Scheehle v. Justices of the Supreme Court

SUPREME COURT OF ARIZONA

MARK V. SCHEEHLE, Arizona Supreme Court
No. CV~O4-OlO3~CQ
Plaintiff,
United States District
Court

NO. ClV~98-1095-PHX-SMM

V.

JUSTICES OF THE SUPREME COURT
OF THE STATE OF ARIZONA:
STANLEY G. FELDMAN, CHARLES E.
JONES, FREDERICK J. MARTONE,
RUTH V. MCGREGOR, and THOMAS A.
ZLAKET; JUDGES OF THE SUPERlOR
COURT OF THE STATE OF ARIZONA,
IN AND FOR THE COUNTY OF
MARICOPA: MICHAEL R. MCVEY,
ROBERT D. MYERS, JONATHAN H.
SCHWARTZ and CHRISTOPHER M.
SKELLY,

0 P I N I 0 N

DefendantS.

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Certified QueStion from the
United StateS DiStrict Court for the DiStrict of Arizona
The Honorable Stephen M. McNamee, Chief Judge

QUESTION ANSWERED

MARK V. SCHEEHLE Fountain Hills
Plaintiff Pro Se

TERRY GODDARD, ARIZONA ATTORNEY GENERAL PhOeniX
By Paula S. Bickett, Chief Counsel, Civil AppealS
AttorneyS for DefendantS

S N 0 W, Judge
Il The United States District Court for the DiStrict of

Arizona has asked us whether this Court “can promulgate court rules

mandating experienced attorneys to serve as arbitrators in light of

the statutory’ language of Arizona. Revised Statutes (“A.R.S.”)
section 12-l33 (2000) authorizing only voluntary service?” We have
jurisdiction to decide the certified question pursuant to A.R.S.
§ l2~l86l (2OOl).1

I2 We hold that this Court has authority to promulgate a
court rule authorizing the superior courts in each county of this
state to require active members of the state bar to provide limited
service as arbitrators. We further hold that the exercise of that
authority is neither constricted by, nor inconsistent with, A.R.S.
§ l2~l33.

FACTS AND PROCEDURAL HISTORY

L3 In l97l, the legislature passed a statute permitting the
superior courts to implement by court rule non~binding mandatory
arbitration programs. The statute assigned to the courts the
responsibility for appointing arbitrators in such cases and further
specified that courts opting to create a nQndatory arbitration
program “shall maintain a list of qualified persons within its
jurisdiction who have agreed to serve as arbitrators, subject to

the right of each. person, to refuse to serve in. a particular

1 The district court also requested. that. we determine
whether the Maricopa County Superior Court had authority under
A.R.S. § l2-l33 to promulgate a pmogram H@ndating experienced
attorneys to serve as arbitrators. Because, as we explain in this
opinion, the Supreme Court Rule explicitly authorizes the superior
court to include active members of the Arizona bar on its list of
eligible arbitrators, this question is not presented by the facts
of this case. We thus decline to answer it.

2

assigned case.”2 1971 Ariz. Sess. Laws, ch. 142, § 1 (current
version codified at A.R.S. § 12~133(C) (2003)). The legislature
has amended the statute several times, to raise the mandatory
arbitration limits and to require, as opposed to merely permit,
superior courts to create mandatory arbitration programs, among
other reasons. See, e.gp, l978 Ariz. Sess. Laws, ch. 35, § l; 1984
Ariz. Sess. Laws, ch. 53, § l; 1986 Ariz. Sess. Laws, ch. 360, § l;
1991 Ariz. Sess. Laws, ch. 110, § 1; 1992 Ariz. Sess. Laws, ch. 9,
§ 1; 2000 Ariz. Sess. Laws, ch. 35, § l.

I4 In l974, this Court promulgated the Uniform Rules of
Procedure for Arbitration. Rule 1 indicated that the Uniform Rules
were for those superior courts that implemented. a mandatory
arbitration.prograH1under A.R.S. § 12~133, and further directed the
superior courts how to enact rules for such programs. Rule 2
specified how arbitrators would be appointed. That rule provided
that if the parties could not stipulate to an arbitrator, the court
would, through a random selection procedure, appoint an arbitrator
from a list. The list would be comprised of “members of the Bar of
the State of Arizona residing within the County in which the Court

is located.”3 Unif. R.P. Arb. 2(b) (1980). The rule allowed

2 The statute also provided that an arbitrator be paid
fifty dollars per day for conducting an arbitration hearing. The
statute has since been amended to raise the payment to seventy-five
dollars per day. A.R.S. § 12-l33(G).

1

“ This rule and its successor, Arizona Rule of Civil
Procedure 73, have been modified several times. Rule 73 currently

3

attorneys to remove their names from the list and also allowed them
to refuse to serve if appointed as an arbitrator.

L5 ln 1984, pursuant to the rule and the statute, Maricopa
County added a local rule implementing the mandatory arbitration
program.4

I6 In 1986, the legislature amended the statute to require,
as opposed to merely permit, superior courts to implement mandatory
arbitration programs by rule. In 1989 and l990, the State Bar of
Arizona, the Maricopa County Superior Court, and other attorneys,
judges, and court administrators, petitioned this Court to remove
the provisions froH1 Rule 2 allowing' attorneys to opt out of
arbitration service absent good cause. In response, we adopted
four changes to Rule 2. First, we omitted the provisions allowing
practicing attorneys to remove their names from the list of
potential arbitrators, Second, we specified the reasons that would
permit an arbitrator to be excused from service. Third, we added

a provision allowing an attorney who “has served as an Arbitrator

provides that “all residents of the county in which the court is
located, who, for at least four years, have been active members of
the State Bar of Arizona” may be placed on a county's list of
eligible arbitrators, Ariz. R. Civ. P. 73(b)(1). lt also permits
the superior court to place on this list other lawyers of any bar,
both active and inactive, who “have agreed to serve as arbitrators
in the county where the action is pending.” Ariz. R. Civ. P.
73(b)(2).

4 The Maricopa County Superior Court initially set the
mandatory arbitration threshold at $15,000. Ariz. Local R. Prac.
Super. Ct. (Maricopa) 3.10 {l984). In 1994 it adopted the $50,000
maximum threshold authorized by A.R.S. § l2~l33.

4

pursuant to these Rules for two or more days during the current
year to be excused.”5 Unif. R.P. Arb. 2(e)(3) (1992). Fourth, we
added a comment to the rule confirming that “{i]t is the obligation
of all qualified lawyers to serve as Arbitrators and only
exceptional circumstances should justify removal from the list.”
Unif. R.P. Arb. 2 cmt. (1992). ln 2000, the Uniform Rules for
Arbitration were incorporated into the Arizona Rules of Civil
Procedure as Rules 72~76. Rules 1 and 2 of the Uniform Rules are
now renumbered respectively as Arizona Rules of Civil Procedure 72
and 73.6

I7 In this case, attorney Mark V. Scheehle challenges the
provision of Rule 73 authorizing the Maricopa County Superior Court
to include him on its list of eligible arbitrators without his
consent. Scheehle's federal court complaint alleged that Rule 73
violated a number of his federal constitutional rights. Scheehle
also raised a pendent state law claim that Rule 73 was invalid
because it compelled him to serve as an arbitrator, whereas A.R.S.
§ 12-133 authorized the appointment only of arbitrators who had

agreed to serve.

5 In 2000, this provision was amended. to excuse an
appointed arbitrator who had “completed contested hearings and
ruled as an arbitrator . . . in two or more cases assigned during

the calendar year.” Ariz. R. Civ. P. 73(e)(3).

5 The balance of this opinion will refer to these rules as

they are currently codified in the Arizona Rules of Civil
Procedure.

I8 The district court granted summary' judgment against
Scheehle on his federal civil rights claims. lt then declined to
exercise supplemental jurisdiction over the state law claims after
resolution of all the federal questions and accordingly dismissed
the state law claims. The Ninth Circuit initially affirmed the
decision, Scheehle v. Justices of the Supreme Court, 257 F.3d 1082
(9th Cir. 200l), but then withdrew that opinion. Scheehle v.
Justices of the Supreme Court, 269 F.3d 1127 (9th Cir. 2001). lt
then certified a question to this Court asking whether A.R.S. § 12-
133 mandated compulsory participation of attorneys as arbitrators.
L9 This Court, addressing only that very limited question,
held that A.R.S. § 12~133 does not require that lawyers serve as
arbitrators. Scheehle v. Justices of the Supreme Court, 203 Ariz.
520, 522, I 6, 57 P.3d 379, 381 (2002). After our decision, the
Ninth Circuit remanded the case to the district court for further
consideration. Scheehle v. Justices of the Supreme Court, 315 F.3d
1191 (9th Cir. 2003).

I10 Upon remand, the district court again reaffirmed its
rejection of Scheehle's federal constitutional arguments and
dismissed them from this case.

I11 In the same order, the district court certified the
following question to this Court:

Whether the Arizona Supreme Court under its

exclusive constitutional authority to regulate
the practice of law can promulgate court rules

mandating experienced attorneys to serve as

arbitrators in light of the statutory language

of A.R.S. § 12-133 authorizing only voluntary

service?
The district court stayed all further consideration as to
Scheehle’s state law claim pending the answer to its certified
question.7

ANALYS IS

L12 ln his briefing on the certified question, Scheehle makes
three alternative arguments. First, Scheehle argues that Rule 73
violates the Takings Clause, U.S. Const. amend. V, and the Equal
Protection Clause, U.S. Const. amend. XlV. Second, he argues that
Rule 73 impermissibly conflicts with the legislation authorizing
the mandatory arbitration program. Third, he asserts that this
Court's power to regulate the practice of law does not extend to
compelling attorneys to serve as arbitrators. We analyze each

argument in turn.

A. The District Court Has Already Decided Scheeh1e's
Federa1 LaW C1aims.

Il3 Scheehle acknowledges that the district court has already
dismissed his federal constitutional claims. But he nonetheless

asserts that it would be improper for this Court “to answer the

7 Upon certification, Scheehle objected to the

participation of Justices McGregor, Berch, Ryan, and Hurwitz in
answering the certified questions because they are defendants in
the underlying federal court complaint. We considered and rejected
Scheehle’s objections in a previous order that is appended to this
decision and incorporated herein.

7

certified questions, when the district court seeks answers from
this Court devoid of any analysis of the impact of the Constitution
of the United States on such state law authority.” We disagree.
Ll4 lt is not the role of this Court in responding to a
certified question of state law to review the federal law rulings
of the certifying federal court. The authority pursuant to which
we respond to the district court's questions permits us to answer
only questions of state law. A.R.S. § 12-1861 (“The supreme court
may answer questions of law certified to it . . . if there are
involved in any proceedings before the certifying court questions
of the law of this state which. may' be determinative of the
cause.”). This opinion is thus limited to the question certified:
Does this Court have authority under state law to promulgate the
rules at issue and, if it does, is that authority limited by the
provisions of A.R.S. § l2~l33?
B. Ru1e 73 Does Not Conf1ict with A.R.S. § 12-133.

I15 Scheehle next contends that A.R.S. § l2~133(C), by
requiring each superior court to “maintain a list of qualified
persons within its jurisdiction. who have agreed to serve as
arbitrators,” limits the court to appointing arbitrators from that
list. A.R.S. § 12-133(C). we disagree.

L16 In interpreting a statute, we “try to determine and give
effect to the legislature's intent.” Hayes v; Cont’l Ins. Co., 178

Ariz. 264, 268, 872 P.2d 668, 672 (1994). If we cannot do so by

looking at the plain language of the statute, “we consider the
statute's context; its language, subject matter, and historical
background; its effects and consequences; and its spirit and
purpose.” Id. we also avoid interpretations that unnecessarily
implicate constitutional concerns. In re Shannon, 179 Ariz. 52,
78, 876 P.2d 548, 574 (1994) (opting for statutory interpretation
that does not limit this court in interpreting range of sanctions
it could impose on attorneys so as not to implicate constitutional
concerns); Hayes, 178 Ariz. at 273, 872 P.2d at 677.
L17 The language upon which Scheehle relies has been in
A.R.S. § l2~133 since its adoption in 1971. The full text of the
relevant provision states:

The court shall maintain a list of qualified

persons within its jurisdiction who have

agreed to serve as arbitrators, subject to

the right of each person to refuse to serve

ha a particular assigned case and subject

further to the right of any party to show

good cause why an appointed arbitrator should

not serve in a particular assigned case. The

court rules shall provide that the case

subject to arbitration shall be assigned for

hearing to a panel of three arbitrators, or

in the alternative, to a single arbitrator,

each of whom shall be selected by the court.
A.R.S. § 12~l33(C).
I18 Scheehle argues that under this statute the list of

voluntary arbitrators is the only source from which the superior
court may appoint arbitrators. Nowhere, however, does the statute

say so. Rather, the plain text of the statute vests in the

superior court the authority, without limit, to select each
arbitrator. “The court rules shall provide that the cases subject
to arbitration shall. be assigned . . . to [an. arbitrator or
arbitrators] . . . each of whom shall be selected by the court.”
A.R.S. § 12-133(C).
Ll9 While implying a limitation not explicitly stated in a
statute may be appropriate in some circumstances, it is not in this
case for several reasons. First, the legislature has been aware
since 1974 that this Court, by rule, authorized superior courts to
place active members of the bar on their lists of eligible
arbitrators. After' we promulgated. the rule, the legislature
repeatedly amended the statute, but never indicated that the court
could appoint only arbitrators who volunteered. We, therefore
presume that the legislature approved of the rule’s operation. As
we have said in the context of statutory interpretation:

lt is universa1ly' the rule that where a

statute which has been construed by a court

of last resort is reenacted in the same or

substantially the same terms, the legislature

is presumed to have placed its approval on

the judicial interpretation given and to have

adopted such construction and made it part of

the reenacted statute,
State v. Superior Court of Pima County, 104 Ariz. 440, 442, 454
P.2d 982, 984 (1969) (quoting Madrigal v. Indus. Comm’n, 69 Ariz.
138, l42, 210 P.2d 967, 971 (1949)).
L20 After this Court promulgated the rule authorizing

superior courts to appoint active members of the bar as

10

arbitrators, the legislature amended the statute both to increase
the jurisdictional limit on cases that must be referred to
mandatory arbitration and to require, as opposed to merely
authorize, each superior court to adopt a mandatory arbitration
program. In doing so 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.

L21 Second, nothing in the statute seeks to regulate
attorneys, To imply in the statute a limitation on the court's
power of appointment would limit not only a superior court's power
to appoint arbitrators but also the scope of this Court's power to
require bar members to assist in the administration of justice by
authorizing superior courts, on a limited basis, to appoint members
of the bar as arbitrators. We do not interpret a statute as
intending to limit the court's ability to otherwise act unless the
legislature explicitly indicates such an intent. Hayes, 178 Ariz.
at 273, 872 P.2d at 677. None is evident here.

L22 As Scheehle acknowledges, this Court has exclusive
authority over the regulation of attorneys, “[T]he practice of law
is a matter exclusively within the authority of the Judiciary. The
determination of who shall practice law in Arizona and under what

condition is a function placed by the state constitution in this

ll

court.” Hunt v. Maricopa County Employees Merit Sys. Comm’n, 127
Ariz. 259, 261~62, 619 P.2d 1036, 1038~39 (1980).3

I23 This Court fulfills the administrative responsibilities
assigned to it under the constitution by, among other methods,
promulgating rules. Those rules are distinct from those enacted by
state administrative agencies pursuant to legislation. When this
Court promulgates rules pertaining' to attorneys or to court
procedures, it does so pursuant to its own constitutional authority
over the bench, the bar, and the procedures pertaining to them.
Heat Pump Equip. Co. v. Glen Alden Corp., 93 Ariz. 361, 363, 380
P.2d 1016, 1017 (l963) (stating that courts have constitutional
power to promulgate rules on judicial matters); Burney v. Lee, 59
Ariz. 360, 363, 129 P.2d 308, 309 (l942) (courts have power to
promulgate rules to fulfill constitutional mandates).

I24 Such 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,
Although the legislature may, by statute, regulate the practice of
law, such regulation cannot be inconsistent with the mandates of

this Court. Creasy, 198 Ariz. at 544, § 18, 12 P.3d at 219

3 Since the early days of statehood, we have recognized
that our constitution gives authority to this Court to regulate the
practice of law. See, e.g., State Bar of.Ariz. v¢ Ariz. Land Title
& Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961); In re Miller, 29 Ariz.
582, 244 P. 376 (l926); In re Bailey, 30 Ariz. 407, 248 P. 29
{1926).

12

(stating that legislature cannot authorize by statute activity that
would result in the unauthorized practice of law because a court
rule governing the practice of law “trumps statutory law”); see
also Ariz. Land Title & Trust Co., 90 Ariz. at 95, 366 P.2d at 14
(“although the legislature may impose additional restrictions which
affect the licensing of attorneys, it cannot infringe on the
ultimate power of the courts to determine who may practice law”)
(citing In re Greer, 52 Ariz. 385, 389-90, 81 P.2d 96, 98 (l938));
Conway, 60 Ariz. at 8l, 131 P.2d at 988 (“When, however[,] it
appears that the legislative rule unduly hampers the court in the
duties imposed upon it by the Constitution, the rule adopted by the
court will prevail.”).

I25 We are reluctant to imply a statutory limitation that
would create ai conflict ;ni the constitutional prerogatives of
separate branches of Arizona government. Shannon, 179 Ariz. at 78,
876 P.2d, at 574; Hayes, 178 Ariz. at 273, 872 P,2d. at 677.
Scheehle's proposed interpretation would unnecessarily create such
a conflict.

I26 We therefore hold that A.R.S. § 12-133 does not limit the
court's right to appoint persons other than volunteers to serve as

arbitrators.

13

C. This Court's Responsibi1ity to Administer an
Integrated Judicia1 System Gives it Authority
to Promu1gate Ru1es Requiring Limited Service
by Attorneys to the Judiciary.

I27 Scheehle finally argues that the power to regulate the
practice of law does not permit this Court to oblige attorneys to
serve as court-appointed arbitrators because appointing such
arbitrators “is not a function of regulating the practice of law.”
This argument reflects a ndsunderstanding of the constitutional
basis from which this Court derives its power to regulate the
practice of law.9 This Court's power to regulate the practice of
law is a function of its responsibility to administer an integrated
judiciary. The power to administer the judicial branch allows this
Court to regulate the practice of law to further the administration
of justice.

I28 Article 6, section. 1 of our constitution, vests the
judicial power “in an integrated judicial department,” which
includes all of the courts of this state. Because “the practice of

law is so intimately connected and bound up with the exercise of

judicial power in the administration of justice . . . the right to

9 Wholly apart from the power to regulate the bar given by

our state constitution to the judiciary, extensive authority
supports the inherent authority of the courts to regulate the
practice of law. Shannon, 179 Ariz. at 75, 876 P.2d at 571 (“The
judiciary's authority to regulate and control the practice of law
is universally‘ accepted andy dates back to the year 1292.”);
Bridegroom v. State Bary 27 Ariz. App. 47, 49, 550 P.2d 1089, 1091

(1976) (“There is no question, but that the Supreme Court has
inherent power to integrate the bar of this state.”) (citations
omitted).

14

define and regulate its practice naturally and logically belongs to
the judicial department.” Shannon, 179 Ariz. at 76, 876 P.2d at
572 (quoting In re Integration of Neb. State Bar Ass'n, 275 N.W.
265, 268 (1937)).

L29 Consequently, the Arizona Constitution's creation of an
integrated judiciary gives to this Court the power not just to
regulate all courts but also to regulate the practice of law.
Shannon, 179 Ariz. at 76, 876 P.2d at 572; see also Creasy, 198
Ariz. at 541, I7, 12 P.3d at 216 (“The court's authority over the
practice of law is also based on the creation of an integrated
judicial department and the revisory jurisdiction of this court as
provided in article Vl sections 1 and 5(4) of the Arizona
Constitution.”); In re Smith, 189 Ariz. 144, l46, 939 P.2d 422, 424
(l997) (“The State Bar exists only by virtue of this court's rules,
adopted under authority of article 111 and article Vl, §§ 1 and 5
of the Arizona Constitution.”).

I3O The constitution’s mandate in article 6, section 3 that
this Court shall have “administrative supervision” over the courts

of this state enables this Court to supervise judicial officers,

including' attorneys. “Administrative supervision. contemplates
managing the conduct of court. personnel. . . . Attorneys are
universally recognized as ‘officers of the court,' . , . and as

officers of the court, attorneys are amenable to the court as their

superior ” Shannon, 179 Ariz. at 76-77, 876 P.2d at 573 (citations

15

omitted); Bailey, 30 Ariz. at 412, 248 P. at 30 (quoting In re
Splane, 16 A. 421 (Pa. 1889)) (“The attorney is an officer of the
court, and is brought into close and intimate relations with the
court.”).
L31 By virtue of our constitutional power over attorneys as
officers of the court, this Court created the State Bar of Arizona.
Ariz. R. Sup. Ct. 32(a)(l). We require those practicing law in
this state to be members of this bar. Ariz. R. Sup. Ct. 31. As
officers of the court, State Bar members are invested. with
significant rights and responsibilities. As the United States
Supreme Court has observed:

As an officer of the court, a member of the

bar enjoys singular powers that others do not

possess; by virtue of admission, members of

the bar share a kind of monopoly granted only

to lawyers. Admission creates a license not

only' to advise and counsel clients but to

appear in court and try cases; as an officer

of the court, a lawyer can cause persons to

drop their private affairs and be called as

witnesses in court, and for depositions and

other pretrial processes that, while subject

to the ultimate control of the court, may be

conducted outside courtrooms.
In re Snyder, 472 U.S. 634, 644 (1985). Attorneys are invested
with these powers because they have an individual and collective
role in achieving “[t]he primary duty of courts {which] is the
proper and efficient administration of justice ” Shannon, 179 Ariz.

at 76, 876 P.2d at 572 (quoting In re Integration of.Neb. State Bar

Ass’n, 275 N.W. at 268).

16

I32 Contrary to Scheehle’s argument, this Court's exclusive
authority to regulate the practice of law is therefore not
independent from its responsibility to supervise an integrated
judiciary. lt is derived from that very power. The power extended
to this Court by the constitution includes the authority' to
promulgate regulations assigning limited quasi-judicial functions
to lawyers as judicial officers.

L33 Scheehle cites Schware v. Board of Examiners of the State
of New Mexico, 353 U.S. 232, 239 (1957), and its progeny, for the
proposition that any qualification a state places on the entry to
the practice of law “must have a rational connection with the
applicant's fitness or capacity to practice law.” The obligation
to perform limited service as an arbitrator, however, is not a
restriction placed on the entry to the practice of law in this
state. Rather it is a uniform regulation requiring limited service
to the judiciary for those already admitted to practice relating to
their roles as officers of that judiciary.

I34 A state may engage in reasonable regulation of licensed
professionals. See, e.g¢, Lupert v. Cal. State Bary 761 F.2d 1325,
1328 (9th Cir. 1985) (citing Williamson v. Lee Optical, 348 U.S.
483, 487-89 (1955)); Watson v. Md., 218 U.S. 173, 177 (1910); see
also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460 (l978).
Our precedents involving attorney regulation underscore this point.

I35 For example, this Court has rejected a challenge to its

17

constitutional authority to require annual continuing legal
education (“CLE”) as a condition of continued.practice. Smith, 189
Ariz. at l46, 939 P.2d at 424; Ariz. R. Sup. Ct. 45. Compliance
with the mandatory CLE rule generally requires not only that an
attorney spend unreimbursed time attending the courses but also
that the lawyer pay for the course. Nevertheless, we rejected a
constitutional challenge to such a rule because, like the
requirement to provide limited arbitration services to benefit the
judiciary, “such requirements . . . are rationally related to the
court's obligation to serve the public interest.” Id.

L36 An attorney’s right “to pursue a profession is subject to
the paramount right of the state . . . to regulate
professions . . . to protect the public . . . welfare.” Cohen v.
State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (1978)(citing Ariz. State
Bd. of Dental Exam’rs v. Hyder, 114 Ariz. 544, 546, 562 P.2d 717,
719 (1977)). ln addition to exacting time and money to meet the
continuing standards necessary to retain a license, the state may
exact a reasonable consideration from those who are engaged in a
profession that it regulates. Duncan v. Truman, 74 Ariz. 328, 332,
248 P.2d 879, 883 (1952) (“[A] ‘license’ is a ‘permit, granted by
the sovereign, generally for a consideration . . . to a person,
firm, or corporation to pursue some occupation or to carry on some
business subject to regulation.’”) (quoting State Bd. of Barber

Exam’rs v. Walker, 67 Ariz. 156, l67, 192 P.2d 723, 730 (1948))

18

(emphasis added). That consideration. need. not. be exclusively
monetary, but can also be in the form of limited service to the
bench, bar, or community.

L37 Scheehle, citing Zarabia v. Bradshaw, 185 Ariz. 1, 912
P.2d 5 (1996), argues that whatever this Court's authority to
compel service from attorneys without adequate compensation in
individual cases, it has no authority to enact rules that
systematically deprive attorneys of their time, no matter how small
the deprivation. We do not so read Zarabia.

L38 In Zarabia, attorneys and. defendants challenged `Yuma
County's procedures for providing criminal representation to
indigent defendants. 185 Ariz. at 2, 912 P.2d at 6. At the time,
Yuma County had no public defender's office and provided
representation to indigent defendants in criminal cases through a
mix of contract attorneys and attorneys appointed from the private
bar. Id. The private practitioners were appointed on a rotational
basis and were obliged to provide the representation regardless of
experience or expertise. These lawyers were reimbursed “a total of
$375 for up to twenty hours’ work on a case ($l7.50 per hour), and
$50 an hour if more than twenty hours [were] required to complete
the representation.” Id. at 3, 912 P.2d at 7.

L39 ln. reviewing' that appointment. system, vmz decided no
constitutional questions. Rather we held that the system violated

both A.R.S. § 13-4013, which requires that an attorney receive

19

“reasonable” compensation when appointed to represent an indigent
criminal defendant, and Arizona Rule of Crimina1 Procedure 6.5(C),
which requires that in. appointing‘ an attorney' to represent a
defendant in a criminal matter the court take “into account the
skill likely’ to be required. in handling a particular case.”
Zarabia, 185 Ariz. at 3, 912 P.2d at 7.

I40 We expressly recognized in Zarabia, however, that the
court has authority to require a lawyer’s services, even on a pro
bono basis, to assist in the administration of justice. “[N]othing
we say here should be interpreted as limiting a judge's inherent
authority to achieve justice by appointing a particular lawyer to
represent a [party] in a particular case, even if the appointment
is pro bono or causes financial hardship to the appointed lawyer.”
Id. at 4, 912 P.2d at 8. We thus confirmed, as have other courts,

the ability of a court to require attorneys, by virtue of their

office, to provide pro bono publico service in certain
circumstances. See, e.g., United States v. 30.64 Acres of Land,
795 F.2d 796, 800 (9th Cir. 1986) (“Courts have long recognized

that attorneys, because of their profession, owe some duty to the
court and to the public to serve without compensation when called
on . . . . This duty' of public service is a condition. of
practicing law, and constitutes neither a taking under the fifth
amendment, nor involuntary servitude under the thirteenth

amendment.”) (citations omitted); see also United States v. Dillon,

20

346 F.2d 633 (9th Cir. 1965) (the state can condition a lawyer’s
ability to practice law upon the acceptance of certain
responsibilities in the furtherance of the administration of
justice).

I41 Stressing' that such power was limitedj however, we
remarked upon the difference between “requiring a lawyer to handle
one case or a few” and conscripting lawyers to handle “all cases
regardless of their ability or willingness to do so.” Zarabia, 185
Ariz. at 4, 912 P.2d at 8. We therefore noted that “[w]hatever
appointment process a court adopts should reflect the principle
that lawyers have the right to refuse to be drafted on a systematic
basis and put to work at any price to satisfy a county's obligation
to provide counsel to indigent defendants.” Id.

L42 Contrary to the appointment system in Zarabia, which was
neither quantitatively nor qualitatively limited, the system
authorized. by Rule 73 contains several inherent limitations.
First, Rule 73 does not, in and of itself, compel a lawyer to be an
arbitrator. lt merely authorizes superior courts to place
attorneys on a list of eligible arbitrators. Thus, presumably, if
sufficient volunteers exist in a particular county to meet that
county's need for arbitrators, that county's superior court need
not place eligible members of the state bar on the list of persons
eligible for appointment.

L43 Second, Ru1e 73 provides for randon1 appointment of

21

arbitrators from the list. Thus, placement on the list does not
necessarily result in service as an arbitrator in any given year.
L44 Third, when a lawyer is randomly selected to serve, Rule
73 explicitly limits the extent of that service. Under Rule 73, an
attorney cannot be compelled to accept arbitrations in any year in
which the attorney has already held hearings and ruled on two
matters. According to Scheehle's own affidavit, service as an
arbitrator typically requires only four to eight hours of his time
and imposes only minor out-of-pocket expenses. Because Scheehle
was asked to serve twice in 1997, he would have provided no more
than sixteen hours of arbitration service in that year. This
simply does not constitute the systematic deprivation condemned in
Zarabia.”

I45 Citing Hackin v. Lockwood, 361 F.2d 499, 503 (9th Cir.
1966), Scheehle also argues that this Court cannot condition his
practice of law on the deprivation of his constitutional rights.
The district court, however, has already determined that no such

rights were infringed upon here.

10 When the annual time an attorney might be required to
serve as an arbitrator is combined with the fifteen hours of
continuing legal education an attorney is obliged to obtain, it is
still well within the range of training hours required by state
administrative agencies froH1 other' professionals. See, e.g.,
A.A.C. R4-1-453(D) (requiring accountants to obtain between sixty
and eighty hours of continuing education every two years); A.A.C.
R4-26-207 (requiring psychologists to obtain sixty hours every two
years); A.A.C. R4-11-1203 (requiring dentists to obtain seventy-two
hours every three years); A.A.C. R4-16-101 (requiring physicians to
obtain forty hours every two years).

22

CONCLUSION
T46 We therefore answer the Certified Question as follows:
This Court has the constitutional authoriUv to require active
members of the state bar to serve as arbitrators pursuant to
Arizona Rules of Civil Procedure 73, Further, A.R.S. § 12-133 does

not restrict this Court's authority to promulgate that rule.

G. Murray Snow, Judge“

CONCURRlNG:

Ruth V. McGregor, Chief Justice

Rebecca White Berch, Vice Chief Justice

Michael D. Ryan, Justice

Andrew D. Hurwitz, Justice

3 The Honorab1e Charles E. Jones recused himself; pursuant
to Article 6, Section 3, of the Arizona Constitution, the Honorable
G. Murray Snow, Judge of the Court of Appeals, Division 0ne, was
designated to sit in his stead.

23

SUPREME COURT OF ARIZONA

MARK V. SCHEEHLE, Arizona Supreme Court
No. CV-04-0103-CQ
Plaintiff,
United States District
Court

NO. CV-98-1095-PHX-SMM

V.

JUSTlCES OF THE ARlZONA SUPREME
COURT OF THE STATE OF ARlZONA:
STANLEY G. FELDMAN, CHARLES E.
JONES, FREDERlCK J. MARTONE,
RUTH V. MCGREGOR, and THOMAS A.
ZLAKET; JUDGES OF THE SUPERIOR
COURT OF THE STATE OF ARlZONA,
lN AND FOR THE COUNTY OF
MARICOPA: MlCHAEL R. MCVEY,
ROBERT D. MYERS, JONATHAN H.
SCHWARTZ and CHRlSTOPHER M.
SKELLY,

0 R D E R

Defendants.

`/\/`_/`,/`/\/\,/`/`,,/`_/`/\/~._/`/»._/~`/»`/\/~_/`/`/

When this Court accepted questions certified to it by the
United States District Court for the District of Arizona, Chief
Justice Jones recused himself. Thereafter, the Plaintiff in the
underlying federal action, Mark V. Scheehle, filed with this Court
an “0bjection to Defendants in Plaintiff's Federal Action
Participating in the Adjudication of the Questions Certified to
this Court by the District Court.” ln it, Mr. Scheehle argues that
the remaining' four permanent members of this Court, Justices
McGregor, Berchq Ryan, and Hurwitz, are disqualified from answering

the certified questions. We here decide that objection.

FACTS AND PROCEDURAL HISTORY

The Maricopa County Superior Court assessed a $900 fine
against Mr. Scheehle for his refusal to accept assignment as an
arbitrator pursuant to court rules that require Arizona attorneys
with more than five years’ of experience to serve as arbitrators in
matters in which a limited damage amount is at issue. Mr. Scheehle
filed a special action in this Court challenging the fine and the
right of the superior court to require his service as an
arbitrator. This Court declined to exercise its special action
jurisdiction. Thereafter, instead of seeking appellate review of
the fine, Mr. Scheehle filed a civil rights complaint in federal
court pursuant to 42 U.S.C. § 1983 (2000).

ln his First Amended Complaint in the federal action, Mr.
Scheeh1e named a number of defendants. Among them he named the
superior court judge who had assessed the fine, several other
judges of the superior court who enforced the arbitration program,
the Maricopa County' Superior Court, and “the Justices of the
Arizona Supreme Court, Stanley' G. Feldman, Charles E. Jones,
Frederick J. Martone, Ruth V. McGregor, and Thomas A. Zlaket.”

Although. Mr. Scheehle sued. all of the judges
individually, he specified that the action was brought against them
in their official capacities. Thus, he alleged, they were not
immune from his federal civil rights action.

ln. the federal complaint, Mr. Scheehle attacked. the

arbitration program on both constitutional and state law grounds.
ina asked for" declaratory .re1ief estab1ishing' that tjmz Arizona
statute and court rule implementing the program are
unconstitutional. He also sought injunctive relief ordering the
Maricopa County Superior Court to remove his name from the list of
arbitrators and enjoining the court from enforcing the $900
sanction entered against him. He finally requested that he be
awarded costs and his co-counsel's reasonable attorney fees
pursuant to 42 U.S.C. § 1988(b) (2000).1

The district court entered. summary' judgment in the
defendants' favor' on all of Mr. Scheehle's § 1983 claims and
declined to exercise supplemental jurisdiction over the State law
claims. The Ninth.Circuit initially affirmed, Scheehle v. Justices
of the Supreme Court, 257 F.3d 1082 (9th Cir. 200l), but later
withdrew the opinion. Scheehle v. Justices of the Supreme Court,

269 F.3d 1127 (9th Cir. 200l), The Ninth Circuit then certified a

1 Of course “[s]uits brought against individual officers

for injunctive relief are for all practical purposes suits against
the State itself.” Hutto v. Finney; 437 U.S. 678, 700 (l978). The
public officials sued are not personally liable for any attorneys'
fees that might be awarded. Id.; see also Scott v. Flowers, 910
F.2d. 201, 213 (5th Cir. 1990) (“Any such [attorneys' fees] award,
however, must be paid by the state and cannot be assessed against
the defendants in their individual capacity, as the injunctive
relief sought and won by Scott can be obtained from the defendants
only in their official capacity as commissioners.”); Echols v.
Parker, 909 F.2d 795, 800 (5th Cir. 1990) (concluding State liable
for attorneys' fees and costs under 42 U.S.C. § 1988 when county
prosecutor, district attorneyg and justice court judge were sued in
official capacities as enforcing agents of an unconstitutional
statute).

question, to our` Court. asking‘ whether` Arizona, Revised. Statutes
(“A.R.S.”) section 12-133 (Supp. 2001) authorized a system of
compulsory participation of attorneys in the mandatory arbitration
system. Scheehle v. Justices of the Supreme Court, 203 Ariz. 520,
521, § 1, 57 P.3d 379, 380 (2002).

After accepting jurisdiction of the certified question,
all justices named in the complaint recused themselves. Their
positions on this Court were filled for purposes of responding to
the certified question by four judges from the Court of Appeals and
a judge from the Yuma County Superior Court.2 This Court then
responded that A.R.S. § 12-133 does not authorize the creation of
an arbitration system mandating lawyer participation. Id. at 522,
I 6, 57 P.3d at 381. The Ninth Circuit then remanded the case to
the district court for further consideration. in light of our
answer. Scheehle v. Justices of the Supreme Court, 315 F.3d 1191
(9th Cir. 2003).

After remand, pursuant to A.R.S. § 12-1861 (2003), the
district court certified the following state law question to this

Court:

3 These judges were the Honorable Edward C. Voss, Susan A.
Ehrlich, John C. Gemmill, and Jefferson L. Lankford, of the Arizona
Court of Appeals, Division One, and the Honorable Tom C. Cole,
Presiding Judge of the Yuma County Superior Court. Scheehle, 203
Ariz. at 523 n.2, 57 P.2d at 382.

4

Whether the Arizona Supreme Court under its

exclusive constitutional authority to regulate

the practice of law can promulgate court rules

mandating experienced attorneys to serve as

arbitrators in light of the statutory language

of A.R.S. § 12-133 authorizing only voluntary

service?

lf the answer to the above question is in the
affirmative, then the district court also requests that we answer
the following question:

Whether the Maricopa County Superior Court,

pursuant to AnR.S. § 12-l33, has authority

independent from the Arizona Supreme Court, to

promulgate a progran1 mandating experienced

attorneys to serve as arbitrators in light of

statutory language that the superior courts

"sha1l maintain a list of qualified persons

who have agreed to serve?”

The district court stayed all further consideration of
Mr. Scheehle's state law clain1 pending the answer to these
questions.

After the district court certified the questions to this
Court, and before filing his objection, Mr. Scheehle filed with the
district court a “Motion to ldentify for the Record and to Notify
the Arizona Supreme Court of Current Defendants and Counsel.” ln
that motion, Mr. Scheehle noted that the caption on the action
reflected the names of the individual defendants against whom he
had originally brought suit, but who had left office since that
time, He requested that the court update the caption and inform

the individual members of this Court that, pursuant to the

operation. of the Federal Rules of Civil Procedure, they' were

automatica1ly’ substituted as defendants in this action.
Mr. Scheehle noted that Federal Rule of Civil Procedure 25(d)
provides that a public official sued in an official capacity is
automatically replaced as a defendant in any' action, by his
successor in office.

ln denying Mr. Scheeh1e's motion to amend the caption,
the district court acknowledged that because Mr. Scheehle only
brought suit against the original defendants in their official
capacities, the federal rule automatically substituted their
successors as defendants in this case. Nevertheless it denied Mr.
Scheehle’s request to amend the caption because, given the length
of the case and the number of officials originally named, there
would be many such substitutions, and it is clear from the record
that all current defendants were aware of their status as
defendants in the action.3

Two weeks after this order was entered, Mr. Scheehle
filed his objection to the four justices answering the certified
question, We treat it as a motion to disqualify.

ANALYSIS
ln his objection, Mr. Scheeh1e asserts that the

participation of the permanent members of this Court in this case

5 Mr. Scheehle also filed documents in this Court in which
he apparently requested that this Court update the caption. The
questions certified to us are certified from the case in which they
arose. We have no authority to alter the district court's caption,

is prohibited by two of the rules set forth in Canon 3(E) of the
Arizona Code of Judicial Conduct. He alleges that the justices are
disqualified from hearing the case because they are parties to it
and are thus interested in it. Model Code of Jud. Conduct Canon
3(E)(1)(d)(i. He also alleges that they are biased and prejudiced
with respect to the case. Id. at 3(E)(l)(a). ln addition to these
reasons, Mr. Scheehle asserts several other reasons for
disqualification that are not related to the Code of Judicial
Conduct. We examine each in turn.
A. The Code of Judicia1 Conduct
1. Justices As Parties to the Proceeding

Canon 3(E)(l)(d)(i) requires a judge to “disqualify

himself or herself in a proceeding in which . . . (d) the judge

(i) is a party to the proceeding.” Mr. Scheehle argues that
this canon admits of no exceptions and that if a judge is named as
a defendant in an action, the judge is disqualified from hearing
it.

Although we have no doubt that the canon requires such a
result in the general run of cases, Mr. Scheehle is incorrect that
it admits of no exceptions. This Court, in a similar factual
context, has recognized at least one.

ln In re Ronwin, Edward.Ronwin, a repeatedly unsuccessful
applicant to the Arizona bar, filed a number of civil rights and

antitrust actions in federal court alleging' that a conspiracy

existed to keep him from being admitted to the practice of law in
this state. 139 Ariz. 576, 580-8l, 680 P.2d 107, 111-12 (1983).
Ronwin named the members of this Court as defendants in a number of
those actions. Id. After filing the claims, Ronwin filed yet
another application for admission to the Arizona bar. Id. Because
“[tlhe ultimate responsibility for admitting candidates for the
practice of law is vested in” the supreme court, id. at 578, 680
P.2d at 109, we ruled on the application directly. ln raising and
discussing the ethical issues created by each justice's status as
a defendant in the federal court actions, we noted:

lf we are to recuse ourselves simply because
we have been sued by the applicant, then who
is left to decide this case? As the Ninth
Circuit stated: “‘[A] judge is not
disqualified merely because a litigant sues or
threatens to sue him.’ Such an easy method
for obtaining disqualification should not be
encouraged or allowed.'” Ronwin v. State Bar
of Arizona, 686 F.2d at 70l, quoting United
States v. Grismore, 564 F.2d 929, 933 (10th
Cir. 1977); see also Smith v. Smith, 115 Ariz.
299, 303, 564 P.2d 1266, 1270 (App. 1977). We
agree; the mere fact that a judge has been
sued by reason of his rulings in a case does
not require recusal. Nor can the fact that
all judges in the court have been sued require
recusal. To honor such a technique would be
to put the weapon of disqualification in the
hands of the most unscrupulous.

Id. at 586, 680 P.2d at 1l7.
We thus decided that it was the obligation of the
individual justices comprising this Court to decide on Ronwin’s

application, despite any possible appearance of impropriety. Id.

We did so, ultimately denying that application. Id. at 587, 680
P.2d at l18.

Even though in Ronwin we did not specially identify a
doctrine that justified our decision to sit, such a doctrine, known
as the rule of necessityg is widely applied by other jurisdictions.
Although there are several formulations of the rule, a common one
is that the rule of necessity will prevail over disqualification
standards when it is not possible to convene a body of judges who
are not subject to the disqualification standards. United States
v. Will, 449 U.S. 200, 212 (1980); Dacey v. Conn. Bar Ass’n, 368
A.2d 125, 129 (Conn. l976); State v. Rome, 685 P.2d 290, 296 (Kan.
1984); Jeffrey' M. Shaman, et al., Judicial Conduct and .Ethics
§ 4.03, at 112 (3d ed. 2000) (“[D]isqualification must yield to
necessity if recusal would thwart the only tribunal where relief
[is] avai1able.”).

ln Ronwdn we concluded that because it was ultimately the
responsibility of the supreme court to determine who could be
admitted to the bar, the supreme court would have to answer the
question. 139 Ariz. at 578, 680 P.2d at 109. Thus, practically,
the permanent members of the Court could not recuse themselves.

Similarly in this case, Mr. Scheehle's suit requires a
definitive interpretation. of the scope of this Court's
administrative authority to regulate the practice of law in this

state. Such questions are inevitably questions of arizona law.

This Court is the court of last resort on the interpretation of
such questions. Ariz. Const. art. 3; Hedlund v. Superior Court,
171 Ariz. 566, 567, 832 P.2d 219, 220 (1992) (The supreme court has
the final say on the interpretation of rules.). lt is presumably
for this reason that the legislature authorized only this Court to
answer questions of state law certified by other jurisdictions.
A.R.S. § 12-1861 (“The Supreme Court may answer questions of law
certified to it by” federal and tribal courts involving dispositive
questions of state law.). Mr. Scheehle’s objection thus presents
the same question this Court asked in Ronwin. “lf we are to recuse
ourselves simply because we have been sued by the applicant, then
who is left to decide this case?” Ronwin, 139 Ariz. at 586, 680
P.2d at 1l7.

Although Mr. Scheehle does not raise the rule of
necessity in his objection, and hence offers no argument why it
should not apply, we have an independent ethical obligation to
ensure that this exception to the general rule of disqualification
does apply before sitting on this case. We note that there are
some distinctions between this matter and Ronwin. Though the Court
was called upon to exercise authority that ultimately rested with
it, as we are here, the matter at issue in Ronwin did not also
require the Court, as it does here, to determine the scope of its
own authorityz Moreover, the Ronwin Court did not consider whether

each justice should recuse as the justices did the last time a

10

question was certified to this Court in this matter, Given that
recusal is possible, it could be argued that it is not “necessary”
that any single justice sit on this case, because a replacement can
be appointed to sit in each justice's stead. Finally, in Ronwin,
unlike the present case, the justices themselves were not parties
to the matter they decided.

Courts in other jurisdictions have determined that when
a litigant names each member of a state’s highest court as a party
to litigation challenging the court's authority or actions, and
then moves to disqualify each member of the court from sitting on
the case, the rule of necessity obliges the individual members of
the court to sit, See New York State Ass’n of Criminal Def.
Counsel v; Kaye, 744 N.E.2d 123 (N.Y. 2000) (holding that the rule
of necessity required the individual judges of the New York Court
of Appeals to serve even though they were named defendants in
proceeding challenging capital fee structure promulgated by that
court); vermont Supreme Ct. Admin. Directive No. 17 V. vermont
Supreme Court, 576 A.2d 127, 132 (Vt. 1990) (determining that the
rule of necessity required individual justices to serve even though
they were named defendants in proceeding challenging administrative
order that they had entered); see also Office of State Ct. Adm'r v.
Background Info. Servs., 994 P.2d 420, 425-26 (Colo. 1999)
(upholding rule that required members of supreme court to sit in

determining whether its own order restricting access to court

ll

records was valid); Rome, 685 P.2d at 296 (determining that supreme
court must sit even though it is interpreting its own authority);
Ex parte Farley, 570 S.W.2d 617, 623 (Ky. 1978) (same); Board of
Overseers of the Bar v. Lee, 422 A.2d 998, 1002 (Me. 1980) appeal
dismissed by 450 U.S. 1036 (1981) (same); Berberian v. Kane, 425
A.2d 527, 527 (R.l. 1981) (same); Cameron v. Greenhill, 582 S.W.2d
775, 776 (Tex. 1979), cert. denied, 444 U.S. 868 (1979) (same);
State ex rel. Hash v. Mcgraw, 376 S.E.2d 634, 638 (W. Va. 1988)
(same). The rule of necessity applies even when there are
provisions for a member of the court to be temporarily replaced in
a matter. See Kaye, 744 N.E.2d at 128 (“The constitutional
provision for the designation of substitute Judges is not to be
used as a vehicle to force removal of the constitutionally
appointed members of this Court by naming them as parties when
challenging administrative actions of the Court.”).

For the following reasons, we agree that the rule of
necessity obliges us to sit in answering the questions certified in
this case even though we are nominal parties to the action.

As Mr. Scheeh1e’s complaint and subsequent motions
indicate, he has sued the permanent members of this Court in their
official capacities only. He does not argue that any of the four
justices he seeks to disqualify' has a personal stake in the
litigations When a justice has a personal conflict or is otherwise

unable to serve, there is a procedure for the substitution of that

12

individual justice. Substitution based on individual
considerations, however, is very different from an assertion that
every sitting justice is disqualified by virtue of his or her
position as a member of this Court.

lf a permanent member of this Court being sued in an
official capacity' steps aside so that another judge can be
appointed to sit, the person temporarily appointed then becomes a
temporary member of this Court. That person thus suffers from the
same infirmity, albeit. on. a temporary' basis, that caused. the
permanent nember's recusal. “[lf] . . . the court could be
regarded as an adversary of the petitioners, how would matters be
any different if its regular members saw fit to vacate the bench?
The special members appointed temporarily to replace them would
still constitute that same court and, perforce, they too would be
disqualified.” Farley, 570 S.W.2d at 623; see also Morgenthau v.
Cooke, 436 N.E.2d. 467, 469 n.3 (N.Y. 1982) (finding use of
substitutes for all members of the court would turn the substitutes
into the Court of Appeals); vermont Supreme Court, 576 A.2d at 132
(stating that “[s]ince the actions challenged in this proceeding
were taken in our official capacity as the vermont Supreme Court,
the asserted disqualification to act cannot be eliminated simply by
a temporary reconstitution of the Court”).

Mr. Scheehle bases his objection, in part, on the

operation of Federal Rule of Civil Procedure 25(d), which

13

automatically substitutes as defendants to a federal lawsuit
successors in office to those public officials who are sued in
their‘ public capacities. Because Mr. Scheehle has sued the
permanent members of this Court only in their official capacity, it
appears that, should. a member recuse or be disqualified, the
temporary replacement would be substituted in by operation of the
Rule. The replacement would thus also be subject to
disqualification under the Rule.

Even if temporary successors were not automatically
substituted in as parties, the reconstituted Court still could not
address Mr. Scheehle's objections as set forth in his First Amended
Complaint. That complaint alleges that “Arizona courts do not
provide an impartial forum for litigating this cause because if
Plaintiff is successful in his challenge of the System, Arizona
judges may face a substantial increase in workload.” Thus, even
assuming the merit of Mr. Scheehle’s objection, if any Arizona
court would. be incapable of answering' the certified. question
without bias, it would not be possible, by appointing temporary
replacements on this Court, to cure the basis of his objection,

Even assuming disqualification or recusal could cure the
problem, it would create additional problems of constitutional
dimension if the members of this Court recused for the reasons
suggested by Mr. Scheehle. The Arizona Constitution specifies the

qualifications for justices of this Court and the process by which

14

justices must be appointed and retained. Ariz. Const. art. 6,
§§ 6, 36-38. The constitution further specifies the unique duties
and prerogatives of this Court. These constitutional prerogatives
involve both administrative responsibilities, Ariz. Const. art. 6
§§ 1, 3 (placing judicial power in an integrated judicial
department and providing the supreme court with administrative
supervisory authority over all lower courts), and the authority to
interpret the law. Ariz. Const. art. 3 (creating a judicial
department separate from executive and legislative departments).
The constitution requires that those constitutional
responsibilities be exercised by the justices appointed to this
Court. A disqualification of all members of this Court based only
on an asserted conflict that arises from each justices's
performance of his or her constitutional function would be an
abdication of duty by those who are constitutionally designated to
perform such functions. Other courts have also recognized this
problem. See Kaye, 744 N.E.2d at 126 (“lf disqualification were
required whenever the Judges were sued as individuals upon a
challenge to an act of the Court, the result could be substitution
of the entire constitutionally appointed court, leaving ‘the most
fundamental questions about the Court. and its powers'” to be
decided. by‘ persons who were not appointed. to that purpose.);
Berberian, 425 A.2d at 528 (Disqualifying the justices of the

supreme court each time their administrative powers are challenged

15

would “render the rule-making process self-defeating and
nugatory.”); Vermont Supreme Court, 576 A.2d. at 226 (finding
substitution of all members of the court “leaves the most
fundamental questions about the Court and its powers to persons
whose selection and retention are not tested by constitutional
processes”).

Further, as we previously* recognized in Ronwdn, if
disqualification. were allowed in this case, it would. provide
litigants the ability to disqualify the membership of this entire
Court merely by naming each member as a party. 139 Ariz. at 586,
680 P.2d at 117. “Such an easy method for obtaining
disqualification should not be encouraged or allowed.” Id.

This Court is regularly‘ called. upon. to interpret or
decide the validity of its own rules. See, e.g., State ex rel.
Napolitano vz Brown, 194 Ariz. 340, 342, II 6-8, 982 P.2d 815, 817
(1999) (rule granting’ 120 days to file a petition. for post
conviction relief upheld); In re Smith, 189 Ariz. l44, l46, 939
P.2d 422, 424 (1997) (upholding rule imposing mandatory continuing
legal education); Stapleford v. Houghton, 185 Ariz. 560, 562, 917
P.2d. 703, 705 (1996) (finding‘ provision of Rules of Criminal
Procedure superseded by Victim's Bill of Rights); State v. Roscoe,
185 Ariz. 68, 912 P.2d 1297 (l996) (same).

0ur adoption. of a rule does not constitute a yprior

determination that the rule is valid and constitutional against any

16

challenge. “[C]ourt rules and comments thereto cannot be given
effect if they conflict with valid provisions of the constitution.”
Stapleford, 185 Ariz. at 562, 917 P.2d at 705. Such a
determination. awaits a judicial proceeding' in. which. opposing
interests are provided a full opportunity to be heard. See, e.g.,
Kaye, 744 N.E.2d at 127 (quoting Vermont Supreme Court, 576 A.2d at
30) (“[0]ur promulgation of the [rule] is not a prior determination
that it is valid and constitutional. That determination must await
the adjudication in this or a future case.”). Both this Court and
lower Arizona courts have upheld challenges to the validity of
rules promulgated by this Court in such settings. See, e.g.,
Stapleford, 185 Ariz. at 560, 917 P.2d at 703; Roscoe, 185 Ariz. at
68, 912 P.2d at 1297; State v; Uriarte, 194 Ariz. 275, 981 P.2d 575
(App. 1998) (holding court rules must give way to statutes
appropriately implementing constitutional provisions).

lt is unusual, however, for the individual justices of
this Court to be named as nominal defendants to a suit challenging
a court rule. Declaratory judgment actions brought in state court
challenging procedural or administrative rules of this Court do not
require that the individual justices be named to obtain relief.
Although Mr. Scheehle's § 1983 action brought in federal court
presumably does require that a public official be named,
Mr. Scheehle named a number of officials, including the superior

court judge who enforced the rule and imposed the sanction against

17

him. Presumably, therefore, he did not have to name each justice
of this Court as a defendant to obtain the relief identified in his
complaint.4 That he did so, however, does not, under these facts,
require our disqualification. The rule of necessity mandates our
individual participation in responding to the questions certified.
See Will, 449 U.S. at 214.
2. Bias and Prejudice

Mr. Scheehle alleges that each of the four permanent
justices should be disqualified because each is already committed
to a view on the certified questions. This partiality, according
to Mr. Scheehle, constitutes bias or prejudice sufficient to
disqualify the justices pursuant to Canon 3(E)(1)(a), which
specifies that “[a] judge shall disqualify himself or herself in a
proceeding . . . where . . . the judge has a personal bias or
prejudice concerning a party or a party’s lawyer.”

The objection asserts that the bias of the justices is

clear because of “the pleadings and papers filed over the past

4 0pinion. 96-14 of the .Arizona, Supreme Court Judicial
Ethics Advisory Committee, entitled “Limitations on
Disqua1ification Requirement,” November 21, 1996, posits that if a
disinterested but informed observer would conclude that suit was
brought against a judge solely' to disqualify the judge from
presiding over litigation, the judge is not disqualified, so long
as the judge feels that he or she can fairly preside over the case.
We need not decide whether a disinterested but informed observer
would make such a determination as to Mr. Scheehle’s suit against
the individual members of this Court because we conclude that the
rule of necessity requires the permanent members to sit in
answering the certified questions,

18

seven. years or so by the defendants in [this action1 (which
include, of course, the four justices in question).” Even assuming
that the pleadings filed by the Attorney General representing all
the defendants could be attributed for purposes of this motion to
represent the views of each of the permanent members of this Court,
three of the four justices (Berch, Ryan and Hurwitz) are relatively
recent appointees to the Court, and 1Wr. Scheehle suggests no
pleading filed during the time of their service on the Court that
would suggest that any of them has a preconceived view on the
issue.

The only specific pleading mentioned in the objection is
the brief filed by defendants with our reconstituted supreme court
when the Ninth Circuit first certified a question to us in this
same proceeding in 2002. According to Mr. Scheehle, in that
pleading the defendants took the position that the supreme court
“had the inherent power to require the attorneys it regulates to
serve as arbitrators.” Because Justice McGregor was a member of
the Court at that time, Mr. Scheehle asserts that the defendants'
position can be attributed to her for purposes of establishing her
personal bias, There are both legal and factual problems with this
argument.

As a matter of law, even if Mr. Scheehle could establish
that any of the justices has a view on the question at issue, such

an allegation does not constitute the kind of bias or prejudice

19

required for disqualification under the canon. Canon 3(E)(l)(a)
specifies that disqualification is appropriate when “the judge has
a personal bias cmr prejudice concerning aa party cut a party’s
lawyer.” “Bias and prejudice means a hostile feeling or spirit of
ill-will . . . towards one of the litigants. The fact that a judge
may have an opinion as to the merits of the cause or a strong
feeling about the type of litigation involved, does not make the
judge biased or prejudiced.” State v. Perkins, 141 Ariz. 278, 286,
686 P.2d 1248, 1256 (1984) (quoting State v. Myers, 117 Ariz. 79,
86, 570 P.2d 1252, 1259 (1977) (quoting In re Guardianship of
Styer, 24 Ariz. App. l48, 151, 536 P.2d 717, 720 (1975))); Shaman
et al., supra, § 4.04, at 113 (“However, neither bias nor prejudice
refer to the attitude that a judge may hold about the subject
matter of a lawsuit . . . . That a judge has a general opinion
about a legal . . . matter that relates to the case before him or
her does not disqualify a judge from presiding over the case.”)
(citations omitted); see also Leslie W. Abramson, Judicial
Disqualification Under Canon 3 of the Code of Judicial Conduct 24
(2d ed. 1992) (“0nly personal bias or prejudice constitutes a
disqualifying factor.”).

Thus, Mr. Scheehle's allegation that the four permanent
justices already have a view about the questions certified does not
constitute a basis for disqualification. even. if it could. be

established.

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And, even as a factual matter, Mr. Scheehle is unable to
establish such a pre-existing view. When the supreme court or
other departments of the State require representation, they obtain
that representation from the Attorney General’s office. For cases
involving the supreme court, the legal representation is
coordinated with the Chief Justice. Only he was aware of the
position taken by the defendants in this case. That is the basis
for his own recusal in this matter. As the New York Court of
Appeals noted in Kaye, “[i]t is not an uncommon practice for the
Chief {Justice] alone to be recused in similar appeals involving
judicial administration ” 744 N.E.2d at 125 n.1.

Neither Justice McGregor nor any of the other justices
who are challenged by Mr. Scheehle's motion took any role in the
defense, nor were they aware of the positions or theories advocated
by the State before the State's papers were filed. Mr. Scheehle
challenges the validity‘ of a court rule, names each of the
individual justices as nominal party defendants, and then asserts
that any answer or argument advanced by the State in favor of the
validity of the rule must be attributed to each of the justices for
the purpose of establishing his or her individual bias. ln cases
in which the rule of necessity requires the permanent members of
this Court to sit on a question, and the justices have taken no
role in the preparation of the defense, such an attribution cannot

be made. The` rule of necessity itself requires such an

21

accommodation. Cf. Disqualification Concerns When the Attorney
General's 0ffice Represents Judges, Op. 02-05 Ariz. Supreme Ct.
Jud. Ethics Advis. Comm. (Sept. 12, 2002) (While normally a judge
should recuse from hearing a case in which the Assistant Attorney
General representing him in other matters appears before him, “if
the lawyer currently represents all judicial officers in the county
or state (e.g., in a challenge to entire court's authority or an
attack on a judicial policy or rule), the ‘rule of necessity’ may
prevail, making disqualification impractical and unnecessary.”).
B. Other Arguments for Disqua1ification

ln addition to these arguments, Mr. Scheehle also briefly
argues that the individual justices should recuse because (1) he
has filed a complaint against the individual justices with the
Arizona Commission on Judicial Conduct resulting from their failure
to recuse themselves in this matter, and (2) the named defendant
justices previously recused themselves when a question was earlier
certified in this same matter.

1. Comp1aint to the Comission on Judicial Conduct

Mr. Scheehle asserts that the individual justices are
disqualified from deciding this matter because he has filed a
complaint against each of them with the Commission on Judicial
Conduct resulting from their failure to recuse.

As far as we can discern, every state that has considered

the question, including Arizona, has determined that a complaint to

22

the Commission on Judicial Conduct alone does not require recusal.
“The mere fact that a complaint has been made against a judge
alleging the judge is biased and cannot be impartial does not
require automatic disqualification or recusal by the judge. lf
this were so any party or attorney could easily disrupt court
proceedings at any time by filing a complaint against the judge.”
Disqualification Considerations when Complaints Are Filed Against
Judges, 0p. 98-2 Ariz. Supreme Ct. Jud. Ethics Advis. Comm. (Mar.
24, 1998) (quoting Shaman et al., Judicial Conduct and Ethics
§ 4.06 (2d ed. 1995)); see also Op. No. 98-04 Wash. Ethics Advis.
Comm. (Apr. 20, l998); Op. 45 Calif. (Jan. 23, l997).

Thus, Mr. Scheehle’s complaint against the justices with
the Commission on Judicial Conduct does not alone merit
disqualification.

2. The Justices Previous1y Recused in this Matter

Mr. Scheehle correctly' asserts that when the Ninth
Circuit previously certified a question to us in this matter, the
five permanent justices then on the Court all recused themselves.
The recusal did not come as a result of an objection brought by Mr.
Scheehle. Each justice recused on his or her own motion. We have
no record of their reasons for recusal. Even when the canons do
not require recusal, a judge may recuse from judicial duties.
Zuniga v. Superior Court, 77 Ariz. 222, 224, 269 P.2d 720, 721

(1954) (“A judge may on his own motion, if he acts timely, recuse

23

himself even though the reason given might not be sufficient to
form the basis of a legal disqualification.”).

We do not now question the decision of each of the
members of this Court at that time to recuse themselves. Nor are
we bound by that decision. lt is, however, our determination for
the reasons set forth above that Mr. Scheehle presents no legal or
factual argument requiring the disqualification of all four
permanent justices, merely because the last time a question was
certified in this matter each individual justice chose to recuse.

CONCLUSION

We recognize that each justice in this case has a
continuing' individual responsibility’ to exercise “considerable
introspection and intellectual honesty,” in determining whether he
or she may appropriately sit upon any matter that comes before the
Court. 0p. 98-2 Ariz. Supreme Ct. Jud. Ethics Advis. Comm. (Mar.
24, 1998). Such an evaluation depends on considerations that may
be unique to each justice and cannot be evaluated or discussed in
this collective opinion. Apart from such individual
considerations, however, we here determine that Mr. Scheehle has
set forth no arguments in his objection that would compel
disqualification of any of the four justices from sitting on the

certified questions. Therefore,

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IT IS ORDERED, denying Scheehle’s motion to disqualify.

G. Murray Snow, Judge5

CONCURRING :

Ruth V. McGregor, vice Chief Justice

Rebecca White Berch, Justice

Michael D. Ryan, Justice

Andrew D. Hurwitz, Justice

5 The Honorab1e Charles E. Jones recused himself, pursuant to
Article 6, Section 3 of the Arizona Constitution. The Honorable G.
Murray Snow, Judge of the Court of Appeals, Division 0ne, was
designated to sit in his stead.

25