As a civil litigator who represents injured plaintiffs, I continue to respectfully oppose the FASTAR system, as I did both in the case of Duff v. Lee, 250 Ariz. 135 (2020), and in opposing the former petition to permanently adopt this program, Petition R-20-0012. For the reasons below, the FASTAR system is an experiment that should be ended, not expanded. And better judicial reforms should be pursued in lieu of FASTAR, to expedite the processing of civil claims while decreasing the expenses of litigation, which FASTAR does not do.
FASTAR Is an Unequal, Unconstitutional System.
FASTAR facially discriminates against civil defendants by denying them the choice of whether to proceed with alternative dispute resolution (ADR) or directly access the courts and immediately assert their right to a trial by jury. 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 civil defendants the choice of ADR that is granted to plaintiffs and “plaintiff[s] alone” under FASTAR 103(a), the program thus denies defendants equal access to the courts and runs afoul of Article 2, Section 13 of the Arizona Constitution.
The FASTAR system—unlike the compulsory arbitration system established under A.R.S. § 12-133—is unprecedented in its disparate treatment of litigants. Yet that aspect of FASTAR has received no attention to date. The case of Duff v. Lee, 250 Ariz. 135 (2020), presented only an as-applied challenge by an individual plaintiff to the FASTAR program, without raising the constitutional claims of a defendant. FASTAR’s unconstitutionality as to civil defendants therefore remains an unresolved defect with this system that should prevent the pilot program’s permanent adoption, or at least delay its adoption until that issue is litigated or clarified.
Compulsory Arbitration, Not FASTAR, Is Popular and Sound Public Policy.
FASTAR violates our state’s public policy in two fundamental ways. First, by creating a disincentive for so-called Alternative Resolution arbitration through the waiver of plaintiffs’ appeal rights under FASTAR 103(b)(2), and thereby creating an incentive for plaintiffs to choose the Fast Trial option over arbitration, the FASTAR program contradicts what the Arizona Supreme Court has repeatedly described as Arizona’s “strong public policy favoring arbitration.” N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 304 ¶ 16 (2004); see also Pima Cnty. v. Maya Constr. Co., 158 Ariz. 151, 154 (1988) (recognizing “Arizona's public policy that arbitration is a highly desirable method of resolving disputes not only between people who have agreed to arbitration but, in many cases, also to people who have not so agreed”).
Second, the FASTAR system contravenes our stated public policy in favor of appeals, because the FASTAR rules attempt to improperly bargain away one party’s right to appeal. See State v. Ethington, 121 Ariz. 572, 573 (1979) (prohibiting negotiated elimination of right to appeal in criminal cases). In the civil context, the right to appeal is a purely statutory right. S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, 52 (1999). But it is nonetheless a right that the Arizona legislature has granted in all civil actions commenced in the superior court that result in a final judgment, excluding some forcible entry and detainer cases. A.R.S. § 12-2101(A)(1).
When the legislature has wanted parties to waive the civil right of appeal, the legislature has expressly said so. Indeed, the legislature has eliminated the civil right to appeal for cases in the smalls claims divisions of justice courts under A.R.S. §§ 22-504(B) and 22-519. But the legislature has neither called for nor allowed a waiver of the right to appeal in other civil cases. To the contrary, the legislature has preserved the right to appeal for all civil arbitration cases, granting distinct appeal rights in arbitration matters through A.R.S. § 12-133(H) (the compulsory arbitration statute), A.R.S. § 12-2101(A)(1) (the general appeal statute noted above), and A.R.S. § 12-2101.01 (the appeal statute for the Uniform Arbitration Act and the Revised Uniform Arbitration Act). FASTAR’s complete waiver of plaintiffs’ statutory appeal rights is thus an unprecedented expansion of judicial authority, and it unwisely insulates from review even clearly erroneous decisions by arbitrators that unfairly prejudice plaintiffs. The question therefore remains: Why would the judiciary continue to perpetuate or expand the FASTAR program, eliminating statutory appeal rights that have been granted and protected by the legislature?
As noted, the FASTAR program was designed to create more trials and reduce parties’ use of arbitration. 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. This remains the design and purpose of FASTAR today. The system is built to undermine and reverse the long-standing, successful, and popular compulsory arbitration system under A.R.S. § 12-133.
Again, our legislature has made its public policy declarations in favor of both compulsory arbitration and appeal rights. “The declaration of ‘public policy’ is primarily a legislative function,” Ray v. Tucson Med. Ctr., 72 Ariz. 22, 35 (1951), and “statements of public policy must be made by the people through the legislature,” Local 266, Int'l Bhd. of Elec. Workers v. Salt River Project Agric. Improvement & Power Dist., 78 Ariz. 30, 40-41 (1954). The supreme court therefore should not take it upon itself to reverse our state’s public policy and eliminate the right to appeal in arbitration cases or any other class of cases.
FASTAR is an extremely unpopular program, with virtually no support outside the judges and judicial committees that helped create this program. Yet practicing attorneys are reluctant to criticize this program or, by extension, the judges who designed it and continue to promote it, whom these attorneys often regularly appear in front of. Accordingly, the express criticism of FASTAR here is only the smallest tip of the iceberg. The will of the legislature, as well as the silent majority, should be respected.
Better Reforms Are Available.
A better civil reform than FASTAR could be achieved through small revisions to Arizona’s evidentiary or procedural rules—for instance, applying Rule 75(d)(1)-(4), Ariz. R. Civ. P., relating to the admissibility of medical bills, to civil cases generally, whether those bills be for cases in Tier 1, Tier 2, or Tier 3. Indeed, Civil Rule 75(d), or the equivalent FASTAR 123(d), accounts for much of the success and popularity of arbitration compared to civil trials, as this provision promotes the “just, speedy, and inexpensive determination” of every civil action. Ariz. R. Civ. P. 1.
The FASTAR Program Is Unduly Complex.
Needless complexity also militates against the existing FASTAR program. For example, problems arise from having different times for service of process under Rule 4(i), Ariz. R. Civ. P. (90 days), and under FASTAR 104(a) (60 days), as well as different times for a waiver of service and a responsive pleading thereafter under Rule 4.1(c), Ariz. R. Civ. P. (30 days/60 days), and under FASTAR 105 (15 days/35 days). Further problems arise from measuring the time for a plaintiff to file a FASTAR 103(b) Choice Certificate based on the variable date of “the first filing by any defendant.” This rule causes difficulty both in calendaring items and meeting deadlines. The FASTAR rules also break down when a plaintiff selects Alternative Resolution arbitration in a multi-defendant case where all defendants are served, yet fewer than all the defendants have default entered against them. In that scenario, FASTAR 122(d) requires an arbitrator to “refer proceedings involving the defaulted defendants to the assigned judge,” while the arbitrator conducts a hearing for the remaining parties. But this rule leads to inconsistency and inefficiency, with two decision-makers deciding potentially identical questions of damages and comparative fault in separate hearings.
To paraphrase the archeologist Joseph Tainter, there is a diminishing marginal return of increased complexity. To give credit to FASTAR’s creators, this program was a bold, creative experiment. But smaller, simpler, more efficient judicial reforms are now called for, both by practical experience and the collected data. The best reform is the immediate restoration of the well-tested compulsory arbitration program.
David D. Buechel
State Bar No. 033388
HOLLINGSWORTH KELLY
3501 N Campbell Ave, Ste 104
Tucson, AZ 85719
[email protected] Telephone: (520) 882-8080