# Ex Parte Dan Tucker Auto Sales, Inc.

> Supreme Court of Alabama · July 2, 1998 · 718 So. 2d 33

URL: https://www.frixlaw.com/law-library/cases/9934030

## Case

- **Full name:** Ex Parte Dan Tucker Auto Sales, Inc. (In Re John Phelps v. Dan Tucker Auto Sales, Inc.).
- **Court:** Supreme Court of Alabama
- **Decided:** July 2, 1998
- **Citations:** 718 So. 2d 33; 1998 Ala. LEXIS 184; 1998 WL 351784
- **Precedential status:** Published
- **Opinion:** Concurrence by Houston
- **Judges:** Cook, Hooper, Houston, Lyons
- **Cited by:** 124 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9934030

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9934030. Public record. Not legal advice.