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Pompa v. Superior Court1/30/1997
cedural rules promulgated by the supreme court, specifically, Rules 8(d) and 15(b).
Rule 8(d) places responsibility on the clerk of the superior court to serve notice of appeal on "all other parties." Rule 15(b) provides that two copies of each appellate brief are to be served on each party and that the appellant must serve the attorney general's office when the state, county, or state officer is the appellee. Failure to comply does not strip this court of jurisdiction; rather, it may be grounds for "such action as the appellate court deems appropriate, [including] dismissal of the appeal." Rule 8(a); Rule 15(c).
We recognize that the attorney general has an interest in receiving notice and reviewing documents filed under A.R.S. sections 13-2301 through 13-2317, the organized crime and fraud statutes. This appears to be the only interest served by the statute's jurisdictional provision. However, automatic removal of jurisdiction conflicts with the court's legislatively granted power to hear appeals from final judgments entered in superior court and the court's constitutionally granted power to enact rules governing the practice and methods for processing such appeals. See Ariz. Const. art. 6, § 5(5); A.R.S. §§ 12-2101 and 12-120.21; State ex rel. Conway, 60 Ariz. at 81, 131 P.2d at 988.
The court-made rules of appellate procedure already permit the court to impose sanctions for failure to serve proper notice on the necessary parties. Rule 8(a); Rule 15(c). The mandate in A.R.S. section 13-2314(M) requiring automatic divestment of jurisdiction conflicts with those rules. Therefore, we hold that the jurisdictional provision of section 13-2314(M) must yield to Rules 8 and 15 under article 6, section 5 of our state constitution.
C. The Trial Court's Jurisdiction
Pompa's special action argues that the trial court lacked jurisdiction because Encinas failed to comply with A.R.S. section 13-2314.04(H). Because of our ruling denying Encinas's motion to dismiss the appeal, we need not discuss this issue; it may be considered in full on appeal. "Special action is not available where there is an equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1[(a)]." Harris Trust Bank, 224 Ariz. Adv. Rep. at 78. Moreover, section 13-2314.04(H) differs slightly from A.R.S. section 13-2314(M). For example, it provides for a time period within which a RICO complaint must be filed with the attorney general's office. The briefs indicate that the issue remains the subject of unresolved disputes of fact and law. Therefore, we deny Pompa's requested special action relief.
Conclusion
The statutory provision of A.R.S. section 13-2314(M) divesting this court of jurisdiction for appellant's failure to serve the attorney general's office conflicts with court-promulgated procedural rules and is therefore unconstitutional. Accordingly, we deny Encinas's motion to dismiss Pompa's appeal. We also deny the special action relief sought by Pompa, who has an adequate remedy by appeal.
MICHAEL D. RYAN, Judge
Concurring
E.G. NOYES, JR., Presiding Judge
NOEL FIDEL, Judge
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