ARIZONA COURT OF APPEALS, THE

Justice System Journal, 2005 by Lankford, Jefferson

State courts participate in the "laboratory of federalism" just as other state institutions do. Although they share many common traits, state courts also differ in some important ways, notably, procedure and jurisdiction.

The Arizona Court of Appeals, on which I sit, is in many respects typical of an intermediate appellate court. As usual, most of its jurisdiction is mandatory, so the court cannot choose its cases for review as does the Arizona Supreme Court. Its jurisdiction broadly encompasses nearly all civil and criminal cases, unlike the situation in the few states that divide appellate jurisdiction between civil and criminal courts. In other ways, however, the court differs dramatically from most others. Perhaps the most notable difference is the role of professional staff. The court employs staff attorneys and judicial law clerks, as do other courts, but distinguishes itself in how it uses staff.

Rare is the appellate court, for example, in which both staff attorneys and law clerks are present when the judges confer before and after oral argument.1 However, in the Arizona Court of Appeals, staff are not only present, but also have an active role. Staff orally summarize the appeal and act as resource persons in the ensuing discussion, providing a detailed knowledge of the trial court record and of case law. These oral presentations are responsibilities correlative to drafting proposed written decisions. Staff attorneys prepare such discussion drafts in about one-third of the cases and circulate them to the judges before the conference; law clerks, supervised by their judges, do so in the remainder. These drafts substitute for bench memoranda, which are rarely used.

Despite the important role of staff, it is a supporting one. The judges dominate the discussion in conferences and are very active in oral argument.2 Judges do not hesitate to depart from the reasoning or result in a staff draft when preparing a final decision.

The preargument draft decisions are used somewhat differently in division one of the court (Phoenix, sixteen judges) from the way they are used in division two (Tucson, six judges). In the latter, the court distributes the proposed decision to counsel before oral argument. The advantage is believed to be that counsel's knowledge of a tentative decision enhances the argument. Division one does not circulate the draft because it does not reflect the tentative position of the court and reveals only the thoughts of one staff attorney or one judge and his or her law clerk.

Division one utilizes staff attorneys differently from most other appellate courts. A typical pattern is that the staff works on motions, Anders criminal appeals,3 the easiest appeals, and highly specialized or complex appeals, and often continue in postargument work with the authoring judge in preparing a final decision. Contrary to this archetype, division one employs staff to work on the middle-difficulty appeals and some specialized appeals, and uses the staff only through the conferences. Staff support motions work only when the motion is filed before the assignment of a case to a particular panel of three judges, an event occurring shortly after the last brief is filed. After assignment, the panel is responsible for all motions. Nor do staff work on Anders appeals. Thus, judges retain sole responsibility for finalizing all written decisions and bear the burden of the most complex cases.

Another distinction is the court's exercise of its extraordinary writ jurisdiction. Formerly denominated as writs of certiorari or mandamus, our writs are now combined in a single form of action, the "special action."4 Special actions are one of only two types of cases in which the court of appeals has discretionary jurisdiction. Arizona courts at times have treated special actions as if they were interlocutory appeals. That practice contrasts with the extraordinary nature of the procedure and arguably conflicts with the prerequisite that alternative remedies be inadequate. Partly at the insistence of the supreme court, the Arizona Court of Appeals has curbed its appetite for interlocutory appeals masquerading as special actions; this has resulted in fewer petitions for such relief, and the ones filed are more appropriate.

The court of appeals sits in panels of three, which is ordinary enough. However, quarterly membership changes at random ensure that neither boredom nor complacency creeps in. Unlike many intermediate appellate courts, the Arizona Court of Appeals is forbidden by statute from sitting en banc. The absence of en banc procedure led the court to monitor published dispositions for conflicts between proposed opinions. The selected method is a prepublication distribution of draft opinions by the authoring judge to the full court. Although intended to reveal conflicts, this process evolved into something even more valuable: an opportunity for an author to receive helpful comments from the full court. Authors often fine-tune or even extensively rewrite opinions after receiving suggestions from colleagues.