Comment on Petition R-13-0044 on Amending Rule 67 (Cost Bond Rule)
Commenter David L. Abney
State Bar No. 009001
Knapp & Roberts, P.C.
8777 North Gainey Center Drive, Suite 165
Scottsdale, Arizona 85258, (480) 991-7677
[email protected] Justices of the Arizona Supreme Court:
It is time for Arizona to jettison the cost-bond rules. They are a surviving relic of a statute that the Arizona Territorial Legislature enacted in 1901 to make it hard for non-residents and poor people to sue prosperous, propertied Arizona residents. See Rev. Stat. Ariz. Terr. § 1551 (1901). The scheme of the original statute was simple: If you were a foreigner or did not own enough of the right kind of property, you had to post a bond. If you did not, your case was over.
By the time the cost-bond requirement moved from the statute books into the civil-procedure rules, it dropped the explicit discrimination against foreigners and slightly eased the discrimination against the poor. See Rev. Stat. Ariz., Civil Code §§ 643, 645 (1913); Rev. Code Ariz. §§ 3790, 3791 (1928); Ariz. Code §§ 21-601 and 21-602 (1939). See also Union Interchange, Inc. v. Benton, 100 Ariz. 33, 36, 410 P.2d 477, 479 (1966) (cost-bond rules’ history).
But unconscionable discrimination remains in Rules 67(d) and 67(e). The cost-bond rules create—and treat differently—three classes. The first class consists of those who can provide “strict proof” of their inability to post a bond. They need post none. The second class consists of those who lack enough of the right sort of property, but who can post a bond. They must post a bond or have their cases dismissed. The third class consists of those who have the right sort of property. They need post nothing.
In operation, the cost-bond rules attack the middle class. For instance, suppose a defendant in a medical-malpractice case demanded—and the trial court ordered—a $25,000 cost bond. With difficulty, a plaintiff lacking enough of the right sort of property might be able to post $25,000, although it would be hard. But no one should have to pay that much money—or more—just to sue. Court filing fees are already at historic highs. But at least everyone pays the same. The cost-bond rules, however, keep property-poor but non-indigent plaintiffs out of the courthouse while property-rich or indigent plaintiffs walk right in.
The cost-bond rules are unconstitutional because they violate or infringe on at least five constitutional rights: (1) Ariz. Const. art 18, § 6 (“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”); (2) Ariz. Const. art. 2, § 13 (“No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”); (3) U.S. Const. amend. 14, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”); (4) Ariz. Const. art. 2 § 4 (“No person shall be deprived of life, liberty, or property without due process of law.”); and (5) U.S. Const. amend. 14, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”).
Rules 67(d) and (e) (1) place a heavier burden on a plaintiff of modest financial means than on an indigent plaintiff; (2) place a heavier burden on a plaintiff of modest means who does not own the “right” kind of property than the burden placed on a plaintiff who is fortunate enough to own the “right” kind of property; (3) force indigent plaintiffs to the cost, trouble, and embarrassment of proving indigence; (4) force other plaintiffs to prove that they have the right kind of property; and (5) force other plaintiffs to undergo the cost and trouble of posting cost bonds that indigent and property-rich plaintiffs need not post.
Our citizens have the fundamental right of access to the courts. Lewis v. Casey, 518 U.S. 343 (1996). The Arizona Supreme Court has held that our state constitution requires “equal access to justice regardless of the plaintiff’s financial status.” Arnold v. Arizona Dept. of Health Services, 160 Ariz. 593, 607, 775 P.2d 521, 535 (1989). The U.S. Supreme Court has also long required equal treatment: “No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
Under the Arizona Constitution, the “right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” Ariz. Const. art. 18, § 6. That unique constitutional clause creates a “fundamental right” to pursue a judicial-damages action to seek an award of damages for tortious injury. Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984). The clause also “protects the right of access to the courts.” State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 228 ¶ 32, 172 P.3d 410, 416 ¶ 32 (2007).
Cost-bond rules that let an indigent or well-off person pursue a tort lawsuit (even if feeble), but burden and restrict the ability of a person of modest means to prosecute a tort lawsuit (even if compelling), unfairly and unconstitutionally burden the right to seek tort damages and the right of access to justice and to the courts.
The cost-bond rules thus also violate our state constitution’s privileges-and-immunities (equal-protection) clause, which states: “No law shall be enacted granting to any citizen [or] class of citizens . . . privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Ariz. Const. art. 2, § 13.
The Arizona Supreme Court has relied on that clause to invalidate a law that—like Rule 67(d)—placed a heavier burden on a non-indigent tort plaintiff's right of access to the courts than the burden placed on an indigent tort plaintiff. In the 1977 Eastin v. Broomfield opinion, this Court struck down as unconstitutional a statute requiring non-indigent medical-malpractice plaintiffs who wanted to pursue a claim that a medical-malpractice review panel had rejected to post a $2,000 cash bond or its equivalent with the clerk of court—when the cash bond could be reduced for an indigent. Eastin v. Broomfield, 116 Ariz. 576, 585-86, 570 P.2d 744, 753-54 (1977).
Much like Rule 67, the statute in Eastin provided: “If such bond is not posted before the plaintiff proceeds further in the action, the action shall be dismissed.” A.R.S. § 12-567(I).
Eastin held the statute violated the state constitution, explaining that: “As to the indigent, the statute violates the Arizona constitutional privileges and immunities clause, Art. II, § 13, by denying access to the courts. As to the non-indigent, it places a heavier burden upon his access to the court and therefore violates the same clause of the Arizona Constitution. Eastin, 116 Ariz. at 586, 570 P.2d at 754 (emphasis added).
Likewise, in New v. ABOR, 127 Ariz. 68, 618 P.2d 238 (App. 1980), a law required a $500 cost bond before a plaintiff could file a breach-of-contract or negligence claim against the State was unconstitutional under Arizona’s equal privileges and immunities clause.
Rules 67(d) and (e) place a heavier burden on a non-indigent tort plaintiff than on a similarly situated indigent tort plaintiff. The cost-bond rules thus violate the Arizona privileges-and-immunities clause and the federal constitution’s equal-protection clause. Indeed, the cost-bond rules only work against plaintiffs and only work for defendants. The rules thus doubly impose unequal treatment, first among plaintiffs, and then between plaintiffs and defendants. “There can be no equal justice when the right to file suit depends on one’s ability to pay.” Psychiatric Association v. Siegel, 610 So.2d 419, 426 (Fla. 1992).
Finally, the cost-bond scheme is unconstitutional because it violates the right of access to the courts fundamental to due process of law under the state and federal constitutions. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982).
The longevity of a law does not canonize it, or such evil doctrines such as “separate and equal” would still plague us. This Court has held that when the reason for a rule no longer exists, the rule should be abandoned. Stone v. Arizona Highway Commission, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963). Thus, while we honor the best parts of our heritage, “we are not prisoners of the past.” Wiley v. Industrial Commission, 174 Ariz. 84, 93, 847 P.2d 595, 604 (1993).
There must be equal access to justice for all, not just for the indigent and the highly prosperous. The cost-bond rules undermine and defeat that principle. They unconstitutionally and unfairly discriminated in 1901 and—although they are now more sophisticated—they still unconstitutionally and unfairly discriminate. They have no place in a judicial system dedicated to equal access to justice for all. This Court should eliminate them from our judicial system once and for all.