Peterson v. Acc

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JEFFREY SCOTT PETERSON, Plaintiff/Appellant,

v.

ARIZONA CORPORATION COMMISSION, et al., Defendants/Appellees.

No. 1 CA-CV 23-0253
FILED 3-19-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-011823
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Carmen Chenal Horne Law Firm PLLC, Phoenix
By Carmen Chenal Horne
Counsel for Plaintiff/Appellant

Jeffrey S. Peterson, Mississauga, ON L5B 0C6 Canada
Plaintiff/Appellant

Arizona Corporation Commission, Phoenix
By Elizabeth M. Schmitt
Counsel for Defendants/Appellees
 PETERSON v. ACC, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 This is an appeal from the superior court’s order declining
special action jurisdiction. Finding no abuse of discretion, we affirm.

BACKGROUND

¶2 The Arizona Corporation Commission initiated an internal
administrative action against Jeffrey Scott Peterson and others for violating
the Arizona Securities Act, A.R.S. § 44-1801 et seq., seeking penalties and
other relief. Peterson unsuccessfully moved for dismissal and for summary
judgment before the administrative law judge (ALJ).

¶3 Peterson then filed a special action complaint in the superior
court, arguing that the Commission lacked personal jurisdiction and that
he was exempt from liability under A.R.S. § 44-1844(A)(1) because the
relevant transactions did not involve a public offering. The Commission
asked the court to decline special action jurisdiction or, alternatively, deny
relief. After considering briefing and oral argument, the court declined
jurisdiction and did not address the merits. The court explained that
Peterson sought relief from an interlocutory order, and that he would have
an opportunity to defend himself in the administrative proceedings and
appeal if dissatisfied with the outcome.

¶4 Peterson timely appealed the order declining jurisdiction.

DISCUSSION

¶5 Where, as here, the superior court disposes of a special action
solely by declining jurisdiction, our review is confined to that jurisdictional
determination. See State v. Johnson, 184 Ariz. 521, 523 (App. 1994). We do
not consider Peterson’s arguments concerning the merits of his special
action.

¶6 We review the superior court’s decision whether to exercise
special action jurisdiction for abuse of discretion. Id. “Acceptance of special

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 PETERSON v. ACC, et al.
Decision of the Court

action jurisdiction is highly discretionary.” State ex rel. Romley v. Fields, 201
Ariz. 321, 323, ¶ 4 (App. 2001). Special action jurisdiction is inappropriate,
except as statutorily authorized, “where there is an equally plain, speedy,
and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1(a). Special action
jurisdiction is not favored to review an interlocutory order on an
incomplete record. Piner v. Superior Court (Jones), 192 Ariz. 182, 184, ¶ 8
(1998).

¶7 Here, the superior court acted well within its discretion by
declining jurisdiction over Peterson’s special action from the ALJ’s
interlocutory order denying his motions to dismiss and for summary
judgment. The court reasonably concluded that Peterson has an equally
plain, speedy, and adequate remedy via the normal procedures. Peterson
may present evidence and argument at a hearing before the Commission.
See A.A.C. R14-3-101(A), -104(A), -109(G). And after the hearing, if he does
not prevail, he may file exceptions to the Commission’s proposed order and
appeal its final order. See A.A.C. R14-3-110(B) (parties may file exceptions
once Commission issues proposed order); A.R.S. § 44-1981 (Commission’s
decision may be reviewed by superior court); A.R.S. § 12-913 (superior
court’s decision may be reviewed by supreme court).

¶8 We are unpersuaded by Peterson’s argument that special
action jurisdiction was required because the administrative proceedings
will be costly and prolonged. Such factors alone do not compel the exercise
of special action jurisdiction. Caruso v. Superior Court (Ryle), 100 Ariz. 167,
171 (1966). Similarly, we are unpersuaded by Peterson’s argument that
special action jurisdiction was required because the statutory exemption he
advanced presented a novel legal issue. Caselaw has discussed A.R.S.
§ 44-1844(A)(1)’s exemption, and it is a fact-dependent inquiry unique to
each situation. See Wales v. Ariz. Corp. Comm’n, 249 Ariz. 263, 2760–71,
¶¶ 29–35 (App. 2020).

¶9 We also reject Peterson’s argument that he was entitled to
special action review because an ALJ cannot constitutionally adjudicate the
matter. Peterson relies on Jarkesy v. Securities & Exchange Commission, in
which a federal court held that defendants in a federal securities fraud
enforcement action for penalties were entitled to a jury trial. 34 F.4th 446,
450, 454, 465 (5th Cir. 2022), cert. granted, 143 S.Ct. 2688 (2023). But Peterson
raised no constitutional challenge until this appeal (even though Jarkesy
predated his special action complaint), and we find no compelling reason
to address that challenge now. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490,
503 (1987) (recognizing “issues of ‘general statewide significance’ are an

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 PETERSON v. ACC, et al.
Decision of the Court

exception to the general rule that an appellate court will not consider issues
not raised in the trial court”).

¶10 Jarkesy is currently under review by the United States
Supreme Court, see 143 S.Ct. 2688, and construes federal law in view of the
Seventh Amendment right to a jury trial. See 34 F.4th at 450, 454, 465.
Accordingly, Jarkesy will not be binding for the interpretation of Arizona
administrative procedures. See Wales, 249 Ariz. at 270, ¶ 30 (recognizing
that settled federal securities law is persuasive for interpreting state
securities law with substantially similar provisions); Fisher v. Edgerton, 236
Ariz. 71, 81, ¶¶ 32–33 (App. 2014) (recognizing that Seventh Amendment
does not apply to the states and that Seventh Amendment caselaw is
persuasive regarding the construction of the state constitutional jury trial
right). Further, the superior court’s decision to decline special action
jurisdiction does not preclude Peterson from raising constitutional
arguments in the pending proceedings. See Bilagody v. Thorneycroft, 125
Ariz. 88, 92–93 (App. 1979) (affirming superior court’s decision declining
special action jurisdiction where appellant could challenge constitutionality
of transportation department’s hearing procedures in an appeal from his
license suspension). Peterson has not shown that the superior court abused
its discretion by declining special action jurisdiction.

CONCLUSION

¶11 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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