Metropolitan News-Enterprise


Friday, November 16, 2007


Page 1


Court Upholds Mandate for Arbitrator Service by Lawyers


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday rejected an Arizona attorney’s argument that a state statute subjecting him to compulsory service as an arbitrator for minimal compensation was an unconstitutional taking under the Fifth Amendment.

Affirming the decision of U.S. District Judge Stephen M. McNamee of the District of Arizona, the court held that the statute’s requirement that attorneys serve as arbitrators up to two days per year for a flat fee of $75 per hearing did not amount to a taking for which Mark V. Scheehle was entitled to compensation, because the requirement had a negligible economic impact on Scheelhe and did not interfere with his work.

Scheelhe, a tax attorney, challenged the authority of the Arizona courts to require that he serve as an arbitrator after he was appointed to do so three times in 1997.  Arizona law requires that each superior court provide for the arbitration of cases in which the amount in controversy does not exceed $65,000.

He contended that the requirement was unconstitutional, but the presiding arbitration judge disagreed and imposed a $900 fine for refusing the appointment.  Scheelhe then petitioned the Arizona Supreme Court for special action, and when the justices declined to exercise jurisdiction he filed a pro se complaint in the district court naming them as defendants.

On appeal from the district court’s grant of summary judgment in favor of the justices, Judge Consuelo M. Callahan rejected Scheelhe’s contention that the court should consider the requirement a per se taking, reasoning that it neither permanently physically invaded Scheelhe’s license to practice law, nor deprived Scheelhe of all economically beneficial use of the license. 

Instead, Callahan wrote, the court was required to consider the case under the generally applicable regulatory takings test set forth by the U.S. Supreme Court in Penn Central Transportation Company v. City of New York (1978) 438 U.S. 104.  Applying this standard, she said the requirement could not be considered a taking because it did not outweigh the benefits that the state conferred on Scheelhe when it granted him a license to practice law.

 “[I]n accepting admission to the Arizona Bar, and in practicing before the Maricopa Superior Court,” Callahan wrote, “Scheehle voluntarily became an officer of the court with the concomitant obligation to render service to the court when requested.”

Callahan also noted that the cost to an attorney of representing an indigent criminal defendant, which the Ninth Circuit previously held did not necessarily constitute a taking, usually exceeded the cost of serving as an arbitrator for two days a year.

Andrea M. Esquer, spokeswoman for the Arizona attorney general, told the MetNews that her office was pleased with the decision, calling it “a good win for us.”

Scheelhe did not return a call seeking comment.

Callahan was joined in her opinion by Judge Jane R. Roth of the Third U.S. Circuit Court of Appeals, sitting by designation, and Judge Sidney R. Thomas,

The case is Scheehle v. Justices of the Supreme Court of Arizona, No. 05-17063.


Copyright 2007, Metropolitan News Company