*1 NEW, Appellant, James REGENTS, a
ARIZONA BOARD OF
bоdy corporate, Appellee. County by Douglas Aid Legal Coconino No. 1 McDonald, W. Meiklejohn, A. Eleanor Craig of Aрpeals Miller, Flagstaff, Robert for L. Smith appellant. Wall, Mangum, Stoops Warden Ger- & Jan. Nabours, appellee. Flagstaff, ald W. for
Rehearing March Denied OPINION 15, 1980.
Review Denied Oct.
DONOFRIO, Judge.
(New)
James
and Steven
Appellаnt,
New
Galas,1
at
plaintiffs below were students
during
1975-
University
Northern
was
dormitory that
1976 and resided at a
owned,
by the
operated and maintained
University and
Regents
Board of
(Board of Re-
Colleges of Arizona2
State
was al-
equipment
gents). Some stereo
dоrmitory
plaintiffs’
stolen from
legedly
pursuant
After their
filed
rooms.
claims
denied,
sued
plaintiffs
12-821 were
on the
Regents
the Board
by the
thаt their
were caused
theory
losses
repair or modi-
Regents’
Board of
failure
agent
its
fy
door locks known
but
bond
Plaintiffs did
defective.
moved to strike the A.R.S. §
instead
superior court
requirement.
the bond
plaintiffs’
nied
motion to strike
Regents’
granted
Board
rеquirement,
findings:
motion to dismiss and made these
Arizona has the
1. That
State of
right
the condi-
power
to determine
pursuant
tions
cirсumstances
person
an
for
file
damages against
in a tort
either
contract;
for
action or
breach of
of thе Arizona
Section 12-823
provides that at
Revised Statutes
complaint pursuant
time
12-821,
file
plaintiff shall
A.R.S. Sec.
simply
parties
All
havе
referred to this board
review here
is not under
1. Steven Galas’s case
throughout
as the Arizona
for failure to
Board of
was dismissed
because
15-724(A).
litigation.
appellate
an
See
either
bond or
affida-
file
in lieu
vit
thereof.
*2
69
Supreme
interpreted
therewith a bond in an amount not less Our
Court
that clause
$500.00,
upon
than
conditioned
pay-
state,
the
as a
that “all citizеns of our
command
by plaintiff
by
ment
of all costs incurred
status,
regardless
their financial
must be
the
if the plaintiff
fails to recover
equal opportunity
afforded an
to the courts
”
judgment;
Chatwin,
98,
Hampton
. .. .
v.
109 Ariz.
1037,
99,
(1973).
statutory provisions
said
are not
1038
arbitrary
unreasonable or
and there is no
Broomfield,
576,
Ariz.
In Eastin v.
116
provisions
require-
for waiver of the bond
Supreme
our
ment.
2,
13,
as violative of Art.
struck down
§
12-567(1)
the
non—
Ariz.Const.
Appellant
§
New filed a
notice of
in
waivable cost bond
medical
appeal. Pursuant
to Arizona Rules of Civil
Procedure,
73(i)3
malpractice litigation.
despite
rule
he
an affi-
It did so
the
submitted
expressly
davit in lieu of bond because of his financial
fact that
the statute
authorized
approved
same which was
inability
presiding judge
upon
the
to rеduce the bond
by
superior
the
court.
showing
indigency
“upon
just
or
other
opined:
cause.” The court
appeal аppellant urges that we re-
On
indigent,
As to the
the statute violates
upon
verse the
the several
trial court based
the Arizоna constitutional privileges and
including
theories
that waiv-
asserted below
II, 13,
immunities clause. Art.
by deny-
§
er of
required
the
12-823 bond is
ing access to the courts. As to the non—
by
privileges
the
and immunities clause of
indigent,
places
it
Constitution,
a heavier
upon
thе Arizona
burden
Art.
§
his access to the court and therefore vio-
We hold that
the A.R.S.
12-823 bond
§
lates the same clause of the Arizоna Con-
requirement violates Art.
13 of the
§
Chatwin,
stitution. Hampton v.
supra.
Arizona
indigents by
Constitution as to
Id.
by plaintiff of all costs incurred plaintiff state in the action if fails CORPORATION, AMFAC MORTGAGE judgment. recover Corporation, Appellant, Oregon By pt. the terms of Art. Constitution, empowered legislature to direct the mannеr in which suits TEMPE, INC., ARIZONA MALL OF *3 however, brought against such Corporation; Reppel Steel & Minnesota State, In power is not unbridled. Shaw Company, Corpora- Supply an Arizona 447, 450, Ariz.App. tion, Appellees. this court said: No. The set limitations state bringing method and manner of suit Appeals Court of of long as against the state as such methods are do not violate reasonable and rights.... constitutional (Emphasis supplied) July The bond of A.R.S. 12-823 Sept. Rehearing Denied is monetary blockade access Sept. Review Denied courts and is therefore violative of constitu- rights. Having tional so it is unnec- found
essary arguments to address the other of
counsel. dismissing decision the trial court is reversed and proceed- case is
this remanded for further
ings opinion. not inconsistent with this J.,
CONTRERAS, concurs.
WREN, Presiding Judge, dissenting. clearly my opinion
In Eastin distin-
guishable present controversy, from the
since there ais substantial distinction be-
tween non-waivable cost bond medical
malpractice litigation only which involves public
private parties a suit
entity such as the Board necessity involves public funds. seq. 12-821 et A.R.S. designed et seq. legis- were protect
lature costs expenses defending unfounded and plaintiff.
baseless claims an insolvent California, 172
Vinnicombe v. State of Cal.
App.2d (1959). They
should not be disturbed Court.
I would affirm.