Opinion

Ex Parte Dan Tucker Auto Sales, Inc.

  • 718 So. 2d 33
  • 1998 Ala. LEXIS 184
  • 1998 WL 351784
Court
Supreme Court of Alabama
Filed
Jul 2, 1998
Status
Published
Author
Houston
On the bench
Cook, Hooper, Houston, Lyons
Cited by
124 cases
Authority
More cited than 15.1%

rejecting the argument that an arbitration filing fee might be a financial hardship on the basis that the Commercial Rules provide a mechanism to defer or reduce the administrative fees or apportion all fees to one party or the other

How later courts described this case

  • rejecting the argument that an arbitration filing fee might be a financial hardship on the basis that the Commercial Rules provide a mechanism to defer or reduce the administrative fees or apportion all fees to one party or the other
  • stating that the parties' arbitration provision incorporated by reference the Commercial Arbitration Rules of the American Arbitration Association
  • contract between seller and buyer declared that disputes were to be resolved through binding arbitration according to the AAA's Commercial Arbitration Rules; therefore, the agreement incorporated the language of the Commercial Arbitration Rules regarding the resolution of disputes
  • Lyons, J., concurring specially and quoting from Justice Black's dissenting opinion in Gwin, White Prince, Inc. v. Henneford , 305 U.S. 434 , 454-55 (1939) (Black, J., dissenting

Written by the judges who cited it.

The opinion

I was one of the four Justices who concurred in the opinion in Allied-Bruce Terminix Cos. v. Dobson , 628 So.2d 354 (Ala. 1993), 3 which the United States Supreme Court reversed in Allied-Bruce Terminix Cos. v. Dobson , 513 U.S. 265 , 115 S.Ct. 834 , 130 L.Ed.2d 753 (1995). Although I disagree with the majority of the United States Supreme Court in its Allied-Bruce

interpretation of the Federal Arbitration Act as it applies to state courts, a majority opinion of that Court is part of the law I have taken an oath to uphold. See the second paragraph of Article VI of the Constitution of the United States. I agree with the belief expressed by Justice O'Connor in her special concurrence in Allied-Bruce , 513 U.S. at 283 , 115 S.Ct. 834 :

"I continue to believe that Congress never intended the Federal Arbitration Act to apply in state courts, and that this Court has strayed far afield in giving the Act so broad a compass."

(Citations omitted.) I also agree with the dissenting opinions of Justice Scalia and Justice Thomas in Allied-Bruce . However, Justice O'Connor's belief and the dissenting opinions of Justice Scalia and Justice Thomas are not the law that I have taken an oath to uphold.

I personalize Chief Justice Burger's special concurrence in Bifulco v. United States , 447 U.S. 381 , 100 S.Ct. 2247 , 65 L.Ed.2d 205 (1980):

"The temptation to exceed [my] limited judicial role and to do what [I] regard as the more sensible thing is great, but it takes [me] on a slippery slope. [My] duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done. The Spirit of Liberty: Papers and Addresses of Learned Hand 306-307 (Dilliard ed. 1960)."

447 U.S. at 401 -02 , 100 S.Ct. 2247 (Burger, C.J., concurring).

As I have in the past, I continue to oppose the judicial enforcement of predispute arbitration agreements, because of the state policy expressed in Ala. Code 1975, § 8-1-41 (3). Unless that section is determined to violate the Constitution of Alabama or the policy expressed by that section is changed by acts of the Alabama Legislature, I will continue my opposition to the extent I am allowed to do so by the Constitution of the United States as interpreted by the Supreme Court of the United States.

3 Justice Kennedy concurred in the result, without writing, and thereby cast the fifth vote to affirm the judgment or the trial court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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