David B Smith v. Clean elections/hon Terry Goddard ( 2006 )

SUPREME COURT OF ARIZONA
En Banc
DAVID BURNELL SMITH, a citizen ) Arizona Supreme Court
and resident of the State of ) No. CV-06-0021-PR/A
Arizona, )
) Court of Appeals
Petitioner/Appellant, ) Division One
) No. 1 CA-SA 05-0292A
v. )
) Maricopa County
ARIZONA CITIZENS CLEAN ELECTIONS ) Superior Court
COMMISSION, an agency of the ) No. CV 2005-093310
State of Arizona; STATE OF )
ARIZONA, a State of the United )
States of America; STATE OF ) O P I N I O N
ARIZONA ex rel. TERRY GODDARD, )
ARIZONA ATTORNEY GENERAL, )
)
Real Parties in Interest )
/Appellees. )
__________________________________)
Appeal from the Superior Court in Maricopa County
Honorable Mark F. Aceto, Judge
AFFIRMED
Court of Appeals, Division One
Memorandum Decision (filed Jan. 19, 2006)
AFFIRMED
________________________________________________________________
CHARLES M. BREWER, LTD. Phoenix
By David L. Abney
Attorneys for David Burnell Smith
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Diana L. Varela, Assistant Attorney General
Jessica Gifford Funkhouser, Special Counsel
Attorneys for Arizona Citizens Clean Elections Commission,
State of Arizona, Terry Goddard, Arizona Attorney General
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 In 2004, David Burnell Smith was elected to serve in
the Arizona State Legislature as a Representative from District
7. He chose to run as a publicly funded candidate. In return
for the receipt of public funds, he and the other participating
candidates each signed a form promising to adhere to the
provisions of the Citizens Clean Elections Act, Ariz. Rev. Stat.
(“A.R.S.”) §§ 16-940 to -961 (Supp. 2005), and to the campaign
finance rules promulgated by the Arizona Clean Elections
Commission. See Ariz. Admin. Code (“A.A.C.”) R2-20-215 to -228.
The Citizens Clean Elections Act provides sanctions for
violations of the campaign finance laws, including fines,
criminal sanctions, and, for serious cases, removal from office.
A.R.S. § 16-942.
¶2 Following an investigation of Smith’s campaign
expenditures, the Commission determined that Smith violated
campaign finance rules by spending approximately seventeen
percent more on his election than is permitted by law. See
§ 16-942(C). For that violation, the Commission decided that
Smith should forfeit his office. This is Smith’s final review
of several determinations — at the administrative level, on
review by the superior court, and following a decision by the
court of appeals — all affirming the Commission’s determination
that Smith violated campaign finance laws and must leave office
or concluding that Smith did not timely appeal the Commission’s
decision.
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¶3 On January 26, 2006, this court issued an order
denying Smith’s request for a stay of proceedings, granting his
petition for review, and affirming the judgment of the superior
court. This opinion explains our reasoning. We have
jurisdiction over this case pursuant to A.R.S. § 12-120.24
(2005) and Article 6, Section 5(3) of the Arizona Constitution.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶4 The factual and procedural background of this case is
lengthy. Rather than set it forth in detail here, matters will
be set forth as necessary to the resolution of each claim.
II. DISCUSSION
A. Constitutional Privilege
¶5 Smith raises a preliminary matter that, if resolved in
his favor, would obviate the need to address any other issue.
Accordingly, we address it first. Smith claims that this
litigation cannot proceed because, as a state legislator, he
enjoys a constitutional immunity to civil process during, and
for fifteen days preceding, the legislative session. This
privilege is set forth in Article 4, Part 2, Section 6 of the
Arizona Constitution, which provides as follows:
Members of the Legislature shall . . . not be subject
to any civil process during the session of the
Legislature, nor for fifteen days next before the
commencement of each session.
¶6 We construe constitutional provisions in light of the
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purpose of the enactment and the “evil sought to be remedied.”
Ruth v. Indus. Comm’n, 107 Ariz. 572, 575, 490 P.2d 828, 831
(1971). Although there is little history surrounding the
passage of Article 4, Part 2, Section 6,1 this court has noted
that a similar provision in the Federal Constitution was
designed to avert an arrest, either criminal or civil, that
would prevent a legislator from attending session. See Yuma
Greyhound Park, Inc. v. Hardy (Steiger), 106 Ariz. 178, 179, 472
P.2d 47, 48 (1970) (citing Long v. Ansell, 293 U.S. 76 (1934),
discussing Article 1, § 6 of the United States Constitution);
accord State v. Beno, 341 N.W.2d 668, 676 (Wis. 1984) (noting
that the Wisconsin privilege, worded almost identically to
Arizona’s, is designed to ensure a legislator’s availability to
represent his constituents). The federal privilege provision
has been described as extending to “a subpoena ad respondendum,
aut testificandum, or a summons to serve on a jury” because such
seizures of the person would preclude a representative from
doing his public duty. Joseph Story, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 857 (1833).
¶7 That rationale does not pertain here. Smith is not
defending a suit brought by another. Instead, Smith has invoked
1
See John S. Goff, THE RECORDS OF THE ARIZONA CONSTITUTIONAL
CONVENTION OF 1910, 902 (1991) (noting simply that the provision
was read, but reflecting no comments on it).
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the jurisdiction of the courts. On January 24, 2006, for
example, Smith filed a petition for review urging this court to
accept jurisdiction and reverse the court of appeals’ memorandum
decision, which affirmed the superior court’s judgment that
Smith should forfeit his seat in the legislature. Had Smith not
invoked the jurisdiction of the courts, the Clean Elections
Commission’s removal order would have become final on September
8, 2005,2 and Smith’s removal from office would have occurred
more than fifteen days before the legislative session began.
¶8 A legislator may not seek the court’s intercession
solely for the purpose of keeping alive a case that would remove
him from office, then claim immunity from participating in the
very case he has brought. Having participated in the case
before the Commission during his last legislative term and lost,
and then having instituted suit and appeals in an attempt to
overturn the administrative result, Smith cannot claim
legislative immunity.
B. The Stay Request
¶9 Smith requested that this court stay the effect of the
court of appeals’ order finding that he had not properly
appealed his case. See ARCAP 7(c) (authorizing court to enter a
stay to preserve the status quo pending review of a case).
2
The Commission’s order was dated August 25, 2005. As will
be discussed, Smith had fourteen days from that date to appeal.
See infra ¶¶ 22-26.
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While this court has not had occasion to set forth the
analytical framework for evaluating requests for stays in the
appellate context, Arizona courts have applied to such stay
requests the traditional criteria for the issuance of
preliminary injunctions, see Shoen v. Shoen, 167 Ariz. 58, 63,
804 P.2d 787, 792 (App. 1991) (preliminary injunction
standards); Burton v. Celentano, 134 Ariz. 594, 595, 658 P.2d
247, 248 (App. 1982) (same), as did the appellate court and the
parties in this case. We find the construct useful and
therefore adopt it.
¶10 A party seeking a stay on appeal must thus establish
the following elements:
1. a strong likelihood of success on the merits;
2. irreparable harm if the stay is not granted;
3. that the harm to the requesting party outweighs
the harm to the party opposing the stay; and
4. that public policy favors the granting of the
stay.
See Shoen, 167 Ariz. at 63, 804 P.2d at 792; Burton, 134 Ariz.
at 595, 658 P.2d at 248. The scale is not absolute, but
sliding. Nor should the result turn on counting the factors
that weigh on each side of the balance. Rather, “the moving
party may establish either 1) probable success on the merits and
the possibility of irreparable injury; or 2) the presence of
serious questions and [that] ‘the balance of hardships tip[s]
sharply’” in favor of the moving party. Shoen, 167 Ariz. at 63,
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804 P.2d at 792 (quoting Justice v. Nat’l Collegiate Athletic
Ass’n, 577 F. Supp. 356, 363 (D. Ariz. 1983)). The greater and
less reparable the harm, the less the showing of a strong
likelihood of success on the merits need be. Conversely, if the
likelihood of success on the merits is weak, the showing of
irreparable harm must be stronger.
¶11 We applied these criteria to Smith’s request for a
stay. Because we concluded, for the reasons set forth below,
that Smith would not succeed on his claims and that the judgment
of the superior court should be affirmed, we denied his stay
request.
C. The Merits
1. Removal only by impeachment or recall
¶12 Smith’s primary claim is that he can be removed from
office only by “impeachment or recall” and then only for the
reasons set forth in the constitution. He bases his claim on
Article 8, Part 2, Section 1 of the Arizona Constitution, which
provides that, on vote of two-thirds of the members of the
Senate, a state officer may be removed from office for “high
crimes, misdemeanors, or malfeasance in office.”
¶13 The argument that a state officer may be removed from
office only as prescribed in the constitution was squarely
raised and rejected in State ex rel. DeConcini v. Sullivan, 66
Ariz. 348, 355, 188 P.2d 592, 596 (1948). In Sullivan, this
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court observed that while the constitution may limit legislative
powers, unless a power is expressly or by implication precluded,
the legislature retains power to act. Id. at 356-57, 188 P.2d
at 597. The court concluded that Article 8, Part 2 does not
limit the power of the legislature to devise additional methods
of and causes for removal and therefore does not provide the
exclusive means of removal from public office. Id. at 357, 188
P.2d at 598; cf. A.R.S. § 1-253(B) (2002) (permitting
“impeachment, removal, deposition or suspension” from office for
certain offenses, even if the offense does not specify removal
from office as a potential penalty). If, as Smith contends, the
constitutional means were exclusive, the legislature would be
unable to enact laws allowing removal of one who had become
mentally incompetent or physically unable to hold office. As
this court noted in Sullivan, that constitutional provision was
intended to protect the public by making it easier to remove
public officers, not to protect malfeasing public servants. 66
Ariz. at 358-59, 188 P.2d at 599.
¶14 In this case, the public, acting in its legislative
capacity, authorized removal from public office as a sanction
for serious violations of the campaign finance laws. See A.R.S.
§ 16-942(C). Smith agreed to abide by those terms when he
sought to finance his campaign with public funds. A.R.S. § 16-
947(A), (B) (requiring participating candidates to file an
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affidavit with the Secretary of State’s Office pledging
adherence to campaign finance laws). His removal was not
precluded by any provision of the Arizona Constitution.
¶15 Smith counters that Holmes v. Osborn, 57 Ariz. 522,
115 P.2d 775 (1941), “held” that impeachment and recall are the
sole means of removing elected officials from office. The
language on which he relies from that case, however, is dictum,
as that case dealt with the legislature’s unquestioned power to
provide the means for removal of members of the Industrial
Commission. Id. at 537, 115 P.2d at 782. Moreover, the records
of the Arizona Constitutional Convention suggest that the
drafters of our constitution anticipated that the legislature
could devise other grounds for removal. See John S. Goff,
RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1910, 921-22 (1991)
(noting that “there is no need to make a provision in the
constitution” for removal of elected officials and executive
appointees because “the legislature will have the power to do
that without authorization in the constitution”). Impeachment
is therefore not the sole means of removal for elected
officials, nor are the reasons for removal limited to those
listed in Article 8, Part 2, Section 2 of the Arizona
Constitution.
¶16 Smith’s claim that he cannot be removed except by
impeachment or recall fails.
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2. Failure to timely appeal
a. Background
¶17 The superior court held, and the court of appeals
agreed, that Smith failed to timely appeal the Commission’s
decision that he had overspent his campaign limits and therefore
must forfeit his office. We agree that Smith failed to timely
appeal.
¶18 Determining the procedure for review of administrative
decisions involves the interpretation of rules and statutes,
which we review de novo. Pima County v. Pima County Law
Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119
P.3d 1027, 1030 (2005). We apply the same rules in construing
both statutes and rules. State ex rel. Romley v. Martin, 205
Ariz. 279, 281, ¶ 6, 69 P.3d 1000, 1002 (2003). To determine
whether Smith’s appeal was timely, some procedural background is
necessary.
¶19 On March 25, 2005, following its investigation of
Smith’s campaign spending, the Citizens Clean Elections
Commission issued an Order and Notice of Appealable Agency
Action. That preliminary order concluded that Smith had
violated the Clean Elections Act and must forfeit his seat in
the legislature. The order would have been final had Smith
elected to take no further action in the case. But the order
advised Smith that he could appeal “pursuant to the
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Administrative Procedures Act,” A.R.S. §§ 41-1092 to -1092.12
(2004 & Supp. 2005), within thirty days, and Smith pursued this
avenue of redress by requesting a hearing before an
administrative law judge (“ALJ”).
¶20 On August 22, 2005, following a two-day hearing, the
ALJ issued a lengthy decision concluding that the Commission had
carried its burden of proving its case and recommending to the
Commission that Smith’s appeal be denied. The Commission
adopted that recommendation three days later, on August 25,
2005, incorporating in its Final Order the ALJ’s detailed
findings of fact and conclusions of law and issuing sanctions of
repayment of public funds, a fine, and forfeiture of office.
¶21 Smith sought review of the August 25 order in two
ways: First, he filed a Motion for Rehearing or Review on
September 23, 2005; that motion was denied on October 4.
Second, on September 26, 2005, he filed a complaint for judicial
review in superior court.
b. Waiver of fourteen-day rule
¶22 The statute providing for judicial review of Citizens
Clean Election Commission rulings, A.R.S. § 16-957(B), provides
that “[t]he violator has fourteen days from the date of issuance
of the order assessing the penalty to appeal to the superior
court.” Smith’s appeal, filed September 26, was filed more than
fourteen days after the Commission’s August 25 order assessing
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the penalty of removal from office. Smith, however, argues that
for several reasons his appeal was nonetheless timely.
¶23 Smith first argues that the Commission’s March 25
order waived the jurisdictional appeal time set forth in A.R.S.
§ 16-957(B) and “gave Representative Smith extended appellate
deadlines” that became applicable five months later, on August
25, after the Commission’s ruling became final. His claim is
not clear, but he appears to contend that permitting him to
pursue redress through the administrative process rather than
requiring him to appeal the March 25 preliminary order
immediately to superior court precludes the Commission and the
courts from demanding timely adherence to the fourteen-day time
limit imposed by A.R.S. § 16-957(B) following the final
administrative determination. This argument misapprehends the
administrative review structure and misconstrues the record.
¶24 The administrative rules that supplement the statutory
processes for obtaining review of administrative actions by the
Clean Elections Commission, A.A.C. R2-20-214 to -231, provide
any person who has been administratively sanctioned the due
process right to challenge the decision within the
administrative structure, pursuant to the Administrative
Procedures Act (“APA”), A.R.S. §§ 41-1092 to -1092.12. The
March 25 order notified Smith of this right, after which Smith
requested and was afforded this process. The Commission’s March
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25 notice to Smith that he could file an administrative appeal
did not nullify the fourteen-day time limit for seeking judicial
review once the administrative hearing process had resulted in a
final administrative order. Rather, the order simply stayed the
effectiveness of the Commission’s order while Smith exhausted
the available administrative process.
¶25 It is well settled that the time for filing an appeal,
whether by appeal or by complaint for judicial review following
the conclusion of the administrative process, is jurisdictional.
See Ariz. Comm’n of Agric. & Horticulture v. Jones, 91 Ariz.
183, 187, 370 P.2d 665, 668 (1962); Ariz. Dep’t of Econ. Sec. v.
Holland, 120 Ariz. 371, 372, 586 P.2d 216, 217 (App. 1978). The
Commission has no power to waive it because the failure to
timely appeal “deprive[s] th[e] court of jurisdiction to review
the [administrative] decision.” Holland, 120 Ariz. at 372, 586
P.2d at 217; see also Jones, 91 Ariz. at 188, 370 P.2d at 669.
¶26 Smith points to no language in the Commission’s March
25 order purporting to excuse the time limits of A.R.S. § 16-
957(B), and we find none. The order advises Smith only that he
has the right to administratively appeal the preliminary
determination that he has violated campaign finance rules by
invoking the procedures set forth in the Administrative
Procedures Act. It confirmed the procedure that existed as a
matter of law. The Commission did not waive the provisions of
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A.R.S. § 16-957(B) by any language in the March 25, 2005 order.3
c. Premature appeal
¶27 Smith claims that the Complaint for Judicial Review he
filed in superior court on September 26 should be considered a
“premature” appeal that sprang to life after the Commission
subsequently issued its October 4 order denying Smith’s Motion
for Rehearing or Review. He maintains that the appeal was
timely because, while it was filed eight days before the ruling
appealed from, it nonetheless came “within” fourteen days of the
Commission’s issuance of the order assessing the penalty.
¶28 On August 25, 2005, the Clean Elections Commission
adopted the ALJ’s decision and recommendation and entered the
Commission’s “Final Order,” which assessed penalties requiring
repayment of $34,625.09 to the Clean Elections Fund, imposing a
civil penalty of $10,000, and requiring Smith to forfeit his
public office.
¶29 Smith had the right to seek judicial review of that
decision pursuant to the Judicial Review of Administrative
Decisions Act (“JRADA”), A.R.S. §§ 12-901 to -914 (2003), which
3
Smith seems to confuse the right to administrative appeal
within the administrative process pursuant to the APA, found in
Title 41, with judicial review of the ultimate administrative
order pursuant to the Judicial Review of Administrative
Decisions Act (“JRADA,” sometimes formerly called the
Administrative Review Act), found in Title 12. A statement
regarding Smith’s rights under the APA did not affect later-
attaching rights under the JRADA.
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allows thirty-five days to file an appeal. A.R.S. § 12-904(A).
The provisions of the JRADA do not apply, however, if a more
definite procedure is set forth in “the act creating or
conferring power on an agency or a separate act.” A.R.S. § 12-
902(A)(1). If more definite provisions exist, those more
specific provisions control. Id.; see also Ariz. State Tax
Comm’n v. Phelps Dodge Corp., 116 Ariz. 175, 177, 568 P.2d 1073,
1075 (1977) (observing that specific statutes displace general
statutes). In this case, the Clean Elections Act itself
contains a definite term for appeals: A.R.S. § 16-957(B)
requires that appeals be taken no later than “fourteen days from
the date of issuance of the order assessing the penalty.” The
time to appeal is jurisdictional; any appeal not filed within
the stated period is barred. A.R.S. § 12-902(B).
¶30 The penalty-assessing order in this case was issued on
August 25, 2005. Smith’s appeal should therefore have been
filed on or before September 8. Smith filed nothing between
August 25 and September 8.
¶31 On September 23, however, Smith filed a Motion for
Rehearing or Review. He did so pursuant to an invitation in the
last paragraph of the Commission’s August 25 “Final Order,”
which contains the following directions to the aggrieved party:
Pursuant to A.R.S. § 41-1092.09, any party that is
aggrieved by this Order may file with the Commission,
not later than thirty (30) days after service of this
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decision, a written motion for rehearing or review
. . . . In the alternative, any party may file an
action for judicial review in the Superior Court of
Arizona, pursuant to A.R.S. § 16-957(B) and A.A.C. R2-
20-228.
Under the JRADA, a motion for rehearing tolls the time to
appeal. See A.R.S. § 12-901(2) (providing that no
administrative order is final until any motion for rehearing or
review has been decided). Smith therefore claims that his time
to appeal was extended until the disposition of the rehearing
motion.
¶32 Smith’s argument fails because A.R.S. § 16-957(B)
expressly requires that an appeal must be taken no later than
“fourteen days from the date of issuance of the order assessing
the penalty.” In this case, the penalty-assessing order was
issued on August 25, 2005, and Smith did not file an action
within fourteen days of that date. Moreover, when that time
expired, Smith had not yet filed his motion for rehearing or
review. His time to appeal therefore lapsed.
¶33 Even if section 12-901(2) applied, however, and would
have extended the time to appeal if a timely motion for
rehearing had been filed, Smith’s motion for rehearing was filed
too late to extend the time to appeal. Because the JRADA time
provisions do not control when an administrative agency’s
statute provides a definite appeal time, it follows that the
Citizens Clean Elections Act’s fourteen-day appeal provision for
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seeking judicial review cannot be extended by a rehearing motion
filed after the fourteen days have expired. The Commission may,
by its August 25 order, have bound itself to consider Smith’s
rehearing motion, but it could not have conferred jurisdiction
on the superior court to consider an untimely appeal.
¶34 We recognize that Smith might have been misled by the
language in the Commission’s August 25 Final Order regarding the
filing of a motion for rehearing or review. But even assuming
that he was misled by the August 25 order to believe that a
motion for rehearing or review filed after the appeal time has
run can stay the effect of an otherwise final order, the fact
remains that even after the Commission denied the motion on
October 4, 2005, Smith took no action in the fourteen days
following that date to appeal his case. The record reflects
that Smith did nothing until he amended his September 26
complaint on October 28, twenty-four days after the latest
possible appealable order. Thus his appeal time expired.
¶35 If, on the other hand, the August 25 order is viewed
as the final “order assessing a civil penalty,” Smith filed his
September 26 complaint thirty-one days after the August 25 order
and his amended complaint, dated October 28, 2005, more than two
months after the August 25 order. Under any state of the facts,
Smith failed to timely appeal the Commission’s order, and it
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became final.4 This court is not free to ignore the clear
statutory language of A.R.S. § 16-957(B) and create jurisdiction
in the superior courts where the legislature has provided to the
contrary.
¶36 Smith seeks to avoid the consequences of the late
filing of his appeal by arguing that the September 26 complaint
was timely because it was “within” fourteen days of the October
4 order denying rehearing or review. Section 16-957(B),
however, does not require that a notice of appeal be filed
“within” a certain number of days of a ruling; it says that the
“violator has fourteen days from the date of issuance of the
order assessing the penalty to appeal.” Id. (emphasis added).
“From” means “after.” Until an order has been entered, there
can be no appeal. See A.R.S. § 12-909 (requiring complaint in
appeal from an administrative decision to contain a statement of
the findings and decision sought to be reviewed).
¶37 Smith asserts that Barassi v. Matison holds that an
appellate court may exercise jurisdiction over a premature
appeal if the appellant displayed an intent to appeal, appellees
4
For the reasons discussed supra ¶¶ 31-35, we encourage the
Commission to revise its form to avert any possible confusion in
future cases. In this case, because Smith did not file his
complaint within thirty days of any relevant order and would not
have prevailed in any event on his claim that he could be
removed only by impeachment or recall, see supra ¶¶ 12-16, he
suffered no prejudice from any confusion that might have been
engendered by language in the Commission’s order.
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were not prejudiced, and the appeal was only mistakenly filed
early. 130 Ariz. 418, 636 P.2d 1200 (1981). Barassi, however,
creates only a limited exception to the final judgment rule that
allows a notice of appeal to be filed after the trial court has
made its final decision, but before it has entered a formal
judgment, if no decision of the court could change and the only
remaining task is merely ministerial. Compare id. at 422, 636
P.2d at 1204 (notice filed after issuance of minute entry but
before entry of the order), and Comeau v. Ariz. State Bd. of
Dental Exam’rs, 196 Ariz. 102, 106, ¶ 16, 993 P.2d 1066, 1070
(App. 1999) (notice filed after court issued unsigned minute
entry, but before clerk entered the judgment), with Baumann v.
Tuton, 180 Ariz. 370, 372, 884 P.2d 256, 258 (App. 1994)
(holding that notice of appeal filed while a motion for a new
trial was pending in the trial court did not confer jurisdiction
on the appellate court).
¶38 Smith does not fall under the Barassi exception.
Before filing his complaint for judicial review, he had
requested that the Commission review his case or, in the
alternative, grant him a new hearing. These are substantive
matters requiring the discretion of the decision-maker. They
are not ministerial tasks. We noted in Barassi that appellate
courts should dismiss a case for lack of jurisdiction while such
a motion was still pending in the trial court. Barassi, 130
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Ariz. at 422, 636 P.2d at 1204.5 Smith’s reliance on Barassi is
thus unavailing.
¶39 Beyond this limited exception, Arizona courts have
consistently and with good reason held that premature notices of
appeal are ineffective because they disrupt court processes.
Baumann, 180 Ariz. at 372, 884 P.2d at 258. The better practice
is to give litigants “the opportunity to persuade the trial
court of its error so that the trial court’s ruling on a pending
motion may cure any error and obviate the necessity for an
appeal.” Id. (citation omitted); see also, e.g., Flagstaff
Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d
985, 990 (1978). Requiring timely notices of appeals following
entry of final judgments also prevents two courts from assuming
jurisdiction and acting at the same time. See Clifton Power
Corp. v. Fed. Energy Reg. Comm’n, 294 F.3d 108, 110 (D.C. Cir.
2002). Sound reasons thus support the rule that one may appeal
only from a final judgment.
¶40 In short, an appeal will lie only from a final
administrative order. Any person who fails to seek review
“within the time and in the manner provided in this
article . . . shall be barred from obtaining judicial review of
5
Because we conclude that Barassi does not apply to Smith’s
situation, we do not consider his arguments that he meets the
further requirements of Barassi that he displayed an intent to
appeal, that the Appellees were not prejudiced, and that the
notice of appeal was only mistakenly filed prematurely.
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the decision.” A.R.S. § 12-902(B) (emphasis added). In
concluding that Smith’s action was barred, the superior court
and court of appeals simply followed established law. Even
under the most charitable interpretation of the record, Smith’s
appeal was untimely.
3. Jury trial on quo warranto claim
¶41 Smith next claims that the Arizona Constitution
guarantees him the right to a jury trial on the Attorney
General’s request for a writ of quo warranto to remove him from
office. We review such legal questions de novo. See US West
Commc’ns, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244, ¶ 17,
34 P.3d 351, 353 (2001).
¶42 The Attorney General is authorized to bring a quo
warranto action to oust from office “any person who usurps,
intrudes into or unlawfully holds or exercises any public office
. . . within the state.” A.R.S. § 12-2041(A) (2003). On
October 20, 2005, sixteen days after the Commission denied
Smith’s request for a rehearing, after the time for filing a
complaint for judicial review of the Commission’s final
administrative decision had run, the Attorney General filed a
petition for a writ of quo warranto to have Smith removed from
his public office. At that time, the administrative review
process was final. The Commission’s findings of fact were
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conclusive, as was the Commission’s legal determination that
Smith must forfeit his office.
¶43 In response to the Attorney General’s complaint, Smith
asserted a right to a jury trial pursuant to Article 2, Section
23 of the Arizona Constitution, which guarantees that “[t]he
right of trial by jury shall remain inviolate.” This court
recently observed, however, that Arizona’s jury trial provision
merely preserves a right to jury trial if such a right existed
at common law; it does not create a right where none existed
before. See Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 8, 104
P.3d 147, 150 (2005). As the court of appeals correctly
concluded, that right has never extended to civil cases that
turn on uncontested facts. Smith v. Ariz. Citizens Clean
Elections Comm’n, 1-CA-SA 05-0292A, slip op. ¶¶ 65, 67-68 (Ariz.
App. Jan. 19, 2006) (mem. decision); see also K.B. v. State Farm
Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App.
1997) (stating that the rules of civil procedure do not require
jury trial if no facts are in dispute).
¶44 In this case, we must resolve only whether Smith
timely appealed, a matter controlled by law. See A.R.S. § 16-
957(B). As a matter of law, when the deadline passed without
Smith having filed a timely complaint for judicial review, he
lost his right to appeal. See State v. Dawson, 164 Ariz. 278,
280, 792 P.2d 741, 743 (1990). Because no fact question arises
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from these circumstances, there is no right to a jury trial.
See Preston v. Denkins, 94 Ariz. 214, 221, 382 P.2d 686, 690
(1963). While contested facts might arise if we were
determining whether Smith overspent, Smith’s failure to timely
appeal removes that question from the case.
¶45 Smith cites State ex rel. Bullard v. Jones, 15 Ariz.
215, 222, 137 P. 544, 547 (1914), in support of his quest for a
jury trial, incorrectly stating that this court held that one is
entitled to a jury trial in quo warranto proceedings. More
correctly, the court observed, in dictum, that “issues of fact
arising in quo warranto proceedings were triable by jury.” Id.
(emphasis added) (quoting II BAILEY ON HABEAS CORPUS § 328). That
statement is correct. But, as noted, there are no facts extant
here for a jury to decide.
¶46 Smith’s demand for a jury trial therefore fails.
4. Declaratory judgment action as an independent
lawsuit
¶47 Smith next claims that his September 26 complaint
should stand on its own as a self-sufficient lawsuit raising
constitutional challenges to the Citizens Clean Elections Act
that are independent of his challenges to the Commission’s
rulings against him. These claims, he asserts, are not subject
to the fourteen-day time limit imposed by A.R.S. § 16-957(B).
¶48 To the contrary, a party may not use a complaint for
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declaratory relief as a substitute for a timely complaint for
judicial review of an administrative order. Smith was required
to raise all of his challenges to the Commission’s actions and
his related constitutional claims in a timely complaint for
judicial review under the JRADA. See Hurst v. Bisbee Unified
Sch. Dist. No. Two, 125 Ariz. 72, 75, 607 P.2d 391, 397 (App.
1979) (stating that constitutional challenges to an
administrative act must be raised through appeal of the final
agency decision); see also Thielking v. Kirschner, 176 Ariz.
154, 156, 859 P.2d 777, 779 (App. 1993) (noting that “[a] party
. . . cannot substitute a declaratory relief action for a timely
appeal” of an administrative decision).
¶49 The reasons for requiring challenges to administrative
actions to be raised in appeals from agency decisions rather
than in separate declaratory judgment actions parallel those for
requiring notices of appeals to be timely filed following an
agency’s final decision: cases should proceed in only one forum
at a time, and administrative decisions should become final on
an identifiable date. If independent collateral challenges to
the constitutionality of the underlying statutes were allowed,
agency decisions would not be final until the time for filing
declaratory judgment actions has run. Id. The appropriate
method for raising such claims is a timely complaint for
judicial relief filed pursuant to the JRADA.
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¶50 Smith’s untimely complaint therefore does not survive
as an independent lawsuit on the merits of this claim or any
other of his substantive claims.
III. CONCLUSION
¶51 The issues Smith has raised are not novel nor, in the
circumstances of this case, is Smith shielded by legislative
immunity. The record shows that Smith was afforded all
appropriate process in the administrative proceedings, and he
simply failed to timely pursue review of the Commission’s Final
Order.
¶52 We therefore grant the Petition for Review, but deny
relief. We affirm the judgment of the superior court and the
memorandum decision of the court of appeals.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_____________________________________
Ruth V. McGregor, Chief Justice
______________________________________
Michael D. Ryan, Justice
______________________________________
Andrew D. Hurwitz, Justice
______________________________________
W. Scott Bales, Justice
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