Friday, July 27, 2001
Ninth Circuit Upholds Arizona Law, Court Rule That Compel Lawyers to Do Low-Paid Arbitration Duty
By ROBERT GREENE, Staff Writer
Lawyers may be drafted to serve as arbitrators with little or no pay under an Arizona rule upheld yesterday by the Ninth U.S. Circuit Court of Appeals.
The state law and the Maricopa County Superior Court rule requiring all local members of the state bar to be placed on the list of arbitrators was not a violation of the Fourteenth Amendment’s Equal Protection Clause or a taking of a lawyer’s property without just compensation, Judge Michael Daly Hawkins wrote.
Instead, he said, it was a reasonable requirement imposed as a condition of membership in the state’s bar.
Just as lawyers who are appointed to represent indigents in criminal cases have not suffered a taking, Hawkins said, lawyers who enter the profession are deemed to be aware of the profession’s traditions, including serving when called upon on an unpaid case.
“Although we have not previously addressed a state’s regulation of attorneys outside the context of indigent criminal defense, our prior decisions stand for the proposition that a state can impose reasonable conditions and duties on attorneys who are granted the privilege of appearing before that state’s court’s,” the judge said. “If a condition of practice is reasonable, there is no taking of property.”
Hawkins agreed with the District Court that Arizona’s arbitration requirements are de minimis. Only attorneys who work in the county are affected, and only those with five years or more of experience. They need not serve more than two days a year.
The judge said any out-of-pocket expenses likely would be minimal.
Lawyers who are selected are paid $75 a day.
In Maricopa County, Arizona’s most populous county and the location of the capital city of Phoenix, cases involving less than $50,000 are subject to mandatory arbitration. If the parties do not stipulate to a particular arbitrator, the court selects one from the list of eligible lawyers.
In addition to the “drafted” lawyers, the list includes attorneys from outside the county and retired lawyers who have offered to arbitrate. The clerk of the Superior Court selects lawyers by simply going to the next name on the list.
The ruling was sparked by attorney Mark V. Scheehle’s call for arbitration duty. Scheehle was picked from the list and he declined and was fined $900. He sued in district court, alleging violations of the Thirteenth Amendment guarantee against involuntary servitude, as well as other federal civil rights claims.
Summary judgment was granted to the court, and Scheehle appealed as to the takings issue and equal protection.
But the Ninth Circuit said District Judge Stephen M. McNamee of the District of Arizona was correct to reject the lawyer’s complaints.
Hawkins was joined by Judges Harry Pregerson and Warren J. Ferguson.
The case is Scheehle v. Arizona Supreme Court, 00-15457.
Copyright 2001, Metropolitan News Company