Scheehle v. Justices of the Supreme Court

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.”

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¶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

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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.

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¶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

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