*1
ARIZONA non-profit corporation, and Ken Garvin, Appellants, neth S.
DIRECTOR OF INSURANCE of the State of Arizona, Arizona Blue Shield Medical Serv ice, non-profit an Arizona medical service Hospital corporation, and Associated Serv non-profit Arizona, hos ice an Arizona pital corporation, Appellees. service
No. 8676. Court Arizona.
In Banc.
Dec. 1966.
Rehearing Denied Jan.
of provides which as follows: “A. An appeal from the director shall only taken hearing be from an order on refusing person or an order a hearing. A aggrieved by may, any such order within thirty days after order bеen mailed or en- persons to the delivered it, thirty titled to receive within days denying after the director’s order rehearing reargument has been so delivered, appeal mailed or from such on hearing refusing order or such order hearing by petition superior to the ** * Maricopa county. court for ‡ Hi Hí Hí Hí Appeal “F. may taken to be judgment court from of the court as in other civil cases to which ” * * party. state is a A-R.S. (cid:127) This statute prior was enacted to the Feinstein, LaPrade, Allen L. Paul W. adoption judicial code, оf the new Phoenix, appellants. for created and established the Smith, Gen., Atty. Darrell F. E. Gene the Arizona Appeals. ques- Court of The Wade, Mesa, for Director of Insurance. tion, therefore, is whether the case instant Carson, Elliott, Messinger, Richard H. court, be should considered Elliott, Laughlin Phoenix, & for Ragan, referred to appropriate of the division Arizona Blue Shield Medical Service and appeals. of this determination Hospital Associated Service question requires an examination of the governing constitutiоn the statutes our judicial system. McFarland, Justice: Article 3 of Constitution appeal by Podiatry This is an the Arizona reads as follows: Association Kenneth Garvin S. from judgment the Superior Court of “Distribution of Powers Maricopa County dismissing appellants’ powers government “The of the petition on an order from into State Arizona shall divided Director of Insurance of the State separate departments, Legisla- three Arizona, granting and from an Executive, order sum- tive, Judicial; and the mary judgment appellees, and, except favоr provided as in this Constitu- Arizona Blue Shield Medical Service tion, separate departments such shall be Hospital Associated of Arizona. distinct, depart- Service one of and no powers properly ments shall exercise perfected July This was on A.R. belonging to either of the others.” 1965, by filing.a notice bond S.Const, Art. 3 appeal. costs on This date is subse- 8, 1960, Article as amended November quent creation and commencement applicable case, provides: instant of operation Appeals. of thе Court of power; courts case “§ was filed with the clerk Judicial having judicial power come from “Section 1. The Superior authority de- presumably integrated judicial under be vested an Supreme Court, partment prescribe practice consisting of rules regulate proceedings such intermediate courts as rules to their own by law, provided in order to facilitate the determination of *3 superior justice, any express permission inferior the without such courts justice (Cases may by law, from provided legislative as and the branch. be 8, cited.).” 362, Adopted, election 1960.” Ariz. at 129 at courts. Nov. 59 P.2d * * * * * * court; jurisdiction; procedure Supreme rule-making This has been now “§
writs; rules; corpus exclusively supreme vested in habeas the provided as in of the Article Court shall Supreme “Section 5. The constitution, as amended November have: 1960: j|s j{í jfs ‡ Supreme “Section 5. Court shall Appellate jurisdiction “3. in all actions have: proceedings except civil and criminal íjí ‡ 5}í í¡í not of originating in courts “5. to all Power to make rules relative record, involves the unless the action procedural any matters in court.” assessment, tax, impost, validity aof toll, municipal providing supreme In that the shall statute ordinance. had inherent cedure, (cid:127) governing the courts is a make rules of exclusively state nature “Article “ other courts as branch of the these two sections that In provided “6. amine the nature of this “It all “5. Power the amendment in 1960 to Article ‘(Cotirts.) Constitution, holding (1942), 3, supra) v Burney procedural would power Such we said hand, by v courts, courts inferior to the may would decided be other v. Section —The rests power appear to the courts. it is law.” : to make rules relative (after quoting vested Lee, given by government. ífC matters in practice solely purely legislative in its justices apparently of the judicial power of provided prior A.R.S., Const., from in a make rules of if power. this A.R.S.Const., any [*] judicial constitution follow If, Let us ex- reading as legislative language: procedure power law.’ 129 P.2d adoption court. may on the [*] It has Court, Art. peace, 6 of pro- one, be 'constitution, preme by have that'under an act of the be reducеd or This same constitutional procedural includes statutory remain in supreme effect ed in diction rules, [all] 5, 5, Appeals This “Rule 47. General the to be rules of court rules the rules |[ only rules relative to “power court in as such but rules court, in Since court.” over adopted promulgated court was appellate procedure. rules of has the effect principle matters Burney constitution, supra, and this for promulgated all future rules or authority giving until repealed until modified or accordance with make judicial рrocedure amendment inherent specifically given following rule: modified all pursuant in it the Provisions —Court power statutory rules relative Lee, procedural vested power applicable to the any court,” procedure, power “to make power shall “shall supra, legislature. rules shall under suspended suspended remain Article Article this act.” be deem not now to make we changes matters to all juris- held the su “Except provided herein, unanimously procedures time as from been held almost appeals the inherent and other matters before immemorial that courts have part Appeals A.R.S., same forth in in 4 12-120.21, Court of shall be the as appeals on follows: through Rules 1 “A. The court of shall have: adopted Court are herewith -{» 4» 4* Appeals. In connection matters Appellate jurisdiction “2. in all actions Appeals, before the Court of those rules proceedings originating per- in or by substituting, for the shall be read mitted appealed law to from words, ‘Supreme Court’, ‘Court words superior court, except criminal aсtions Appeals’, Justice’, for ‘Chief involving punishable by crimes death *4 con- Judge words of the ‘Chief division life imprisonment.” 4 A.R.S. 12-120.21 § cerned’. provides, part: A.R.S. in § “47(a) rehearing. Any Motion for “A. An appeal be taken to party desiring a rehearing from decision appeals court of from the Appeals may, of the Court of within 15 court in specified the instances in this days given after the Clerk has notice section. by that a decision has been rendered “B. From a judgment final in entered Appeals, Court of file therein a Motion an action spеcial or proceeding com- in writing specifying a rehearing, for in superior court, menced brought, particular grounds rehearing. A for into a from other copy upon of the Motion shall be served court, except entry in actions of forcible party attorney. the adverse A his and detainer when the annual rental value Motion Rehearing for shall not be property of the is less than three hun- except by amended leave of Court. dred dollars.” 4 A.R.S. 12-2101. party may objections “The adverse file exceptions As the in еach of these to the Motion Rehearing for within 10 applicable statutes are not in the instant days upon after service of such Motion case, that, is clear under the above party. adverse statutes and rules of the “47(b) Petition Any party, for review. had been made to the may, days within 15 clerk after the appellate court, juris it would have had given notice of the denial aof motion for diction, jurisdiction if it would have rehearing, file with the clerk of same were transferred that court. Court Appeals of petition fоr review forty in' specific There are laws over of the Supreme case Court. The the Arizona similar to the one statutes petition shall 6 copies be filed in provide in the instant case which for specify grounds upon which it They Supreme the Arizona Court. Upon is receipt based. a petition dealing include proceedings cases and review, for the clerk shall transmit adop- many subjects ranging from diverse — entire record tions, railroads, the case to the A.R.S., 8-110, All statutes response There shall 40-843. of these be no filed sense, by permissive are written petition to a for petition If review. is “may” equivalent. use or its of the word accepted review, for four (4) additional establishment, prior All were enacted copies of the briefs and abstract of light appeals. of the In the record shall be filed Clerk with the appellate jurisdiction scope of the broad Court respective given appeals by the afore- the court parties.” A.R.S., Rules of judicial provisions of the mentioned new No. 47(a) 47(b) code, it that the is inconcеivable jurisdiction jurisdiction The court’s preclude of the meant to Appeals, insofar prescribed as it by statute, repeal is these is its failure to statutes. set neces- question affecting in all cases consuls
The
then
itself to this: Court
resolves
essarily precluded
jurisdiction
appellate jurisdiction granted
Is
similar
appeals
district
of the United
respect
case
courts
States
court, in
exclusive,
granted by
congress. The
necessarily
act of
it concurrent
quoting
previous
from a
decision
with that of the
court?
Justicе
Taney, said:
jurisdiction
‘“
* *
is,
itself,
in this
true rule
case
not defined within
constitution
ap-
think,
constantly
pro-
the rule which is
but
left to
and the
plied
ordinary
legislation,
acts
rule-making
of this court
cedural
jurisdiction
over
provided
supra.
grant
in Article
subject-matter
merely provides
certain
to one
does
The constitution
“[t]he
* * *
jurisdiction
not,
itself, imply
that that
any intermediate
* *
111 U.S.
provided
be exclusive.
shall be as
law.”
A.R.S.,
provision
at 410.
Const.,
This
at
S.Ct.
9.§
A.R.S,
.implemented by
12-120.21
has been
A
case
ex rel.
similar
is State
quoted
part,
and A.R.S. §
*5
544,
215,
Jones,
Bullard v.
15 Ariz.
137 P.
supra.
and
the
wherein we hеld that
that
constitutional
It must be noted
the
jurisdiction in
court have concurrent
statutory provisions
delineate
and
which
In
quo
of
of
the issuance writs
warranto.
jurisdiction
appellate
of Arizona’s two
the
case,
case,
as in the instant
the word
that
of
(the Supreme Court and
courts
either 'the
“exclusive” was omitted from
they
very
in
Appeal's) are
similar
that
and,
statutory provisions,
constitutional or
jurisdiction
provide effectively for
in both
6, 5,
although Article
of
con
the Arizona
§
(cid:127)
practically all civil cases
courts ovеr
specifically provides
stitution
for exclusive
appealed
superior court.
from the
jurisdiction
relating to
(2),
in subsection
counties,1
disputes
it does not so
between
long
general
of
It has
been a
rule
provide
regard
jurisdic
appellate
in
to
jurisdiction
one
'grant
that
of
to
law
(3), nor is the
tion set forth in subsection
express
not,
of an
in the absence
court does
pro
in the
word “exclusive” used
statutes
provision
effect,
imply
to
that
that
viding
jurisdiction
the court of
for the
exclusively
jurisdiction
vested
is to be
right
appeals.
appeal
to
is one which
(C.C.)
Gittings v.
that court.
Crawford
provided
by
either
the constitution
must be
5465; Ames
struction that-when a act by legislature. wise Legislature act, is in prior conflict a it by implication repeals prior practical majority much The so effect of act as is in oрinion open gates conflict with the to latter law.” will wide the City thereby Bisbee County, v. Cochise 44 Ariz. direct 233, 36 also, expect- City effectively nullifying very relief Douglas 559. See P.2d
551 Corporation ed from the the intermediate creation of Com’n v. Pacific Motor Truck appellate Co., 562; It is difficult to conceive of 83 Ariz. 317 P.2d Ross v. reasons, all legal Commission, the various both and non- Industrial 82 Ariz. P.2d 612; legal, justifiable why unjustifiable, County, both Apache Barth v. by-pass counsel will seek to right appeal P. The is a appeal any case, given probability but the сreature of statute because such un- was significant is a that That number will. known obviously at common law. It is heavy create prerogative will new on this legislature burdens of a which creates contemplated Court never right constitu- to limit fit. ques- as it sees The tional amendment I is uncontrovertable and tion presents which thus itself is whether find it that unthinkable legislature appellant’s has limited an project setting up should right undertake appeal a direct to the administering exceptional procedure yes Court. I clearly think the is answеr necessary effectively deal added with such entirely that the was within unnecessary agree rights burdens. I with the its doing so. statement made the Wisconsin statutory right appeal to the court Court : appeal given in is A.R.S. 12-2101. provides B appeal subsec. that an practice, “As matter of sound may be taken from a “final judgment there no reason for allowing a choice of entered special proceeding in an action or appeal either to circuit court or superior brought commenced procedure court. Where the into court from other court clearly to circuit provided, * * A.R.S. 12-120.21 defines permitted exclusive. Where court of directly supreme court, pro- that pertinent part ap- states that the court of County cedure is also exclusive.” peal appellate jurisdiction in “all actions Caldwell, Milwaukee v. Wis.2d and proceedings originating permitted in or (1966). N.W.2d appealed law to be from the majority opinion states that “if the exception court” with the of “criminal jurisdic- intended to make the involving punishable crimes death appeals exclusive, tion of imprisonment.” life not concurrent with that of the provides in effect that those criminal actions court, and further intended the act excepted appeal- under 12-120.21are to be subject abrogation by to amendment or ed the Supreme am supreme court, rules of the the act would be opinion only expressly excepting unconstitutional”, as it would be in conflict appealable *8 being certain actions from to 6, 6, jf both Art. 5 3 and 5 5 Art. § court appeal оf and the same time at of my our I express constitution. must dis- providing specifically right a for of direct agreement. very appeal Supreme to the Court those others, excepted legisla- the and no This Court has held on of a number right ture that the manifested its intention appeal that occasions the to right substantive appeal of be in all other instances is to statutory, only by statute, is force of exists through appellate and the intermediate court may only given be or denied the Supreme the not Court. to legislаture. constitution the or State v. right Birmingham, appellant’s 96 Ariz. Such a limitation on an 392 P.2d 103; previously, appeal noted reaffirming Ariz. to for as I 390 P.2d valid 95 authority to Porter, 155; the Ariz. the does Kemble v. 88 357 P.2d have creates; 239; Galvez, any further- right v. Ariz. P.2d limit which it Rueda more, different Mehagian’s Furnishings, is no v. Home limitation Stevens a 208; statutes which Knape Ariz. effect than those other Inc., 90 365 P.2d v. a 195; presented to require initially Brown, be P.2d case commission, board, why or or fail majority to I also to see feels infringed other inferior upon that 5 3 would be § ¶ jurisdic- if the legislature for the intended Stеarns, Young the case of Ill. appeal tion of the court to be other than of page 222, Supreme at the Illinois Court Supreme concurrent with that of the Court. succinctly stated its view of the role of provides The constitution for the legislature. I am in accord. “appellate jurisdiction” Court to have only “There are four classes cases of exactly that is what does have virtue right in which there is a constitutional 12-120.24, implemented by of Rule A.R.S. § appeal of or writ of error to this court Rules Court. The fact of * * *. Even in сases such con- these appellate put on that review this Court right appeal stitutional or writ of error mandatory than a basis selective rather right this is not the of a direct to jurisdiction, does not but abates abate our appeal trial from or writ of error to the only every to decide having burden appeal but such or writ of error appealed. firmly case which is I believe intermediary through jurisdiction that the of this Court remains Appellate Legislature It is jurisdiction inviolate all, some, to determine as to whether in or secure, appeal subject likewise is cases, appeal he any or these be, however, as it review of should direct to this otherwise this Court and all cases where we added). (emphasis necessary re- deem desirable. above, In view of the I cannot conceive initially quirement taken that an procedural power rule-making of how not the intermediate does upon infringed or is limited Court duty right iota this Court’s lessen one enactment, legislative for it does not to be the final declarer the laws of this legislative displace was intended to state. power give right to and also limit the Hence, per- appeal. majority supposes If that the instant was since the Supreme Court, by promulgation appeal began after fected function, procedural rules, may abrogate I lies in amend believe present statutory appeal, then at time right this Court we do not I usurping to decide matter. have our form cause transferred a basic tenet of would therefore contravention of order 1, pursuant separа- Appeals, provides for a government the Court Division B, 12-120.22, for con- powers among subsec. three distinct tion of decision the merits. sideration on branches. APPENDIX by Specific Appeals Statutes: I Miscellaneous Adoption 8-110 2. Certiorari 12-2007 Compensation
3. Workmen’s *9 Privilege Tax 42-1339 Transaction 4. § 12-903, Decisions 12-913 Administrative 5. §§ Improvement Agricultural 45-907 6. District § 45-913
§ Corporation 40-254 7. Commission § Dispensing Opticians Brd 32-1695
8. § 30-511 Electrical District 9. § 23-1146, 23-1144, Occupational 23-1230 Disease Act
10. §§ Compensation 23-948, 11. Workmen’s 23-951 §§ Power Districts 30-313 12. § Land
13. State Commission 37-214 § 37-134, 14. Public Lands C subsec. § ' 15. Soil Cons. determination of District — Commissioner 45-2055:* § r appellate procedure, refers § 37-214. Irrigation 16. Districts 45-1858 §
17. Director of Insurance 20-166 §
18. Mental Health 36-538 § Equalization Bd.
19. E State subsec. § 20. Divorce 25-351 § Authority
21. Power 30-174 § 22. Unconstitutional Statute or 12-932 Order § 23. Medicine Surgery 32-1453 §
24. Sale of Securities 44—1984 § Appeals
25. Criminal Fee 13-1721 § Appeals (Remittitur 26. Additur) 12-2104 § 27. Elections —Successor to Office 38-345 § Appeals 28. 13-1720 §
29. Railroads 40-843 §
30. Oil & Gas 27-526 § Nursing
31. 32-1665 § Naturopathy
32. 32-1554 § Wage
33. Minimum Decision 23-325 §
34. Livestock and Animals 24-621.15 §
35. Decedents’ Estate 14-643 §
36. Ground Waters 45-321 §
37 Water Districts 45-2172 §
38. Barbering 32-354 § Employment 39. Security 23-682 § n
40. Eminent Domain 12-1127 § Military
41. Court Martial 26-210 § exhaustive, The foregoing merely list is not and is intended to illus- trate the may number statutes where an be taken possibility provide There is a some procedure statutes for such a and not be in the listed index. specify Supreme applicable also statutes See are still II Appeals: but amended to include the Court of 6. 13-1720 13-1715 § 1. 7. 13-1721 13-1716
2. 8. 12-321 *10 9. 4. 12-322 13-1718 10. 12-323