Greg Mills v. Abtr ( 2022 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
GREG MILLS, ET AL.,
Plaintiffs/Appellants,
v.
ARIZONA BOARD OF TECHNICAL REGISTRATION, ET AL.,
Defendants/Appellees.
No. CV-21-0203-PR
Filed August 10, 2022
Appeal from the Superior Court in Maricopa County
The Honorable Joseph P. Mikitish, Judge
No. CV2019-013509
AFFIRMED IN PART; REVERSED IN PART; REMANDED
Memorandum Decision of the Court of Appeals,
Division One
1 CA-CV 20-0510
Filed August 12, 2021
REVERSED
COUNSEL:
Paul V. Avelar (argued), Institute for Justice, Tempe; Daniel Rankin,
Institute for Justice, Arlington, VA, Attorneys for Greg Mills, et al.
John C. Gray (argued), Gregory Y. Harris, Lewis Roca Rothgerber Christie
LLP, Phoenix, Attorneys for Arizona Board of Technical Registration, et al.
Brett W. Johnson, Tracy A. Olson, Ian R. Joyce, Snell & Wilmer LLP,
Phoenix; Ronald M. Jacobs, Jay C. Johnson, Venable LLP, Washington, D.C.,
Attorneys for Amici Curiae National Council of Architectural Registration
Boards, National Council of Examiners for Engineering and Surveying, and
Council of Landscape Architectural Registration Boards
Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation at
the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater
Institute
Aditya Dynar, Pacific Legal Foundation, Arlington, VA, Attorneys for
Amicus Curiae Pacific Legal Foundation
VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, LOPEZ, BEENE,
MONTGOMERY, and KING joined.
¶1 Greg Mills is an engineer who designs, analyzes, tests, and
builds electronic circuits for consumer products through his consulting
firm, Southwest Engineering Concepts, LLC (“SEC”). The Arizona Board
of Technical Registration regulates several technical professions, including
engineers. See A.R.S. §§ 32-101 to -113. Persons engaging in an
“engineering practice” must comply with the Board’s qualifications and
standards, including registration. See A.R.S. §§ 32-101(B)(11), 32-121. Mills
and the Board dispute whether his work requires registration with the
Board, but the Board has not initiated formal proceedings to resolve the
matter.
¶2 The issue here is whether the doctrines of exhaustion of
administrative remedies, ripeness, and standing bar Mills’ suit filed in the
superior court pursuant to the Uniform Declaratory Judgments Act
(“UDJA”), A.R.S. §§ 12-1831 to -1846, to challenge the constitutionality of
statutes prohibiting persons and firms from engaging in “engineering
practices” unless registered with the Board. We hold that, for the most part,
these doctrines do not prohibit Mills from proceeding with his lawsuit.
BACKGROUND
¶3 Mills worked as an engineer for manufacturing companies for
decades before starting SEC and eventually coming to the Board’s attention.
In May 2019, the Board commenced an investigation after receiving a
customer complaint about Mills’ fees and his non-registration status. Based
on two Board-registered engineers’ opinions, it determined Mills and SEC
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had violated the law by engaging in “engineering practices” and by
advertising their services as “engineers” without first registering with the
Board. See A.R.S. §§ 32-141 (firm), 32-145 (individual). A violation of either
statute is a class two misdemeanor that subjects the offender to fines and
incarceration. A.R.S. §§ 32-145(6), 13-707(A)(2), 13-802(B).
¶4 To resolve the complaint informally, a Board investigator sent
Mills a proposed consent agreement and order in August asking him to
agree he had violated the law. See Ariz. Admin. Code R4-30-120(G). If
signed, the consent agreement would have imposed a $3,000 fine, assessed
investigation costs, and required Mills to stop working until he and SEC
properly registered with the Board. Mills disputed that either he or SEC
was required to register with the Board and therefore refused to sign the
consent agreement.
¶5 In October, Mills declined a Board invitation to meet and
discuss the investigation. The Board met anyway and voted to offer Mills
a second consent agreement and order identical to the first, except it
doubled the fine to $6,000. As before, Mills refused to sign.
¶6 The legislature has delegated authority to the Board to
conduct evidentiary hearings itself or through an administrative law judge
and resolve complaints or charges within its jurisdiction. See A.R.S.
§ 32-106(A)(5)–(6); see also § 32-106.02(A) (“The [B]oard may initiate a
hearing pursuant to title 41, chapter 6, article 10 on receipt of a complaint
that a person who . . . is not registered . . . is practicing . . . any board
regulated profession or occupation.”). An aggrieved party may appeal an
adverse Board decision to the superior court after exhausting all
administrative remedies. See A.R.S. §§ 32-128(J), 41-1092.08(H). The scope
of that review is governed by A.R.S. § 12-910, which the legislature
amended last year to require de novo review of final decisions by agencies
regulating professions if demanded. See § 12-910(D); see also 2021 Ariz.
Legis. Serv. Ch. 281 (S.B. 1063). The Board has not initiated formal
proceedings against Mills for the alleged statutory violations, and nothing
authorizes Mills to affirmatively seek a determination from the Board that
no violations have occurred. Consequently, whether Mills is required to
register with the Board and has broken the law remains unresolved.
¶7 In December, Mills and SEC (collectively, “Mills”) filed this
lawsuit in superior court against the Board, its members, and its executive
director (collectively, the “Board”), seeking declaratory and injunctive
relief. Mills alleges four causes of action:
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(1) Section 32-145, subsections (1) and (2), both facially and as
applied here, violate the Arizona Constitution, article two, section six, by
preventing him from speaking freely about his business as an engineer
unless he registers as an engineer;
(2) Section 32-101(B)(11), which defines the “engineering
practice” subject to registration, is void for vagueness and violates the
Arizona Constitution’s due process and separation of powers provisions,
see Ariz. Const. art. 2, § 4; art. 3; art. 4, pt. 1, § 1;
(3) Sections 32-141(1) and 32-145(1), as applied here, violate
the Arizona Constitution, article two, sections four and thirteen, and article
four, part two, section 19(13), by prohibiting unregistered engineering
practices and therefore arbitrarily prohibiting Mills from earning a living;
and
(4) Sections 12-910(E) (2018) and 32-106(A)(5), as applied here,
usurp judicial powers by authorizing the Board to adjudicate facts in
violation of the Arizona Constitution, article two, section four and articles
three and six.
¶8 On the Board’s motion, the superior court dismissed the
complaint on two bases: (1) the court lacks subject matter jurisdiction
because Mills failed to exhaust administrative remedies with the Board, see
Ariz. R. Civ. P. 12(b)(1); and (2) the complaint fails to state a claim upon
which relief can be granted because the claims are unripe and Mills lacks
standing to bring them, see Ariz. R. Civ. P. 12(b)(6). The court of appeals
affirmed. Mills v. Ariz. Bd. of Tech. Registration, No. 1 CA-CV 20-0510, 2021
WL 3557298, at *1 (Ariz. App. Aug. 12, 2021) (mem. decision).
¶9 We granted review of Mills’ petition because it presents an
issue of statewide importance.
DISCUSSION
I. Standard of review
¶10 We review the grant of a motion to dismiss de novo. Shepherd
v. Costco Wholesale Corp., 250 Ariz. 511, 513 ¶ 11 (2021). Likewise, we review
issues of jurisdiction, ripeness, and standing de novo as issues of law. See
Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 279 ¶ 34 (2019)
(standing and ripeness); Medina v. Ariz. Dep’t of Transp., 185 Ariz. 414, 417
(App. 1995) (jurisdiction).
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II. Exhaustion of administrative remedies
A. General principles
¶11 A litigant must exhaust a statutorily prescribed
administrative remedy before seeking judicial relief from actual or
threatened injuries. See Moulton v. Napolitano, 205 Ariz. 506, 511 ¶ 9 (App.
2003). The purpose of the exhaustion doctrine is to afford an administrative
agency the opportunity to “perform functions within its special
competence—to make a factual record, to apply its expertise, and to correct
its own errors so as to moot judicial controversies.” Id. (quoting Medina,
185 Ariz. at 417). As a result, “[t]he doctrine promotes both judicial
economy and administrative agency autonomy by preventing premature
judicial intervention in inchoate administrative proceedings.” Id. (quoting
Medina, 185 Ariz. at 417); see also Univar Corp. v. City of Phoenix, 122 Ariz.
220, 223 (1979) (stating the “doctrine is firmly entrenched in Arizona for
such sound reasons as judicial economy and reliance on the expertise of the
administrative body for initial adjudication” (internal citation omitted)).
¶12 A complainant’s failure to exhaust administrative remedies
does not deprive the superior court of subject matter jurisdiction. Moulton,
205 Ariz. at 511 ¶ 9 n.2; Medina, 185 Ariz. at 418. But when the doctrine is
properly raised as an affirmative defense, the court will refuse to adjudicate
the case for the complainant’s failure to satisfy a procedural prerequisite.
Medina, 185 Ariz. at 416, 418; cf. Taliaferro v. Taliaferro, 186 Ariz. 221, 223
(1996) (distinguishing between a court’s authority to proceed and its subject
matter jurisdiction).
B. Application here
¶13 The Board argues Mills must exhaust administrative
remedies by awaiting the initiation and completion of formal proceedings
that would result in either a favorable outcome for Mills or an appealable
adverse decision. It asserts that if Mills is permitted to adjudicate his claims
outside an appeal of the Board’s final decision, it would render superfluous
the statutes authorizing the court to review final agency decisions. See
§§ 12-905(A), 32-106.02(D), 41-1092(6). Relatedly, the Board asserts that
permitting Mills to maintain his lawsuit would violate the legislature’s
constitutional authority to direct the way lawsuits may be brought against
the state. See Ariz. Const. art. 4, pt. 2, § 18. We disagree.
¶14 Most significantly, a litigant is required to exhaust
administrative remedies only if he has access to a statutorily prescribed
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administrative remedy. See Moulton, 205 Ariz. at 511 ¶ 9 (“[I]f parties have
statutory recourse to an administrative agency that has authority to grant
appropriate remedies, they must scrupulously follow the statutory
procedures.” (quoting Hamilton v. State, 186 Ariz. 590, 593 (App. 1996))).
That precondition is lacking here.
¶15 Although Mills could raise his constitutional challenges in an
appeal from the Board’s final administrative decision, see id. at 513 ¶ 20;
§ 12-910(F), it is uncertain whether the Board will make that decision
because it has not initiated formal proceedings against Mills and is not
statutorily required to do so. The court of appeals suggested Mills could
“request formal review of the customer complaint by the Board.” Mills,
2021 WL 3557298, at *2 ¶ 8. But as the Board confirmed at oral argument,
neither the statutes nor the Board’s regulations provide a mechanism for
Mills to request or require review of the customer complaint or the Board’s
investigative results. See § 32-106.02 (empowering only the Board to initiate
formal proceedings that culminate in a final appealable decision).
¶16 If Mills could compel the Board to formally resolve whether
he must register as an engineer, he could then raise his constitutional claims
in an appeal of any adverse decision. Then, we might agree with the Board
and the previous courts that Mills must exhaust those remedies before
initiating this lawsuit. See Mills, 2021 WL 3557298, at *7 ¶ 30. The lack of
an available administrative path for bringing Mills’ claims before the
superior court, however, persuades us that the legislature did not intend an
appeal of a final, adverse Board decision as the exclusive remedy available
to Mills, as the Board suggests. If that were so, after asserting Mills’
statutory violations and assessing escalating fines in proposed consent
agreements, the Board could delay initiating formal proceedings for years
or never initiate proceedings that would culminate in an appealable
decision, leaving Mills in legal limbo, unable to know with certainty
whether he is lawfully required to register as an engineer under §§ 32-141
and -145, as the Board claims. (Indeed, after Mills filed this lawsuit the
Board voted to hold a formal hearing but then rescinded that vote after the
superior court dismissed the complaint.) That consequence would
contradict the UDJA, which authorizes persons affected by a statute to
“have determined any question of construction or validity” of that statute
and “obtain a declaration of rights, status or other legal relations
thereunder.” A.R.S. § 12-1832; see also § 12-1831 (empowering courts to
provide declaratory relief). Nothing in the statutes governing the Board
suggests the legislature intended to deny people in Mills’ situation the
ability to resolve constitutional claims through a declaratory judgment
action if the Board fails to enter a final, appealable decision.
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¶17 Contrary to the statutes governing the Board, statutes
governing other professional boards either require formal proceedings if
informal efforts to resolve issues are unsuccessful or permit the professional
to initiate such proceedings. See, e.g., A.R.S. §§ 32-573(C)–(D) (Barbering
and Cosmetology Board), 32-2934(H) (Board of Homeopathic/Integrated
Medicine Examiners), 32-3442(E)–(F) (Board of Occupational Therapy),
32-1744(D) (Board of Optometry), 32-1927.02(H) (Board of Pharmacy),
32-3052(G)–(H) (Board of Private Postsecondary Education). And unlike
Mills, professionals who resist informal resolution of disputes with these
boards can receive a final hearing and therefore a final, appealable decision.
See, e.g., A.R.S. § 32-2937 (allowing judicial review of final decisions by
Board of Homeopathic/Integrated Medicine Examiners). Requiring the
professional to exhaust administrative remedies in these situations is
warranted because there is a prescribed remedy that, if pursued, would
enable the professional to raise any constitutional claims in a subsequent
appeal to the superior court. See Valley Vendors Corp. v. City of Phoenix,
126 Ariz. 491, 494 (App. 1980) (requiring exhaustion when taxpayer could
file a petition for a hearing with the city auditor to reduce or eliminate a tax
assessment); Campbell v. Chatwin, 102 Ariz. 251, 258 (1967) (requiring
exhaustion when statutes provided mechanism whereby an individual
whose driver license or vehicle registration was administratively
suspended could request an administrative hearing). But absent this
lawsuit, Mills is not assured of resolving his claims because he cannot
compel the Board to issue a final, appealable decision, and indeed that
decision may never be issued.
¶18 We are further persuaded that the exhaustion doctrine does
not preclude Mills’ lawsuit because the court, not the Board, possesses
authority to grant Mills the remedies he seeks: a declaration that the statutes
at issue are unconstitutional either facially or as applied and an injunction
against their enforcement. See Ariz. Indep. Redistricting Comm’n v. Brewer,
229 Ariz. 347, 355 ¶ 34 (2012) (“[W]hen one with standing challenges a duly
enacted law on constitutional grounds, the judiciary is the department to
resolve the issue . . . .”); Moulton, 205 Ariz. at 513 ¶ 20 (“We commit to
administrative agencies the power to determine constitutional
applicability, but we do not commit to administrative agencies the power
to determine constitutionality of legislation.“ (quoting Est. of Bohn v.
Waddell, 174 Ariz. 239, 249 (App. 1992))); see also Manning v. Reilly, 2 Ariz.
App. 310, 312 (1965) (“Legal or constitutional questions concerning the
validity of a zoning ordinance require judicial determination and are
beyond the scope of an administrative body’s powers and authority.”).
Requiring Mills to await a (possible) final Board decision before raising his
constitutional challenges on appeal would be pointless because the Board
7
is powerless to resolve those challenges. See Moulton, 205 Ariz. at 513 ¶ 18
(“[A] litigant should not be required to exhaust administrative remedies
when such an effort would be futile.”); see also S. Pac. Co. v. Cochise County,
92 Ariz. 395, 399–400 (1963) (finding a taxpayer had no obligation to use a
prescribed administrative remedy that could not correct the systemic
undervaluation practices complained about); McCluskey v. Sparks, 80 Ariz.
15, 19 (1955) (concluding the superior court erred by dismissing a suit
challenging constitutionally discriminatory valuation of real property for
taxing purposes because a tax protest before the county board of
equalization and subsequent appeal would not encompass this issue,
making the administrative remedy “no remedy at all”).
¶19 To clarify, the fact that the superior court has original
jurisdiction to adjudicate constitutional challenges to statutes does not
necessarily relieve litigants of their obligation to exhaust administrative
remedies when administrative issues also raise constitutional concerns. See
Ariz. Const. art. 6, § 14 (establishing superior court’s original jurisdiction
over cases). This grant of jurisdiction does not prevent the legislature from
conditioning the court’s exercise of jurisdiction on a litigant’s exhaustion of
administrative remedies. See Est. of Bohn, 174 Ariz. at 246. An agency may
apply constitutional doctrines when resolving claims. See Moulton,
205 Ariz. at 513 ¶ 20. And if constitutional issues exist that can only be
adjudicated by a court but are “‘inextricably intertwined’ with government
benefits for which administrative remedies exist,” courts generally require
exhaustion of those remedies before addressing those issues. See id. at 512
¶ 16; see also Est. of Bohn, 174 Ariz. at 250 (noting that exhaustion could moot
the issue if the agency decides in the complainant’s favor and, if not,
permits the agency to “develop the factual record so that the court will not
have to decide ‘important and difficult’ questions of constitutional law in
the absence of a factual background” (quoting W. E. B. DuBois Clubs of Am.
v. Clark, 389 U.S. 309, 312 (1967))); St. Mary’s Hosp. & Health Ctr. v. State,
150 Ariz. 8, 10–11 (App. 1986) (requiring exhaustion where “violations of
state and federal statutes and regulations, [and] constitutional provisions”
were “inextricably intertwined with the claims for nonpayment for medical
and hospital services provided”).
¶20 But the legislature has not conditioned the superior court’s
authority to adjudicate constitutional challenges to the statutes here on a
complainant’s exhaustion of administrative remedies. See Est. of Bohn,
174 Ariz. at 245–46. As previously described, a complainant like Mills has
no statutorily prescribed administrative remedy to pursue. Also, by
adopting the UDJA, the legislature empowered the courts to “declare
rights, status, and other legal relations,” § 12-1831, including deciding
8
whether statutes are unconstitutional, see Pena v. Fullinwider, 124 Ariz. 42,
44 (1979) (involving declaratory judgment suit to challenge
constitutionality of legislation).
¶21 This Court’s opinion in State Board of Technical Registration v.
McDaniel, 84 Ariz. 223 (1958), supports our conclusion that appeal of a
Board’s final decision is not an exclusive remedy. There, the Board initiated
disciplinary proceedings against McDaniel, a registered structural
engineer, for three charged statutory violations. Id. at 226. The week before
a scheduled hearing, McDaniel obtained an extraordinary writ of
prohibition (what we today call “special action relief,” see Ariz. R.P. Spec.
Act., Refs. & Annos., editors’ notes) enjoining the Board from pursuing
those charges because the Board lacked jurisdiction over two charges and
the statutory basis for the third charge was unconstitutional. McDaniel, 84
Ariz. at 227. On appeal, although not directly addressing the exhaustion
doctrine, this Court rejected the Board’s argument that McDaniel was not
entitled to the writ because he had a “plain, speedy and adequate remedy
by appeal” of the Board’s decision. Id. at 227–28. The Court reasoned that
appealing a final Board decision “is [not], in all cases, the exclusive and . . .
adequate remedy for a registrant” wishing “to attack the jurisdiction and
action of the Board,” although that procedure should typically be followed.
Id. The Court concluded that the superior court did not abuse its discretion
in accepting jurisdiction to issue the writ due to several factors, including
the fact that questions existed about the constitutionality of the statutory
provisions and the Board’s jurisdiction. See id. at 228.
¶22 In sum, because Mills does not have a prescribed
administrative remedy to pursue by which to raise his constitutional claims,
his lawsuit is not precluded by the exhaustion of remedies doctrine, and the
superior court erred by dismissing his complaint on this basis.
III. Standing and ripeness
A. General principles
¶23 Unlike the federal constitution, “the Arizona Constitution
does not have a case or controversy requirement.” See Brush & Nib,
247 Ariz. at 279 ¶ 35. Nevertheless, we apply the doctrines of standing and
ripeness as a matter of judicial restraint to ensure courts “refrain from
issuing advisory opinions, that cases be ripe for decision and not moot, and
that issues be fully developed between true adversaries.” City of Surprise v.
Ariz. Corp. Comm’n, 246 Ariz. 206, 209 ¶ 8 (2019) (quoting Bennett v.
Brownlow, 211 Ariz. 193, 196 ¶ 16 (2005)).
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¶24 Standing and ripeness are both prudential doctrines. See
Brush & Nib, 247 Ariz. at 280 ¶ 36; Bennett v. Napolitano, 206 Ariz. 520, 524
¶ 16, 527 ¶ 31 (2003). A plaintiff has standing to bring an action if it alleges
a “distinct and palpable injury”; a generalized harm shared by all or by a
large class of people is generally insufficient. Sears v. Hull, 192 Ariz. 65, 69
¶ 16 (1998). Ripeness reflects the judiciary’s reluctance to adjudicate
hypothetical or abstract questions. Ariz. Downs v. Turf Paradise, Inc.,
140 Ariz. 438, 444 (App. 1984). As a general matter, a case is ripe if the
plaintiff has incurred an injury or there is an actual controversy between
the parties. Brush & Nib, 247 Ariz. at 280 ¶ 36.
¶25 Although the UDJA is remedial and therefore liberally
construed, the standing and ripeness doctrines apply to complaints
initiated under the act. See id. at 279–81 ¶¶ 33–41; Citizens’ Comm. for Recall
of Jack Williams v. Marston, 109 Ariz. 188, 192 (1973); see also Bd. of Supervisors
of Maricopa Cnty. v. Woodall, 120 Ariz. 379, 380 (1978) (stating that a
declaratory judgment action must involve a “justiciable controversy,”
which arises when there is “an actual controversy ripe for adjudication”
and the parties have “a real interest in the questions to be resolved”). Facts
pleaded in a complaint must therefore “show a present existing controversy
which permits the court to adjudicate any present rights,” and not merely
allege “an intent to do certain things in the future all of which are
dependent upon future events and contingencies within control of the
[plaintiff].” Moore v. Bolin, 70 Ariz. 354, 358 (1950).
B. Application
¶26 The Board argues Mills lacks standing to bring this lawsuit
and his claims are unripe because a factual dispute exists whether Mills is
required to register as an engineer and unless and until the Board formally
resolves that dispute, any injury to Mills is speculative and thus
nonjusticiable under the UDJA. See Brush & Nib, 247 Ariz. at 280 ¶ 39
(rejecting wedding invitation designers’ challenge to constitutionality of
city ordinance precluding discrimination on the basis of sexual orientation
as applied to some of plaintiffs’ products as that challenge “implicate[d] a
multitude of possible factual scenarios too ‘imaginary’ or ‘speculative’ to be
ripe” (quoting Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139
(9th Cir. 2000))). With one exception described later, we disagree.
¶27 First, factfinding by the Board is not required for the court to
resolve Mills’ claims. Contrary to the court of appeals’ assertion, see Mills,
2021 WL 3557298, at *4 ¶ 18, *6 ¶ 28, Mills challenges the facial
constitutionality of § 32-145(1)-(2). No factfinding is required to resolve
10
that issue, and whether Mills is actually required to register as an engineer
does not impact that resolution. See Hernandez v. Lynch, 216 Ariz. 469, 471
¶ 7 (App. 2007) (stating that whether a proposition is facially
unconstitutional is not dependent on the facts of a specific case).
¶28 Resolution of Mills’ remaining as-applied and void for
vagueness challenges depends in part on whether he engages in an
“engineering practice” under § 32-101(B)(11) and has therefore violated
§§ 32-141 and 32-145. See Brush & Nib, 247 Ariz. at 295 ¶ 111 (resolving an
as-applied challenge to an ordinance based on the facts unique to the case);
State v. Tocco, 156 Ariz. 116, 119 (1988) (stating that ordinarily a person
whose conduct clearly falls within the valid portion of a statute may not
challenge the statute for vagueness). But the superior court can resolve
factual disputes as necessary to declare Mills’ rights and obligations under
the law. See Brush & Nib, 247 Ariz. at 278 ¶ 24 (noting an evidentiary
hearing conducted in declaratory judgment action).
¶29 Second, Mills is not required to suffer an actual injury before
his claims become justiciable. The key inquiry in the absence of actual
injury is whether an actual controversy exists between the parties. See id.
at 280 ¶¶ 36-39 (concluding that wedding invitation designers’ claims were
ripe regarding custom invitations as designers faced a real threat of
prosecution for refusing to create such invitations for a same–sex wedding);
Planned Parenthood Comm. of Phx., Inc. v. Maricopa County, 92 Ariz. 231, 233
n.1 (1962) (stating an “actual controversy” existed that justified a non-profit
clinic’s declaratory judgment action challenging a penal statute prohibiting
publication of birth control methods because “the threat of prosecution by
governmental officials ha[d] curtailed” the clinic’s activities). We conclude
that an actual controversy exists regarding Mills’ first through third causes
of action, but not for the fourth cause of action.
¶30 The initial three causes of action relate to an existing threat to
Mills’ right to speak freely about his business, his right to be clearly advised
about what type of engineer must be registered, and his right to earn a
living. The Board has investigated and determined that Mills is violating
§§ 32-141 and -145 by not registering as an engineer. It has offered to
informally resolve the dispute only if Mills admits the violation, pays a
substantial fine, and stops working as an engineer unless he registers with
the Board. Violating §§ 32-141 and -145 is a class two misdemeanor, which
can result in incarceration and fines. See §§ 13-707(A)(2), 13-802(B),
32-145(6). Just as the wedding invitation designers in Brush & Nib and the
non-profit clinic in Planned Parenthood were not required to await
prosecution before bringing their declaratory judgment complaints, Mills is
11
not required to do so here. The controversy with the Board is an actual one
based on presently existing facts, despite the Board’s failure to proceed with
formal proceedings. See Moore, 70 Ariz. at 358. Mills has a real and present
need to know whether the pertinent statutes are constitutional and can
therefore prevent him from continuing to work as an engineer without
registering with the Board. See § 12-1832 (permitting declaratory relief for
persons whose rights are “affected by a statute”). These claims are
justiciable.
¶31 We reach a contrary decision concerning the fourth cause of
action. There, Mills seeks a declaration that, as applied to the determination
and adjudication of private rights, §§ 12-910(E) (2018) and 32-106(A)(5)
combine to establish an unconstitutional delegation of judicial power to an
administrative board. But because the Board has not initiated formal
proceedings, Mills is not affected by the Board’s adjudicative processes, and
an actual controversy does not exist regarding this claim. That claim is
speculative and should be left to be developed by true adversaries. See City
of Surprise, 246 Ariz. at 209 ¶ 8.
¶32 In sum, causes of action one through three in Mills’ complaint
are justiciable, and the superior court erred by dismissing them as
nonjusticiable. The fourth cause of action is unripe, and the court therefore
correctly dismissed it.
IV. Issues not before us
¶33 The Board alternatively argues we should affirm the superior
court’s dismissal of the complaint on two independent bases. First, it
asserts Mills is precluded from maintaining his lawsuit because he failed to
lodge a notice of claim, as required by A.R.S. § 12-821.01(A). Second, it
asserts the Board is a non-jural entity that cannot be sued outside an appeal
from a final Board decision. We did not accept review of these issues, and
we therefore decline to address them.
CONCLUSION
¶34 For the foregoing reasons, we reverse the court of appeals’
memorandum decision. We affirm the superior court’s judgment in part,
reverse in part, and remand for further proceedings.
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