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.

This one won’t be of much interest to most; a tip of the hat to the court, though, for a well-written opinion. It helps that the legal analysis consists of one sentence.

Winkleman is the State Land Commissioner, in charge of school trust lands. From 1909 to 1967, the state granted easements over trust land without compensation. In 1967 the United States Supreme Court held, in Lassen v. Arizona, 385 U.S. 458, that the state had to charge for such easements; since then it has. In this case a couple of school districts sued Winkleman as Land Commissioner, the State Land Department, the state, and pre-1967 easement holders for the money the state should have charged between 1909 and 1967.

The filed the case in 2004. The issue was, therefore, the statute of limitations.

The court recited the historical facts and pointed out that the cause of act could not have accrued until at least 1967, when Lassen made people aware that the state’s action was improper.  Plaintiffs argued that  not collecting past money was a “continuing violation” by the state, which would mean that their 2004 filing was still timely even though the applicable statute of limitations was one year.

The court analyzed the Plaintiffs’ argument by citing an Indian land case from the Court of Claims that disagreed with a similar argument and adding this:

We agree that the violation here also occurred once, when the  . . . easements were granted, even though the cause of action did not accrue until 1967.

The cause of action thus accrued in 1967; the plaintiffs Complaint was about 36 years late.

This sort of clear, if somewhat conclusory, approach is old-fashioned; it was common in Arizona Supreme Court cases sixty and more years ago. We hope its coming back into vogue — it is really not necessary to turn every opinion into a legal treatise or a demonstration of  how much the judge knows. But we’re not holding our breaths.

How many principles of appellate law can you violate in one case? As many as you please, if you’re the Supreme Court.

This case came before the court on petition for review of a special-action decision of the Court of Appeals. The lawsuit is a class action against the City of Phoenix. By statute, lawsuits against governments and government employees require that a notice of claim be presented first. The issue here was how the notice-of-claim requirement applies to class action. The statute requires that the notice include an amount for which the case can be settled; a claim can’t be settled for a class until the class has been certified, people have been allowed to opt out, etc.

The court came rather easily to the common-sense conclusion that the notice must contain a settlement amount for the claim of the individual claimant who proposes to sue on behalf of a class.

What caused the court trouble was to figure out how to rule for the claimant even though she didn’t do that.

Its solution was to decide that the City had waived the defense. The problem with that is that the trial court had already found that it hadn’t. That was a finding of fact. If you thought you knew appellate law, until now you believed that a trial court’s factual finding must be accepted unless no substantial evidence in the record supports it; that the finding will not be overturned unless it is clearly erroneous; that the reviewing court must examine evidence in the record on both sides of the question to determine this; and that the reviewing court should normally defer to the trial court even when it is in as good a position to judge the matter as the trial court (e.g., when the credibility of witnesses is not at issue). (If you don’t claim to know appellate law, trust us: a whole bunch of cases say this sort of thing.)

So how did the court handle this? It cited the evidence in favor of a waiver and then said

Typically, waiver is ‘a question of fact’. [citation omitted] But in this case, waiver by conduct is apparent from the extensive litigation record below.

That may be “apparent” from the facts the court chooses to mention. But if there weren’t any other facts, how did the trial judge decide otherwise? Was there no evidence to support him? The court does not say. Was there evidence that the court did not find “substantial? The court does not say. Was the finding clearly erroneous? The court does not say. And what of the deference due the trial judge? You guessed it.

The new doctrine of “apparent error” is not the only interesting novelty to this case. The waiver issue was not raised in the Court of Appeals. So how can the Supreme Court reach down to pull up an issue from the trial court? Because if it were to rule only on the issue before it, then, after remand, if the trial court were to enter judgment for the defendants, if the case were not settled, and if it were not otherwise resolved, then “an appeal would undoubtedly ensue” that would raise the waiver issue.

If you thought that special actions did not address issues that could be raised by appeal, as the cases say, and if you thought that appeal was not to be assumed, as the cases say, then you, too, are apparently in error.