Appealing an Arizona Corporation Commission Securities Division Order


Appealing an Arizona Corporation Commission Securities Division Order

Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.
The respondent who is the subject of an adverse decision of the Arizona Corporation Commission (“ACC”) in a securities matter may file an application for rehearing within twenty (20) calendar days after entry of the ACC’s decision or order. A.R.S. §§ 44-1974, 44-3214. But see A.A.C. R14-3-112(A) (“Except as provided in subsection (G), any party in a contested case before the Commission arising out of Title 10 or 44 of Arizona Revised Statutes, who is aggrieved by a decision rendered in such case may file with the Commission, not later than ten days after service of the decision, a written application for rehearing or review of the decision specifying the particular grounds therefor.”). Unless otherwise ordered, filing an application for rehearing does not stay the ACC’s decision or order, and the respondent must comply with it. A.R.S. §§ 44-1974, 44-3214.

A rehearing may be granted for any of the following causes materially affecting the moving party’s rights: (1) irregularity in the proceedings before ACC or any order or abuse of discretion, whereby the moving party was deprived of a fair hearing; (2) misconduct of the ACC, its staff or its hearing officer, or the prevailing party; (3) accident or surprise that could not have been prevented by ordinary prudence; (4) newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing; (5) excessive or insufficient penalties; (6) error in the admission or rejection of evidence, or other errors of law occurring at the hearing; and (7) that the decision is not justified by the evidence or is contrary to law. A.A.C. R14-3-112(C). If the ACC does not grant a rehearing within twenty (20) calendar days of receipt, the application is deemed denied. A.R.S. §§ 44-1974, 44-3214. See also A.R.S. § 41-1062(B).

The respondent may also appeal the ACC’s decision to the Maricopa County Superior Court pursuant to A.R.S. §§ 44-1981 and/or 44-3231, and those appeals are governed by A.R.S. § 12-901, et seq. In order to appeal, the respondent must file its complaint in the Maricopa County Superior Court within 35 days of service of the ACC’s decision. A.R.S. § 12-904(A). See also A.R.S. § 12-909(A) (requirements for complaint). Within ten (10) days after filing the complaint, the respondent must also file a notice of action with the ACC, who will then transmit the record to the court. Id. § 12-904(B).

Within twenty (20) days after service of the summons and complaint, the ACC and all other defendants must answer the complaint. A.R.S. § 12-907. The Rules of Procedure for Judicial Review of Administrative Decisions will apply to the case.

The Superior Court has broad powers with such an appeal. See A.R.S. § 12-911. The superior court’s review is limited as “[t]he court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.” Id. § 12-910(E). However, the court must conduct a de novo review of the ACC’s application and interpretation of law. Ariz. Health Care Cost Containment Sys. Admin. v. Carondelet Health Sys., 188 Ariz. 266, 269, 935 P.2d 844, 847 (Ct. App. 1996).

If the respondent loses, the court may award the ACC its costs in a reasonable amount based upon the expense the ACC incurred in preparing the trial record. A.R.S. § 12-912. However, if the respondent prevails, he or she is entitled to an award of his or her fees and other expenses, which may include the attorneys’ fees incurred during both the appeal as well as the original ACC proceeding. See A.R.S. § 12-348(A)(2), (I).

If you would like to discuss your legal matter, please contact Robert Mitchell at rdm@tblaw.com, or at (602) 452-2730.
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