As the attorney who challenged the legality of the current FASTAR pilot program in Duff v. Lee, 246 Ariz. 418 (App. 2019), review granted, No. CV-19-0128-PR (Ariz. Nov. 19, 2019), the proposed permanent rule changes are premature, at minimum, because a judicial decision on FASTAR is currently pending in the Arizona Supreme Court.
On the merits, however, I agree with the comments already posted by the other attorneys that oppose this program. Mr. Fleishman, in particular, is correct that the data generated by the FASTAR pilot program supports ending this experiment, not expanding it. The statistics broadly support arbitration under A.R.S. § 12-133. In my view, FASTAR should not be adopted on a permanent basis due to the following additional considerations.
For over 50 years, the public policy of our state has favored arbitration. See Pima County v. Maya Constr. Co., 158 Ariz. 151, 154 (1988). This policy is manifested and advanced by the compulsory arbitration statute, § 12-133. By “limit[ing] judicial intervention or participation” in cases and by reducing “the primary expense of litigation-attorneys’ fees,” Romer-Pollis v. Ada, 223 Ariz. 300, ¶ 17 (App. 2009) (quoting Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 180 Ariz. 148, 152 (1994)), the legislature has created an arbitration system that offers a reasonable, cost-effective alternative to trial, see Lane v. City of Tempe, 202 Ariz. 306, ¶ 6 (2002).
The FASTAR program pursues a contrary public policy. The Committee on Civil Justice Reform (CCJR), which proposed the draft version of FASTAR, explicitly designed the program to combat the phenomenon of the “vanishing [civil] trial” and to “promote more jury trials in our communities.” Ariz. Sup. Ct., CCJR, A Call to Reform 18-19 (Oct. 2016). The FASTAR architects advocated for this reform, in part, because it would avoid the perceived “downsides of compulsory arbitration”—namely, “divert[ing] cases away from juries,” “divert[ing] cases away from judges,” and “diverting lawyers away from trials,” which deprives attorneys of valuable “experience in the art of trying civil cases.” Id. To achieve these ends, the FASTAR program essentially eliminates compulsory arbitration under § 12-133. See FASTAR 101(b)(2); Ariz. Local R. Prac. Super. Ct. (Pima) 2.9(A). The program further discourages the choice of “Alternative Resolution” arbitration by rules generally requiring a waiver of the right to appeal from arbitration, see FASTAR 103(b)(2), 126(a)(1), thereby creating an incentive for more trials.
Looking at the bigger picture here, the legislature—which is the representative branch of our government that is directly elected by and accountable to the people of Arizona——has enacted a successful public policy favoring arbitration and discouraging litigation. Regardless of the merits or aims of the FASTAR program, it is simply not the role of the judiciary—which is designed to be the most politically insulated branch of our government—to reverse the success of compulsory arbitration and pursue a contrary public policy in favor of more trials. Throughout our state’s history, when arbitration has not been provided by a contract, the expansion of arbitration has been “practically universally done by statute.” Gates v. Ariz. Brewing Co., 54 Ariz. 266, 270, (1939). Given the success of the compulsory arbitration statute, our supreme court and superior courts should simply leave that system in place, without attempting to undermine or counteract it.
In the collective experience of my law firm, which has firsthand experience with the FASTAR jury trial, the resolution of lower-value cases by arbitration remains the preferred means of efficiently resolving these actions, even with the waiver rules discussed in detail below. Actual parties subject to those rules uniformly dislike the FASTAR program. Most lawyers do too. They are understandably reluctant, however, to criticize this program, which has been both created and actively promoted by the judges before whom the attorneys regularly appear. With all due respect to the courts and their efforts at reform, it is telling that the only comments in support of FASTAR come from judges and judicial committees.
FASTAR is also legally problematic, owing to its differing treatment of both plaintiffs and defendants. For plaintiffs, the system denies the substantive right of appeal granted by A.R.S. § 12-2101(A)(1), without any clear reason for doing so. Plaintiffs and defendants, after all, are equally subject to prejudicial errors in a FASTAR “Alternative Resolution” arbitration proceeding, regardless of who selected that proceeding. The question therefore remains unanswered: what value-neutral, non-policy-based reason is there for denying the right of appeal to plaintiffs under FASTAR 103(b) when a case is decided by an arbitrator? Why should no recourse exist when an error affects one party’s substantial rights? Appeals are neither a nuisance nor an impediment to efficiency, as FASTAR presupposes. Appeals are, instead, an essential substantive right conferred by the elected branch of government to ensure the just resolution of controversies.
When the legislature has wanted parties to lose or waive the right of appeal, the legislature has unequivocally said so—most notably for cases prosecuted in the small-claims division of the justice court. See A.R.S. §§ 22-503, 22-504, 22-519; see also A.R.S. § 22-261(A). By contrast, the legislature has, without exception, preserved the right of appeal for arbitration cases. Lawmakers have granted distinct appeal rights in arbitration cases through A.R.S. § 12-133(H) (the compulsory arbitration statute), A.R.S. § 12-2101(A)(1) (the general appeal statute), and A.R.S. § 12-2101.01 (the appeal statute for the Uniform Arbitration Act and the Revised Uniform Arbitration Act). The FASTAR program is therefore contrary to the legislative will and the substantive law insofar as its waiver rules “diminish or alter” the substantive right to appeal. In re Pima Cty. Juv. Action No. S-933, 135 Ariz. 278, 280 (1982). “The right to appeal ‘can only be given or denied by [the] constitution or the legislature of the state.’” Haywood Secs., Inc. v. Ehrlich, 214 Ariz. 114, ¶ 9 (2007) (quoting State v. Birmingham, 96 Ariz. 109, 111 (1964)).
Waiver provisions such as those in FASTAR 103(b) are substantive, not procedural, because they do not prescribe the "manner" in which appeals must be taken from arbitration cases—the "how" of how to process appeals from arbitration. See generally Seisinger v. Siebel, 220 Ariz. 85, ¶ 29 (2009) (citing Birmingham, 96 Ariz. at 110). These rules do not simply place a time-limit on appealing arbitration decisions, as with a notice of appeal. (Such a notice is, in fact, a means of facilitating appeals while simultaneously ensuring the finality of decisions.) Nor do the FASTAR rules simply demand that parties actually participate in and exhaust the arbitration process prior to taking an appeal, which was the point of the forfeiture rule upheld in Graf v. Whitaker, 192 Ariz. 403, ¶¶ 12-14 (App. 1998). The FASTAR waiver rules likewise are not based on a party’s misconduct, as with A.R.S. § 13-4033(C) for criminal defendants, or the common-law rule for fugitives before that, see Alday v. State, 15 Ariz. 334, 334 (1914). Rather, the FASTAR waiver rules substantively define and regulate the right of appeal by denying that right in a certain class of cases, deeming such a restriction to be desirable. This overt restriction of the right to appeal by the judiciary violates Article 3 of the Arizona Constitution.
For defendants, similarly, FASTAR discriminates against them by denying them the choice of whether to proceed with alternative dispute resolution (ADR) or to directly access the courts and immediately assert their right to a jury trial. Arizona’s Privileges and Immunities Clause guarantees all parties “an equal opportunity to the courts and an equal opportunity to appeal.” Eastin v. Broomfield, 116 Ariz. 576, 585 (1977) (quoting Hampton v. Chatwin, 109 Ariz. 98, 99 (1973)). By denying defendants the choice of ADR that is granted to plaintiffs and “plaintiff[s] alone” under FASTAR 103(a), the program denies defendants equal access to the courts and runs afoul of Article 2, Section 13 of the Arizona Constitution. The FASTAR system is unprecedented in its disparate treatment of litigants. But that aspect of the program has not yet received adequate attention to date, given that the case of Duff presents only an as-applied challenge by an individual plaintiff.
For these reasons, I respectfully continue to oppose the FASTAR program and urge the courts not to expand this program. A more fruitful reform would come from expanding the application of Rule 75(d), Ariz. R. Civ. P., and the similar FASTAR 123(d), as other attorneys have already suggested.
David D. Buechel
3501 N. Campbell Ave., Suite 104
Tucson, AZ 85719-2032