Arizona Podiatry Ass'n v. Director of Insurance

422 P.2d 108, 101 Ariz. 544, 1966 Ariz. LEXIS 392

• Court: Arizona Supreme Court
• Decided: December 22, 1966
• Docket: 8676
• Status: Published

Opinions

McFarland, Justice:

This is an appeal by the Arizona Podiatry Association and Kenneth S. Garvin from a judgment of the Superior Court of Maricopa County dismissing appellants’ petition on appeal from an order of the Director of Insurance of the State of Arizona, and from an order granting summary judgment in favor of appellees, Arizona Blue Shield Medical Service and Associated Hospital Service of Arizona.

This appeal was perfected on July 26, 1965, by filing.a notice of appeal and bond for costs on appeal. This date is subsequent to the creation and commencement of operation of the Court of Appeals. The case was filed with the clerk of this court, having come directly from the Superior Court, presumably under authority of A.R.S. § 20-166, which provides as follows:

“A. An appeal from the director shall be taken only from an order on hearing or an order refusing a hearing. A person aggrieved by any such order may, within thirty days after the order has been mailed or delivered to the persons entitled to receive it, or within thirty days after the director’s order denying rehearing or reargument has been so mailed or delivered, appeal from such order on hearing or such order refusing a hearing by petition to the superior court for Maricopa county. * * *

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“F. Appeal may be taken to the supreme court from the judgment of the superior court as in other civil cases to which the state is a party. * * * ” 7 A-R.S. § 20-166

This statute was enacted prior • to the adoption of the new judicial code, which created and established the jurisdiction of the Arizona Court of Appeals. The question, therefore, is whether the instant case should be considered by this court, or referred to the appropriate division of the court of appeals. The determination of this question requires an examination of the constitution and the statutes governing our judicial system.

Article 3 of the Constitution of Arizona reads as follows:

“Distribution of Powers

“The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.” A.R. S.Const, Art. 3

Article 6, as amended November 8, 1960, as applicable to the instant case, provides:

Ҥ 1. Judicial power; courts

“Section 1. The judicial power shall be vested in an integrated judicial department consisting of a Supreme Court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts. Adopted, election Nov. 8, 1960.”

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Ҥ 5. Supreme court; jurisdiction; writs; rules; habeas corpus

“Section 5. The Supreme Court shall have:

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“3. Appellate jurisdiction in all actions and proceedings except civil and criminal actions originating in courts not of record, unless the action involves the validity of a tax, impost, assessment, toll, statute or municipal ordinance.

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“5. Power to make rules relative to all procedural matters in any court.

• “6. Such other jurisdiction as may be provided by law.” A.R.S., Const., Art. 6

In Burney v. Lee, 59 Ariz. 360, 129 P.2d 308 (1942), decided prior to the adoption of the amendment in 1960 to Article 6 of the Constitution, holding the supreme court had inherent power to make rules of procedure, we said (after quoting A.R.S.Const., Art. 3, supra) :

“Article 6, Section 1, is in this language: “ ‘(Cotirts.) — The judicial power of the state shall be vested in a Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law.’

“It would appear from a reading of these two sections that if the power to make rules of practice and procedure governing the courts is a judicial one, that power is given by the constitution exclusively to the courts. If, on the other hand, it is purely legislative in its nature it would apparently follow that the power rests solely in the legislative branch of the government. Let us examine the nature of this power. It has been held almost unanimously from time immemorial that courts have the inherent power to prescribe rules of practice and rules to regulate their own proceedings in order to facilitate the determination of justice, without any express permission from the legislative branch. (Cases cited.).” 59 Ariz. at 362, 129 P.2d at 309

This rule-making procedure has now been vested exclusively in the supreme court, as provided in Article 6, § 5, ¶ 5, of the constitution, as amended November 8, 1960:

“Section 5. The Supreme Court shall have:

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“5. Power to make rules relative to all procedural matters in any court.”

In providing that the supreme court shall have “power to make rules relative to all procedural matters in any court,” the supreme court was specifically given jurisdiction over all future rules or changes in the rules for judicial procedure, which includes appellate procedure.

In Burney v. Lee, supra, we held that'under an act of the Arizona legislature statutory rules of procedure “shall be deemed to be rules of court and shall remain in effect as such until modified or suspended by rules promulgated pursuant to this act.” This same principle is applicable to the constitutional authority vested in the supreme court in giving it the power “to make [all] rules relative to all procedural matters in any court.” The statutory rules shall remain in effect until modified or suspended by the rules promulgated by the supreme court. Since the amendment of Article 6, § 5, of the constitution, supra, this court not only has the inherent power to make rules, but it has this power under the 'constitution, and this power may not now be reduced or repealed by the legislature.

This court, in accordance with Article 6, § 5, |[ 5, adopted the following rule:

“Rule 47. General Provisions — Court of Appeals

“Except as provided herein, procedures in appeals and other matters before the Court of Appeals shall be the same as on appeals to the Supreme Court, and Rules 1 through 26 of the Supreme Court are herewith adopted for the Court of Appeals. In connection with matters before the Court of Appeals, those rules shall be read by substituting, for the words ‘Supreme Court’, the words, ‘Court of Appeals’, and for ‘Chief Justice’, the words ‘Chief Judge of the division concerned’.

“47(a) Motion for rehearing. Any party desiring a rehearing from a decision of the Court of Appeals may, within 15 days after the Clerk has given notice that a decision has been rendered by the Court of Appeals, file therein a Motion in writing for a rehearing, specifying the particular grounds for rehearing. A copy of the Motion shall be served upon the adverse party or his attorney. A Motion for Rehearing shall not be amended except by leave of Court.

“The adverse party may file objections to the Motion for Rehearing within 10 days after service of such Motion upon the adverse party.

“47(b) Petition for review. Any party, may, within 15 days after the clerk has given notice of the denial of a motion for rehearing, file with the clerk of the Court of Appeals a petition for review of the case by the Supreme Court. The petition shall be filed in 6 copies and shall not specify the grounds upon which it is based. Upon receipt of a petition for review, the clerk shall transmit the entire record in the case to the Supreme Court. There shall be no response filed to a petition for review. If the petition is accepted for review, four (4) additional copies of the briefs and abstract of record shall be filed with the Clerk of the Supreme Court by the respective parties.” 17 A.R.S., Rules of Supreme Court, No. 47, 47(a) and 47(b)

The jurisdiction of the Court of Appeals, insofar as it is prescribed by statute, is set forth in part in 4 A.R.S., § 12-120.21, as follows:

“A. The court of appeals shall have:

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“2. Appellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes punishable by death or life imprisonment.” 4 A.R.S. § 12-120.21 A.R.S. § 12-2101 provides, in part:

“A. An appeal may be taken to the court of appeals from the superior court in the instances specified in this section.

“B. From a final judgment entered in an action or special proceeding commenced in a superior court, or brought, into a superior court from any other court, except in actions of forcible entry and detainer when the annual rental value of the property is less than three hundred dollars.” 4 A.R.S. § 12-2101.

As the exceptions in each of these statutes are not applicable in the instant case, it is clear that, under the above statutes and rules of the supreme court, had this appeal been made directly to the appellate court, it would have had jurisdiction, and it would have jurisdiction if the same were transferred to that court.

There are over forty specific laws in' the Arizona statutes similar to the one in the instant case which provide for appeal to the Arizona Supreme Court. They include cases and proceedings dealing with many diverse subjects — ranging from adoptions, 2 A.R.S., § 8-110, to railroads, 12 A.R.S. § 40-843. All of these statutes are written in the permissive sense, by the use of the word “may” or its equivalent. All were enacted prior to the establishment, of the court of appeals. In the light of the broad scope of appellate jurisdiction given to the court of appeals by the aforementioned provisions of the new judicial code, it is inconceivable that the legislature meant to preclude that court’s jurisdiction by its failure to repeal these statutes.

The question then resolves itself to this: Is the appellate jurisdiction granted the court of appeals in respect to this case necessarily exclusive, or is it concurrent with that of the supreme court?

The jurisdiction of the court of appeals is not defined within the constitution itself, but is left to the legislature and the procedural rule-making power of this court provided for in Article 6, § 5, ¶ 5, supra. The constitution merely provides that “[t]he jurisdiction * * * of any intermediate court shall be as provided by law.” 1 A.R.S., Const., Art. 6, § 9. This provision has been .implemented by A.R.S, § 12-120.21 and A.R.S. § 12-2101, quoted in part, supra.

It must be noted that the constitutional and statutory provisions which delineate the jurisdiction of Arizona’s two appellate courts (the Supreme Court and the Court of Appeal's) are very similar in that they provide effectively for jurisdiction in both courts over practically all civil • cases appealed from the superior court.

It has long been a general rule of law that a 'grant of jurisdiction to one court does not, in the absence of an express provision to that effect, imply that the jurisdiction is to be exclusively vested in that court. Gittings v. Crawford (C.C.) Taney, 1 Fed.Cas.No. 5465; Ames v. State of Kansas, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 18 S.Ct. 685, 42 L.Ed. 1126; United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331; Merryweather v. United States (C.A.9), 12 F.2d 407; Snow v. Milner (Tex.Crim.) 364 S.W.2d 726.

In the case of Bors v. Preston, 111 U.S. 252, 4 S.Ct. 407, 28 L.Ed. 419, the issue was whether the constitutional grant of original jurisdiction to the United States Supreme Court in all cases affecting consuls necesessarily precluded similar jurisdiction in the district courts of the United States granted by act of congress. The court, in quoting from a previous decision by Justice Taney, said:

“ ‘ * * * The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive. * * 111 U.S. at 260, 4 S.Ct. at 410.

A similar case is State ex rel. Bullard v. Jones, 15 Ariz. 215, 137 P. 544, wherein we held that the superior court and this court have concurrent jurisdiction in the issuance of writs of quo warranto. In that case, as in the instant case, the word “exclusive” was omitted from either 'the constitutional or statutory provisions, and, although Article 6, § 5, of the Arizona constitution specifically provides for exclusive jurisdiction in subsection (2), relating to disputes between counties,¹ it does not so provide in regard to the appellate jurisdiction set forth in subsection (3), nor is the word “exclusive” used in the statutes providing for the jurisdiction of the court of appeals. The right to appeal is one which must be provided either by the constitution or by the legislature. If a right of appeal is granted, then the ultimate right to determine the appeal rests in the supreme court by virtue of Article 6, § 5, and the procedure by which an appeal is perfected shall be provided by the supreme court. Ariz. Const., Art. 6, § 5; 4 A.R.S. § 12-109; 17 A.R.S., Rule 47(b) ; State v. Birmingham, 96 Ariz. 109, 293 P.2d 775.

If the legislature intended to make the jurisdiction of the court of appeals exclusive, and not concurrent with that of the supreme court, and further intended that the act not be subject to amendment or abrogation by rules of the supreme court, the act would be unconstitutional, as it would be in conflict with the constitutional provision that “the supreme court shall have appellate jurisdiction in all actions and proceedings * * Art. 6, § 5, ¶ 3 and Art. 6, § 5, ¶ 5, vesting in the supreme court “power to make rules relative to all procedural matters in any court.” Neither of these constitutionally granted powers may be limited by legislative enactment. In passing upon the matter of constitutionality of a statute we have held it is our duty to determine whether the statute is clearly prohibited, and that the rule is that all presumption and intendments are in favor of the validity and constitutionality of the legislative acts, and that we should give a construction consistent with validity if it is at all possible. Earhart v. Frohmiller, 65 Ariz. 221, 178 P.2d 436. It must be presumed that the legislature knew of these constitutional provisions vesting this jurisdiction and power in the supreme court, and therefore it was its intention that the jurisdiction of the court of appeals would be concurrent with that of the supreme court.

We therefore hold the instant case is properly before this court. However, due to the pending workload of the court, it has been the policy of this court to transfer cases, in which the court of appeals has concurrent jurisdiction, to the appropriate division of that court. If it becomes apparent that it is appropriate to change this policy, this court will implement procedure therefor.

Accordingly, it is ordered that this case be transferred to Division One of the Court of Appeals by authority of A.R.S. § 12-120.-23, as it has been properly filed in, and heretofore pending in, this court.

STRUCKMEYER, C. J., BERNSTEIN, V. C. J., and LOCKWOOD, J., concur.

1 . A.R.S., Const., Art. 6, § 5, ¶ 2, provides:

“Section 5. The Supreme Court shall have:

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“2. Original and exclusive jurisdiction to hear and determine causes between counties concerning disputed boundaries and surveys thereof or concerning claims of one county against another.”