seen from a majority of the Court a couple of Chief Justices ago. For the last twenty-five years or so, our Supreme Court has threatened to go the absolutist route favored by Judge Eckerstrom. Seisinger is closer to what we thought was the law before then.