SUPREME COURT OF ARIZONA
MARK V. SCHEEHLE, ) Arizona Supreme Court
) No. CV-02-0020-CQ
Plaintiff/Appellant, )
) United States Court of
v. ) Appeals, 9th Circuit
) No. 00-15457
JUSTICES OF THE SUPREME COURT OF )
THE STATE OF ARIZONA: STANLEY ) United States District
G. FELDMAN, CHARLES E. JONES, ) Court
FREDERICK J. MARTONE, RUTH V. ) No. CV-98-01095-SMM
McGREGOR, and THOMAS A. ZLAKET; )
JUDGES OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, IN AND FOR )
THE COUNTY OF MARICOPA: ) O P I N I O N
MICHAEL R. McVEY, ROBERT D. )
MYERS, JONATHAN H. SCHWARTZ and )
CHRISTOPHER M. SKELLY, )
)
Defendants/Appellees. )
_________________________________________)
Certified Question from
United States Court of Appeals
for the Ninth Circuit
QUESTION ANSWERED
Scheehle Law Firm, P.L.C. Fountain Hills
by Dorothy Scheehle
Attorney for Plaintiff-Appellant
Mark V. Scheehle Fountain Hills
In Propria Persona
Janet Napolitano, Arizona Attorney General Phoenix
by Patrick Irvine, Solicitor General
Attorneys for Defendants-Appellees
V O S S, Judge
¶1 The Ninth Circuit Court of Appeals certified the
following question to this court: “Does A.R.S. § 12-133 authorize
a system of compulsory participation of attorneys in the mandatory
arbitration system?”
¶2 To respond, we turn to the express language of Arizona
Revised Statutes (A.R.S.) § 12-133 (Supp. 2001). Subsection (A)
states:
The superior court, by rule of court, shall do both of
the following:
1. Establish jurisdictional limits of not to exceed fifty
thousand dollars for submission of disputes to
arbitration.
2. Require arbitration in all cases which are filed in
superior court in which the court finds or the parties
agree that the amount in controversy does not exceed the
jurisdictional limit.
Additionally, subsection (C) of § 12-133 provides:
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 in 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.
(Emphasis added.)1
1
To further implement the arbitration system, this Court
enacted Uniform Rules of Procedure for Arbitration, which are now
embodied in the Arizona Rules of Civil Procedure. Rule 73(b) of
the latter provides in part: “Except as the parties may stipulate
. . ., the arbitrator shall be appointed . . . from a list, as
provided by local rule, of persons which may include the following:
(1) all residents of the county . . . who, for at least four
years, have been active members of the State Bar of Arizona.”
2
¶3 To determine whether subsection (C) authorizes this Court
to require attorneys to act as arbitrators, “[i]n the absence of
ambiguous statutory language or manifest legislative intent to the
contrary, [we] should look to the plain meaning of the words as
enacted.” Ariz. Dep’t of Revenue v. Dougherty, 200 Ariz. 515, 518,
¶ 9, 29 P.3d 862, 865 (2001); see also State v. Thompson, 200 Ariz.
439, 440, ¶ 6, 27 P.3d 796, 797 (2001) (when statutory language is
clear, “it is determinative” of construction); Rineer v. Leonardo,
194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999) (best indication of
a statute’s meaning is its language); Kriz v. Buckeye Petroleum
Co., 145 Ariz. 374, 377, 701 P.2d 1182, 1185 (1985)(statute’s words
are foremost guide to interpretation).
¶4 Both sides of this controversy agree, as do we, that the
plain language of A.R.S. § 12-133(C) fails to confer authority to
demand that attorneys serve as arbitrators. The statute does
require the superior court to keep a list “of qualified persons
. . . who have agreed to serve as arbitrators.” Nothing in these
words suggests that all arbitrators must be attorneys; similarly,
nothing suggests that all licensed attorneys must serve as
arbitrators.
¶5 Defense counsel nevertheless urges us to find authority
for attorneys’ compulsory service as arbitrators in this Court’s
inherent power to regulate both the practice of law and the members
of the legal profession, comparing service as arbitrators to
3
various other forms of service demanded of attorneys. At oral
argument, the parties also addressed at our request the possible
impact of A.R.S. § 12-111 on the differences between A.R.S. § 12-
133(C) and Arizona Rule of Civil Procedure 73(b)(1).
¶6 However, the question posed to this Court is narrow and
specific. As this court has previously stated, “[w]e respond
solely to the narrow question[] certified to us.” Union
Transportes v. City of Nogales, 195 Ariz. 166, 172, ¶ 29, 985 P.2d
1025, 1031 (1999). Restraining ourselves from venturing an opinion
on whether or not other authority supports a rule imposing upon
active members of the Bar mandatory service as arbitrators, we
answer the question posed as follows: A.R.S. § 12-133 does not
authorize a system obliging attorneys who are active members of the
State Bar to serve as arbitrators.
¶7 One of our dissenting colleagues contends that we should
vacate the order accepting the certified question because the
question cannot resolve all state law issues, such as whether other
possible sources of authority for mandatory attorney service exist.
We do not refuse to answer a certified question simply because we
can conceive a broader question that the Court of Appeals could
have posed but did not. For this Court to answer a certified
question, A.R.S. § 12-1861 (1994) requires only that the certified
question “may” be determinative of the cause. Given both this
statutory language and its purpose, we construe “may” in its usual
4
sense as a permissive term, see Crum v. Maricopa County, 190 Ariz.
512, 514-15, 950 P.2d 171, 173-74 (App. 1997), and decline to
second-guess the Court of Appeals on whether the question certified
will be case-determinative. Our interpretation of the
certification statute, which is derived from the Uniform
Certification of Questions of Law Act (1967), is consistent with
that of most other state supreme courts. The Oregon Supreme Court,
for example, has held that an answering court’s decision should “in
one or more of the forms it could take, have the potential to
determine at least one claim in the case.” W. Helicopter Servs.,
Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 630 (Or.
1991)(emphasis added). That court expressly rejected the Wyoming
court’s “extraordinary interpretation” that unless the state law
question was totally determinative of the outcome of the case, the
state court would decline to answer a certified question. Id. n.4.
¶8 Further, although we find the statutory meaning plain,
that alone is not sufficient reason to refuse to answer a question
posed by a federal court if that court finds the issue unclear.
See Torres v. Goodyear Tire & Rubber Co., 163 Ariz. 88, 90, 786
P.2d 939, 941 (1990) (state court will strive to respond
affirmatively to certification request when the federal court may
otherwise be left to speculate on the answer); see also Arizonans
for Official English, 520 U.S. 43, 76 (1997)(lower federal courts
5
erred in failing to certify state law question because they found
the language “plain”).
¶9 Also in dissent, another colleague argues that the state
law claims were dismissed and because Scheehle did not raise them
in his federal appellate briefs, no state law claims remain viable.
The Court of Appeals, of course, may exercise its discretion to
address an issue not raised in an opening brief, see, e.g., Avila
v. I.N.S., 731 F.2d 616, 620 (9th Cir. 1984), particularly if the
issue obviates a federal constitutional question.
¶10 Moreover, we are well aware of the federal courts’ long-
standing policy of avoiding resolution of constitutional issues and
of utilizing the certified question procedure to seek clarification
of a possibly dispositive state law issue. See, e.g., Arizonans
for Official English, 520 U.S. at 76-77 (certification of novel,
unsettled state law question should be used to avert possible
constitutional issue); Elkins v. Moreno, 435 U.S. 647, 661, 662
(1978) (declining to decide unnecessary federal constitutional
question and sua sponte certifying potentially dispositive state
law issue not raised below); Belotti v. Baird, 428 U.S. 132, 147-48
(1976) (federal court should abstain if an unconstrued state
statute could reasonably be interpreted by that state’s courts to
avoid or modify federal constitutional adjudication).
¶11 The very fact that the Court of Appeals certified this
question, over the parties’ objections, after withdrawing its
6
published opinion in this case, and in lieu of abstaining
altogether, certainly implies that it is interested in addressing
the state law question. Accordingly, we leave the next step in
this process in the able hands of the Ninth Circuit judges.
¶12 For all of the above reasons, we choose to answer the
narrow and specific question asked.
EDWARD C. VOSS, Judge2
CONCURRING:
JOHN C. GEMMILL, Judge
TOM C. COLE, Judge
L A N K F O R D, Judge, Dissenting
¶13 I respectfully dissent. We should vacate the order
accepting the certified question3 and decline to answer it.
2
Pursuant to Article 6, Section 3, of the Arizona
Constitution, and the Arizona Supreme Court Order filed on March
20, 2002, the Honorable Edward C. Voss, Susan A. Ehrlich, John C.
Gemmill, and Jefferson L. Lankford, Judges of the Arizona Court of
Appeals, Division One, Phoenix; and the Honorable Tom C. Cole,
Presiding Judge, Yuma County Superior Court, were designated to sit
on this case until its final determination.
3
State courts may vacate orders accepting certified questions
from federal courts. See, e.g., Retail Software Servs., Inc. v.
7
Additional review following acceptance of the certified question
made it clear that our response to that question is unnecessary.
¶14 The question presented is not one that requires our
assistance in answering it. Although no published Arizona cases
interpret it, A.R.S. § 12-133 is plain on its face. The majority
interprets it by looking to the “plain meaning” of “clear”
language, a simple task that can be performed just as well by a
federal court. An issue involving an unambiguous state statute
should not be certified. Bi-Rite Enters., Inc. v. Bruce Miner Co.,
757 F.2d 440, 443 n.3 (1st Cir. 1985).4 See also Hawaii Hous.
Auth. v. Midkiff, 467 U.S. 229, 236-37 (1984) (unambiguous state
statute does not support federal abstention); Wisconsin v.
Constantineau, 400 U.S. 433, 439 (1971) (“Where there is no
ambiguity in the state statute, the federal court should not
Lashlee, 525 N.E.2d 737 (N.Y. 1988) (vacating acceptance order when
“answer would not be meaningful, let alone dispositive of the
cause”). See generally 5 Am. Jur. 2d Appellate Review § 979 (1995)
(citing examples of improvidently granted certification).
4
Of course, if the question should not have been certified by
the federal court in the first instance, the state court is under
no obligation to answer it. See White v. Edgar, 320 A.2d 668, 674
and n.10 (Me. 1974). Acceptance of certified questions is
discretionary with the state court. See A.R.S. § 12-1861 (Arizona
Supreme Court “may” answer certified questions); Joseph v. Pima
County, 158 Ariz. 250, 251, 762 P.2d 537, 538 (1988) (declining to
answer and stating: “Both Rule 27 [Rules of the Arizona Supreme
Court] and A.R.S. § 12-1861 give this court discretion to accept or
decline questions certified . . . .”); Ariz. R. Sup. Ct. 27 cmt.
(“[T]he decision whether or not to answer the questions certified
is discretionary.”).
8
abstain but should proceed to decide the federal constitutional
claim.”).
¶15 Moreover, our answer cannot resolve either the state or
federal claims because it does not include all state law issues in
the case. As the majority notes, the question presented to us is
“narrow and specific” and does not include whether the Arizona
arbitration system is authorized by sources of law other than
A.R.S. § 12-133. Thus, no possibility exists that either the
state-law claim -- that the arbitration system is not authorized by
state law -- or the federal constitutional claims could be resolved
by an opinion on a single aspect of the state claims.
Consequently, the question presented does not appear to meet the
requirement of A.R.S. § 12-1861 that it “may be determinative of
the cause” in federal court. See W. Helicopter Servs., Inc. v.
Rogerson Aircraft Corp. 811 P.2d 627, 630 (Or. 1991) (state court’s
“decision must, in one or more of the forms it could take, have the
potential to determine at least one claim in the case.”).5
¶16 Nor are any state-law claims presently part of this case.
Those claims were dismissed by the United States District Court and
Scheehle expressly acknowledged on appeal that the dismissal order
5
Some courts view the “cause” as constituting at least one
claim. E.g., W. Helicopter Servs., 811 P.2d at 630. Others
interpret the term as requiring that the certified question have
the potential of disposing of the entire case. E.g., Patel v.
United Fire & Cas. Co., 80 F. Supp. 2d 948, 954-55 (N.D. Ind. 2000)
(citing cases). In either case, an opinion which cannot resolve
any claim fails to meet this requirement.
9
was correct and expressly abandoned his state-law claims. See 28
U.S.C. § 1367(c) (state-law claims under supplemental jurisdiction
may be dismissed by district court); see also Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 (1988); United Mine Workers v. Gibbs,
383 U.S. 715, 726 (1966) (state claims should be dismissed when, as
here, federal claims are dismissed prior to trial); O’Connor v.
Nevada, 27 F.3d 357, 362 (9th Cir. 1994) (fact that federal claims
are dismissed prior to trial justifies dismissal of state claims);
Parker & Parsley Petroleum v. Dresser Indus., 972 F.2d 580, 589
(5th Cir. 1992) (district court abuses its discretion if it fails
to dismiss state claims following pretrial dismissal of federal
claims). While federal courts are undoubtedly desirous of averting
federal constitutional questions by relying on state law grounds,
the elimination of the state claim diminishes the need for the
state court to speak on the matter.6
6
To make a rather long story short, the core purpose of the
certification procedure is to avoid the difficulties presented by
Pullman abstention. See Prefatory Note, Uniform Certification of
Questions of Law Act; John B. Corr & Ira P. Robbins,
Interjurisdictional Certification and Choice of Law, 41 Vand. L.
Rev. 411, 415-16 (1988); Jessica Smith, Avoiding Prognostication
and Promoting Federalism: The Need for an Inter-Jurisdictional
Certification Procedure in North Carolina, 77 N.C. L. Rev. 2123,
2136-37 (1999); see also Arizonans for Official English v. Ariz.,
520 U.S. 43, 75-76 (1997)(“Certification today covers territory
once dominated by a deferral device called ‘Pullman
abstention’. . . . [T]he Pullman mechanism remitted parties to the
state courts for adjudication of the unsettled state-law
issues. . . .”). See generally R.R. Comm’n v. Pullman Co., 312
U.S. 496 (1941). However, this case is not subject to abstention
because the state-law claims were dismissed.
10
¶17 For these reasons, I believe that we should vacate the
order accepting the certified question.
_____________________________
JEFFERSON L. LANKFORD, Judge
E H R L I C H, Judge, Dissenting
¶18 I am of the opinion that the court should exercise its
discretion and not answer the certified question. See ARIZ. REV.
STAT. (“A.R.S.”) § 12-1861 (1994)(Arizona Supreme Court “may” answer
certified question); Joseph v. Pima County, 158 Ariz. 250, 251, 762
P.2d 537, 538 (1988)(“Both [Rule of the Arizona Supreme Court] 27
and A.R.S. § 12-1861 give this court discretion to accept or
decline questions certified ... .”). Not only do I agree with the
reasons expressed by Judge Lankford, which I will not reiterate,
but I hold this belief as a matter of federal-state comity because
the state-law claims were dismissed by the United States District
Court and abandoned on appeal by Scheehle. Therefore, I
respectfully dissent.
¶19 The state-law claims had been included in Scheehle’s
federal complaint as permitted by the United States District
Court’s “supplemental” or “pendent” jurisdiction. Pursuant to this
doctrine, “a plaintiff bringing a claim based on federal law could
join additional state-law claims against the same defendant, if the
additional claims arose from a common nucleus of facts.” 17A JAMES
11
WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 120.11[2][c][iii][D] (3d ed.
1997); see 28 U.S.C. § 1367(a)(2000) (recognizing “supplemental
jurisdiction” over state claims that “form part of the same case or
controversy” as the federal claims). However, pendent state-law
claims may be dismissed by the district court in certain
circumstances, 28 U.S.C. § 1367(c), and, after the district court
resolved the federal claims in this case, it did dismiss the state-
law claims.
¶20 Scheehle did not challenge on appeal the dismissal of his
state-law claims. Rather, he accepted that such dismissal was
within the discretion of the district court, and he explicitly
chose not to pursue those claims with the United States Court of
Appeals.
¶21 There exists, then, only the most theoretical possibility
that the court of appeals would exercise its jurisdiction7 and then
reverse the discretionary decision of the district court to dismiss
the state-law claims for the appellate purpose of deciding aban-
doned state-law issues. Indeed, at least one federal circuit court
of appeals considers itself lacking jurisdiction over a pendent
state-law claim when it affirms the dismissal of a federal claim.
See Castellano v. Bd. Of Trustees, 937 F.2d 752, 758 (2d Cir.
1991).
7
Jurisdiction rests on the notice of appeal, which merely
identified the district court’s order, although that order included
the dismissal of the state-law claims.
12
¶22 This theoretical possibility becomes all the more remote
when the extensive quality of the district court order is
considered. The statute authorizing pendent jurisdiction, 28
U.S.C. § 1367(c), gives the district court the discretion to
dismiss a state-law claim when that “claim raises a novel or
complex issue of state law ... or ... the district court has
dismissed all claims over which it has original jurisdiction.”
Either factor may justify dismissal, but the district court found
in this case that both were present. The United States Supreme
Court has stated in similar circumstances that the fact that the
federal claims were dismissed before trial dictates that the state-
law claims should be dismissed also. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988); United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966). See Parker & Parsley Petroleum v. Dresser
Indus., 972 F.2d 580, 588-89 (5th Cir. 1992).
¶23 Given the procedural and practical posture of this case,
it is neither likely nor appropriate that the United States Court
of Appeals resolve issues of state law so complex that the question
was certified to the Arizona Supreme Court. Accordingly, if there
are in fact no state-law claims that need be decided by the court
of appeals, we similarly need not and should not answer the certi-
fied question.
_____________________________
SUSAN A. EHRLICH, Judge
13