Written By: Lori Voepel

One question we are often asked is whether a particular state court order should be challenged through a petition for special action in the Arizona Court of Appeals. The appellate court has discretion whether to accept jurisdiction and consider a special action on the merits, so it is important to make sure that your particular case is appropriate for seeking special action review.

Whether and when to file a petition for special action depends on a number of factors, including the procedural posture of the case, the type of motion ruled upon by the trial court, and the subject matter of the ruling at issue.

According to Rule 1 of the Rules of Procedure for Special Actions, special action relief is not available where there is an equally plain, speedy and adequate remedy by appeal. What this means is that special action jurisdiction exists only if the relief being sought is not reasonably available through a direct appeal following final judgment in a case.

Pursuant to Special Action Rule 3, the only questions that can be raised in a special action are: (a) whether the court (or other official) has failed to exercise discretion which he has a duty to exercise, or to perform a duty required by law as to which he has no discretion; (b) whether the court (or official) has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or (c) whether a determination was arbitrary and capricious or an abuse of discretion.

Here are some general guidelines for determining when the court of appeals is or is not likely to accept special action jurisdiction, though keep in mind that each case is unique:

More likely to accept jurisdiction:

  • Immunity issues
  • Privilege issues
  • Notice of Claim/Statute of Limitations issues
  • Denial of protective orders or other injunctive relief (where potential for irreparable harm is imminent)
  • Interpretation/application of a new statute
  • Purely legal questions (especially involving important issues of first impression)

Less likely (or unlikely) to accept jurisdiction:

  • Denial of Summary Judgment (unless involves legal issue of first impression or other issue listed above)
  • Discovery disputes
  • Evidentiary issues

These are not hard and fast “rules,” and the list is not exhaustive. These are merely general guidelines to give you some sense of whether your particular issue or dispute may (or may not) be appropriate for a special action.

There are also many other considerations, such as whether the client will be better or worse off by taking the special action, the cost, and the risk of creating bad law. Our JSH appel­late team can help you assess whether it would be in a client’s best interest to proceed with seeking special action relief in a particular case. If filing a petition for special action is appropri­ate, we have experience handling special action proceedings for you.