Caruso v. Superior Court In and For Pima County

• Decision Date: 23 March 1966
• Docket Number: No. 8699--PR,8699--PR
• Citation: 100 Ariz. 167,412 P.2d 463
• Parties: Frank C. CARUSO, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Father Ryle and the Catholic Social Service, Tucson, Arizona, Respondents.
• Court: Arizona Supreme Court

Page 463

412 P.2d 463

100 Ariz. 167

Frank C. CARUSO, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Father Ryle and the Catholic Social Service, Tucson, Arizona, Respondents.

No. 8699--PR.

Supreme Court of Arizona, In Banc.

March 23, 1966.

Healy, Laubscher & Dickerson, by F. Dale Healy, Tucson, for petitioner.

Darrell F. Smith, Atty. Gen., by Philip M. Haggerty, Asst. Atty. Gen., for respondents State of Arizona and County of Pima.

Murphy & Vinson, by John U. Vinson, Tucson, for respondent The Catholic Social Service.

BERNSTEIN, Vice Chief Justice.

Pursuant to 17 A.R.S. Rule 47(b), Rules of the Supreme Court and A.R.S. § 12-- 120.24, we granted a petition to review the decision of the Court of Appeals reported in 2 Ariz.App. 134, 406 P.2d 852, which quashed an alternative writ and denied a permanent writ of prohibition.

Petitioner sought a writ of prohibition to restrain the Juvenile Court of Pima County from taking any further action in a proceeding pending before it. The uncontested facts are as follows: An infant was born out of wedlock during May, 1965. The mother relinquished the child for adoption to The Catholic Social Service pursuant to A.R.S. § 8--512, subsec. B. Petitioner is the natural father of the child and filed a certificate of parental acknowledgment as provided in A.R.S. § 8--103, subsec. A, par. 1(b).

When The Catholic Social Service learned that petitioner wanted custody of the infant, it filed a petition with the Juvenile Court alleging that the child was dependent and praying the court take jurisdiction to provide for the child's care and custody. The Juvenile Court conducted a hearing, found that the infant was dependent and determined that a further hearing would be held to decide whether petitioner's parental rights should be severed so that the child might be placed for adoption. The writ of prohibition is sought to prevent the future hearing.

There has been some confusion expressed over the scope of writs of prohibition. Lesher, Extraordinary Writs in the Appellate Courts of Arizona, 7 Ariz.L.R. 34. Our most recent pronouncement was in Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 where we said a writ of prohibition is proper to prevent an inferior tribunal from acting without or in excess of its jurisdiction which may result in wrong, damage and injustice and there is no plain, speedy and adequate remedy otherwise available.

The first question is the meaning of the phrase 'acting without or in excess of jurisdiction'. To decide whether a lower tribunal has acted without jurisdiction, we examine the external validity of the proceeding. Griffin v. Denton, 61 Ariz. 454, 150 P.2d 97. This means we are interested in whether the court had jurisdiction over the subject matter, the persons and to render the particular judgment given. Sil-Flo Corporation v. Bowen, 98 Ariz. 77, 402 P.2d 22. In other words, did the court have power to hear and determine the case, rightly or wrongly. Tube City Mining and Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203. If it is shown in the preliminary stages of litigation that the lower court is without jurisdiction to proceed, this court will prevent the needless waste of time and money by issuing the writ. Loftus v. Russell, 69 Ariz. 245, 212 P.2d 91; S. H. Kress & Co. v. Superior Court, 66 Ariz. 67, 182 P.2d 931. In Abbott v. Superior Court, 86 Ariz. 309, 345 P.2d 776 this court said:

"The only other question is: Would petitioner have a plain, speedy, and adequate remedy in the ordinary course of law? If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state-prison, he could have the illegal proceeding reversed on appeal. * * *" 86 Ariz. at p. 311, 345 P.2d at p. 777.

A writ of prohibition may also be appropriate if the lower court acted in excess of its jurisdiction. This is different than the question of acting without jurisdiction and suggests that the lower court had jurisdiction but exercised it erroneously. This court impliedly recognized the suggested conclusion long ago in Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576 where we approved language:

"That a writ of prohibition may not Ordinarily be used as a process for the review and correction of errors committed by inferior tribunals." 24 Ariz. at p. 519, 211 P. at p. 580 (Emphasis added)

To decide whether a lower tribunal has acted in excess of its jurisdiction, we examine the internal validity of the proceeding. Acts in excess of jurisdiction include acts exceeding the power of the court as defined by constitution, statute or court rules followed under the doctrine of stare decisis, Abelleira v. District Court, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715 approved in Duncan v. Truman, 74 Ariz. 328, 248 P.2d 879, and acts where the lower tribunal has abused its discretion. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1; State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 390 P.2d 109.

The second question we must consider in determining whether a writ of prohibition should properly issue is the meaning of the phrase 'there is no plain, speedy and adequate remedy otherwise available.' This court has said:

'It is not enough that there existed, or may have existed, a concurrent remedy open to appellant, unless it was Equally as plain, speedy, and adequate as the remedy by prohibition.' Johnson v. Betts, 21 Ariz. 365, 371--372, 188 P. 271, 274. (Emphasis added)

Other available remedies must be compared to a remedy by prohibition in each case. A writ of prohibition is appropriate if the other remedies are not equally plain, speedy and adequate. Of course, there is expense and delay in being put to a trial and then an appeal. But these facts alone will not justify issuing the writ. Walker v. District Court, 4 Ariz. 249, 35 P. 982; Emery v. Superior Court, 89 Ariz. 246, 360 P.2d 1025.

The third question is whether there is a right to the writ where the lower tribunal is about to act without or in excess of its jurisdiction and there are no plain, speedy and adequate remedies otherwise available. In one of Arizona's earliest reported cases dealing with a writ of prohibition, this court stated that if the lower court clearly had no jurisdiction of the cause originally and the objecting party had no other remedy he was entitled to a writ of prohibition as a matter of right. Crowned King Mining Co. v. District Court, 7 Ariz. 263, 64 P. 439. See also Redewill v. Superior Court, 43 Ariz. 68, 29 P.2d 475.

The fourth and most difficult question deals with the situation where the lower court is about to act without or in excess of its jurisdiction, but the petitioner has another plain, speedy and adequate remedy available to him. The matter has always been within the sound discretion of the court. Crowned King Mining Co. v. District Court, supra. In our recent decision of Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 we cited with approval City of Phoenix v. Rodgers, 44 Ariz. 40, 34 P.2d 385 where the court said of the writ of prohibition:

'It is an extraordinary remedy granted usually only in cases of necessity, and is ordinarily a matter of sound discretion, to be granted or withheld by the court according to the nature and circumstances of the case, particularly when there is another remedy. * * * It may, however, be granted notwithstanding the existence of another adequate remedy, for it is a remedy within the sound discretion of the court to which application is made.' 44 Ariz. at pp. 45--46, 34 P.2d at p. 387.

It is clear that the propriety of granting the writ depends upon the facts of each case. The guiding principle must be our obligation to see that essential justice is done.

The next problem deals with our scope of review. In reviewing a grant of the writ of prohibition by a lower court, the Supreme Court 'will not consider whether as an original proposition it would have granted such a writ but restricts its review to whether the lower court abused its discretion.' State Board of Technical Registration v. McDaniel, 84 Ariz. 223, 326 P.2d 348; Arizona...