Dioguardi v. Superior Court , 184 Ariz. 414 ( 1996 )

GARBARINO, Judge,

dissenting.

I respectfully disagree with my colleagues. The legislature has established by A.R.S. § 41-1062(B) that, except for good cause, it is mandatory for the agency to provide an opportunity for a rehearing or review of its decision before such decision becomes final. The statute further provides:

Such rehearing or review shall be governed, by agency rule drawn as closely as practicable from rule 59, Arizona rules of civil procedure, relating to new trial in superior court.

AR.S. § 41-1062(B) (emphasis added). The legislature did not mandate adoption of Rule 59 but merely indicated that the agency rule shall be “drawn as closely as practicable from rule 59.”

The majority disregards the legislative authority granted BOMEX and seeks to impose its own legislative will. If the legislature wanted BOMEX to provide a rehearing process identical to that set out in Rule 59, it would have so stated.

It is true that there are times when the courts are empowered to establish procedural rules for the conduct of a proceeding and the participants. This is not one of those instances. The legislature has plainly indicated that the procedure “shall be governed by agency rule.”

I would decline to accept jurisdiction.