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Blankenbaker v. Marks - 3/28/2013

Arizona Court of Appeals Division One Holds That Mandamus Is Not Available to Compel the Director of the Arizona Department of Insurance to Enforce A.R.S. § 20-461(B), a Statute Prohibiting Discrimination Between Different Types of Physicians, Because Enforcement of That Statute Is Discretionary.


Plaintiffs, two doctors of chiropractic medicine and their patient, filed a complaint against the Director of the Arizona Department of Insurance.  Plaintiffs alleged that the patient’s insurer engaged in discriminatory conduct against the chiropractors in violation of A.R.S. § 20-461(B), and sought a writ of mandamus to compel the Director to enforce the statute against the insurer.  The superior court granted the Director’s motion to dismiss, and Plaintiffs timely appealed.

The Arizona Appeals Court affirmed, holding that mandamus relief was unavailable because the Director has discretion in the enforcement of A.R.S. § 20-461(B).  Mandamus is a remedy used to “compel a public officer to perform an act which the law specifically imposes as a duty,” and is not available if the act of the public officer is discretionary.  Sensing v. Harris, 217 Ariz. 261, 263 ¶ 6, 172 P.3d 856, 858 (App. 2007).  A.R.S. § 20-142(A) states that the Director “shall enforce the provisions” of Title 20, which includes A.R.S. § 20-461(B), a provision prohibiting insurers from discriminating between different types of physicians. 

The Court explained that the “shall enforce” language merely imposes a general duty on the Director that does not specify how or under what circumstances any of the statutes in Title 20 – including A.R.S. § 20-461(B) – are to be enforced, nor does it identify any particular act that the Director must take.  More fundamentally, A.R.S. § 20-142(A) does not alter the fact that the Director must interpret A.R.S. § 20-461(B), asses the circumstances and facts, determine if a violation was committed, and determine the form of enforcement – all of which are discretionary rather than ministerial tasks. 

The Court rejected Plaintiffs’ argument that A.R.S. § 20-461(D), which states that enforcement of A.R.S. § 20-461(B) is “solely an administrative remedy to the director,” removes the Director’s discretion in applying that statute.  That provision simply makes clear that A.R.S. § 20-461(B) does not create a private right of action.  The Court also rejected Plaintiffs’ argument that the Director abused his discretion by declining to enforce the statute, noting that no authority supported that contention in the mandamus context.  See Sensing, 217 Ariz. at 265 ¶ 14, 172 P.3d at 860.

Presiding Judge Gemmill authored the opinion; Judges Swann and Gould concurred.

Posted by Sharad H. Desai

Posted On: 3/29/2013