Arizona Department of Economic Security v. Holland , 120 Ariz. 371 ( 1978 )

120 Ariz. 371 (1978) 586 P.2d 216

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellant,
v.
A. Jay HOLLAND, Appellee.

No. 2 CA-CIV 2851.

Court of Appeals of Arizona, Division 2.

October 17, 1978.

John A. LaSota, Jr., Atty. Gen. by C. Eileen Bond, Asst. Atty. Gen., Phoenix, for appellant.

Southern Arizona Legal Aid, Inc. by Leslie A. Nixon, Tucson, for appellee.

OPINION

RICHMOND, Chief Judge.

Appellee filed a complaint in superior court seeking review of a final decision of the Arizona Department of Economic Security (DES) denying him unemployment insurance compensation. A responsive pleading was filed by DES and a judgment was subsequently entered reversing its decision. Approximately four months later, DES filed a motion to vacate the judgment on the ground that it was void. The motion was denied and this appeal followed. We agree with DES that the superior court lacked jurisdiction to entertain appellee's appeal from the administrative decision and reverse.

A.R.S. § 12-904 requires that an action to review a final administrative decision be commenced within 35 days from the date when a copy of the decision sought to be reviewed is served upon the party affected. It is undisputed that appellee's complaint was not filed within this time requirement. In opposition to the motion to vacate, he argued that A.R.S. § 12-904 is merely a statute of limitations rather than a jurisdictional requirement and that appellant, by failing to plead such defense, had waived it.

Appellee has cited no authority for his position. Independent research has disclosed but one case holding that the statutory period for filing a civil action to review an administrative decision is one of limitation, rather than jurisdiction. Diva Laboratorium Aktiengesellschaft v. DeLoney and Company, 237 F. Supp. 868 (D.D.C. 1965). The weight of authority is otherwise — compliance with the statutory requirement as to appeal time is a jurisdictional prerequisite to judicial review of an administrative decision. See, e.g., Varnes v. Lentz, 30 Ill. App. 3d 806, 332 N.E.2d 639 (1975); Brooks v. Dierker, 275 Or. 619, 552 P.2d 533 (1976).

Judicial review of administrative decisions is not a matter of right except when authorized by law. Allen v. Graham, 8 Ariz. App. 336, 446 P.2d 240 (1968). Appeal being a statutory privilege, jurisdictional requirements prescribed by statute must be strictly complied with to achieve entrance to appellate review. City of Tucson v. Wondergem, 4 Ariz. App. 291, 419 P.2d 552 (1966). We hold that appellee's failure to file his complaint in superior court within 35 days deprived that court of jurisdiction to review the decision of DES. When a judgment is void for lack of jurisdiction, the court has no discretion to refuse to vacate the judgment. Preston v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963).

The order denying the motion to vacate the judgment is reversed with directions to enter an order dismissing the complaint.

HOWARD and HATHAWAY, JJ., concur.