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St. Joseph ''S Hospital and Medical Center v. Superior Court of Arizona3/13/1990
anguage demanded by A.R.S. § 1-244. Cheney, 144 Ariz. at 449, 698 P.2d at 694. We do not believe there is room for qualification. The term "express language" in the context of A.R.S. § 1-244
means language contained in the statute and not inferences drawn from legislative histories.
As we hold that H.B. 2123 does not retroactively repeal A.R.S. § 12-567, we now address whether the statute is substantive or somehow affects substantive rights.
Arizona has established and perpetuated an exception to the general rule requiring specificity in the legislation for a law to be applied retroactively. "Under the exception a statute does have retroactive effect if it is merely procedural and does not affect an earlier established substantive right." Bouldin, 125 Ariz. at 78, 607 P.2d at 955. Whether the right to a review panel involves a procedural or substantive right has been decided by our supreme court. "The provision in section 567(A) that creates a right to a review panel is substantive." Daou, 139 Ariz. at 358, 678 P.2d at 939. This court, citing Daou, also held that the right to a review panel is substantive and not procedural. Gurr v. Willcutt, 146 Ariz. 575, 580, 707 P.2d 979, 984 (App.1985).
Respondents' attempts to distinguish Daou and Gurr fail. Respondents argue that because petitioners' rights have not vested, retroactive repeal is appropriate. For this proposition, respondents cite Hall v. A.N.R. Freight System, 149 Ariz. 130, 717 P.2d 434 (1986) (discussing constitutional issues arising when the legislature expressly provides for retroactive application), and Brown Wholesale Elec. Co. v. H.S. Lastar Co., 152 Ariz. 90, 730 P.2d 267 (1986) (discussing the vesting of rights qualified by contingencies). Neither case relates to the issue of whether the court may retroactively apply statutes when the legislature has declined to do so. In any event, we conclude that the substantive right to a review panel vested with the filing of the action. Former A.R.S. § 12-567(A), in pertinent part provides " pon the filing of a complaint . . . the matter shall be referred to a . . . review panel . . . ." When a lawsuit is commenced the defendant gains an immediate fixed ability to assert any substantive right, and such rights may not thereafter be prejudiced by the state. Hall, 149 Ariz. at 140, 717 P.2d at 444.
Conclusion
The legislature did not expressly provide that the repeal of A.R.S. § 12-567 was retroactive. As the right to a review panel involves a vested substantive right and is not merely procedural, retroactivity may not be provided by the court. Accordingly, the prior order of the court filed December, 15, 1989 is affirmed. The prior order of the trial court denying a review panel is quashed and the matter is remanded for proceedings compatible with this decision.
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