Blankenbaker v. Marks
299 P.3d 747
Ariz. Ct. App.2013Background
- Plaintiffs Blankenbaker, Wherry, and Indomenico sought a writ of mandamus against the Director of the Arizona Department of Insurance to enforce A.R.S. § 20-461(B) against Blue Cross Blue Shield of Arizona.
- Plaintiffs alleged Blue Cross discriminated against chiropractic patients in co-pays, treatment authorizations, treatment limitations, and exclusions, and falsely claimed broad policy coverage.
- Plaintiffs asserted the Director had a statutory duty to enforce the statute under A.R.S. § 20-142(A) and to enforce the overall Title 20 Insurance Code.
- The Director moved to dismiss arguing enforcement of § 20-461(B) is discretionary and not a ministerial duty, and mandamus is unavailable for discretionary acts.
- The trial court granted the motion to dismiss, concluding the Director could exercise discretion in enforcing the statute, and thus mandamus relief was inappropriate.
- On appeal, the court affirmed, holding that the Director’s enforcement of § 20-461(B) is discretionary and mandamus cannot compel enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether enforcement of § 20-461(B) is discretionary or ministerial | Plaintiffs contend the Director must enforce under § 20-142(A) | Director argues enforcement is discretionary | Discretionary; mandamus not available |
| Whether § 20-142(A) creates a mandatory duty to act | Shall enforce creates a mandatory duty to initiate enforcement | Shall enforce denotes general duty but not a ministerial obligation | Not mandatory; discretion remains |
| Whether the statutory scheme provides a private right of action or administrative remedy that negates discretionary enforcement | Statutes create an administrative remedy that Director must act upon | Remedy is administrative and within Director’s discretion | Administrative remedy does not remove discretion; mandamus still inappropriate |
| Whether Director’s refusal to act constitutes an abuse of discretion | Director’s inaction amounts to abuse of discretion | Non-enforcement permissible based on discretion | No abuse; inaction not mandamus conduct |
Key Cases Cited
- Sensing v. Harris, 217 Ariz. 261 (App. 2007) (mandamus available only for ministerial acts; discretion allowed in enforcement actions)
- Wesley v. State, 117 Ariz. 261 (App. 1977) (enforcement of regulatory duties not like ministerial mandamus; discretion in enforcement duties)
- Kahn v. Thompson, 185 Ariz. 408 (App. 1995) (agency enforcement of ordinances includes judging discretion in scope of enforcement)
- Ariz. Libertarian Party v. Schmeral, 200 Ariz. 486 (App. 2001) (‘shall’ may be nonmandatory depending on context; discretion may apply to enforcement)