Starr v. Az Bof ( 2021 )

IN THE
ARIZONA COURT OF APPEALS
DEPARTMENT ONE
SANDRA K. STARR, Appellant,
v.
ARIZONA BOARD OF FINGERPRINTING, Appellee.
No. 1 CA-CV 20-0432
FILED 8-5-2021
Appeal from the Superior Court in Maricopa County
No. LC2020-000050-001
The Honorable Douglas Gerlach, Judge (retired)
AFFIRMED
COUNSEL
Burns, Nickerson & Taylor, PLC, Phoenix
By Neal C. Taylor
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Eric Schwarz and Dena R. Benjamin
Counsel for Defendant/Appellee
STARR v. AZ BOF
Opinion of the Court
OPINION
Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop1 joined.
M c M U R D I E, Judge:
¶1 Sandra K. Starr appeals from the superior court’s dismissal of
her appeal from the Arizona Board of Fingerprinting’s (“Board”) refusal to
consider whether she is eligible for a fingerprint clearance card. We affirm
the superior court’s dismissal and hold: (1) the Board lacks subject matter
jurisdiction to review a determination by the Department of Public Safety’s
Fingerprinting Division (“Department”) that Starr is ineligible to receive a
fingerprint clearance card; and (2) Starr may seek review of the
Department’s criminal offense determination under Arizona’s
Administrative Procedure Act because the time to seek review has not
begun to accrue.
FACTS AND PROCEDURAL BACKGROUND
¶2 After being offered a promotion that required a background
clearance in 2016, Starr applied to the Department for a fingerprint
clearance card. The Department denied Starr’s application but informed her
she might be eligible to apply for a “good cause exception” with the Board,
a separate body independent of the Department. The Department based its
denial on Starr’s felony conviction in 2002 for abandoning or endangering
a child under Texas Penal Code § 22.041. The Department classified her
conviction as child neglect, which made her eligible to apply to the Board
for a good cause exception. A.R.S. § 41-1758.03(C)(48). Starr did not
1 Judge Lawrence F. Winthrop was a sitting member of the court when
the matter was assigned to this panel. He retired effective June 30, 2021. In
accordance with the authority granted by Article 6, Section 3, of the Arizona
Constitution and A.R.S. § 12-145, the Chief Justice of the Arizona Supreme
Court designated Judge Winthrop as a judge pro tempore in the Court of
Appeals, Division One, for the purpose of participating in the resolution of
cases assigned to the panel during his term in office.
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Opinion of the Court
challenge the Department’s classification of her conviction, nor did she seek
a good cause exception with the Board.
¶3 In 2017, Starr again applied for a fingerprint clearance card,
and the Department again denied her application based on the Texas
conviction. This time the Department classified the Texas conviction as
child abuse, which per se rendered her ineligible to apply for a good cause
exception. See A.R.S. § 41-1758.03(B)(10). Starr nevertheless applied for a
good cause exception with the Board. The Board responded that she was
ineligible to apply for a good cause exception based on the Department’s
classification of the Texas conviction as child abuse. Starr did not attempt
to challenge either the Department’s classification or the Board’s response.
¶4 In 2019, after earning a new degree and starting a new career,
Starr still needed a background clearance, so she applied a third time for a
fingerprint clearance card from the Department. The Department again
denied her application based on the Texas conviction, which it again
classified as child abuse. Starr applied once more for a good cause exception
with the Board. And the Board again informed her she was ineligible to
apply for a good cause exception due to the Department’s classification of
her offense as child abuse.
¶5 Starr filed a judicial review action in the superior court under
the Administrative Review Act, A.R.S. §§ 12-901 to -914, challenging the
Board’s 2019 refusal to consider her application for a good cause exception
or review the Department’s classification of the Texas conviction. In a final
Rule 54(c) judgment, the superior court dismissed Starr’s complaint,
finding that it did not have jurisdiction because Starr was effectively
seeking review of decisions issued in 2017, which she failed to appeal
timely. Starr appealed to this court, and we have jurisdiction under A.R.S.
§ 12-913. See Svendsen v. Ariz. Dep’t of Transp., Motor Vehicle Div., 234 Ariz.
528, 533, ¶ 13 (App. 2014); see also Brumett v. MGA Home Healthcare, LLC, 240
Ariz. 421, 431, ¶ 23 (App. 2016).
DISCUSSION
¶6 Starr argues she was entitled to a hearing before the Board to
determine whether the Department correctly classified her Texas
conviction. Starr asserts the Board is more suited to determine whether the
conviction is similar to child neglect or child abuse because it can consider
more information than the Department. In Starr’s view, the Board’s
authority to review the classification stems from the relevant statutes: (1) a
requirement in A.R.S. § 41-1758.01(A)(4) that the Department inform every
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Opinion of the Court
applicant that they can apply for a good cause exception with the Board;
and (2) the requirement in A.R.S. § 41-619.55(C) and (E) that individuals
seeking a good cause exception demonstrate they have no offense in their
records that would render them ineligible for a fingerprint clearance card.
Starr concludes that without this avenue for review of the Department’s
classification through the Board, she is left with no meaningful due process
or remedy to address the Department’s asserted error.
¶7 After examining the statutory scheme, we conclude the
superior court correctly dismissed Starr’s appeal for lack of subject matter
jurisdiction, albeit for different reasons than the court expressed.
A. The Board Lacked Subject Matter Jurisdiction to Review the
Department’s Classification of Starr’s Texas Conviction under
A.R.S. § 41-1758.03(B).
¶8 We determine subject-matter jurisdiction and questions of
statutory interpretation de novo. Lay v. Nelson, 246 Ariz. 173, 175, ¶ 8 (App.
2019) (subject-matter jurisdiction); BMO Harris Bank, N.A. v. Wildwood Creek
Ranch, LLC, 236 Ariz. 363, 365, ¶ 7 (2015) (statutory interpretation). We are
not bound by the superior court’s legal conclusions and may affirm the
court if it reached the correct result even if it did so for different reasons.
Collins v. State, 166 Ariz. 409, 413, n.1 (App. 1990).
¶9 In reviewing the statutes governing fingerprint clearance
cards, our objective is to “effectuate the legislature’s intent,” and the best
indicator of that intent is their plain language. SolarCity Corp. v. ADOR, 243
Ariz. 477, 480, ¶ 8 (2018). “When the plain text of a statute is clear and
unambiguous there is no need to resort to other methods of statutory
interpretation to determine the legislature’s intent because its intent is
readily discernible from the face of the statute.” State of Netherlands v. MD
Helicopters Inc., 248 Ariz. 533, 538, ¶ 13 (App. 2020) (quoting Estate of Braden
ex rel. Gabaldon v. State, 228 Ariz. 323, 325, ¶ 8 (2011)).
¶10 When interpreting the language of statutes, we construe the
words and phrases “according to the common and approved use of the
language.” A.R.S. § 1-213. “Statutory terms, however, must be considered
in context.” Estate of Braden, 228 Ariz. at 325, ¶ 8. We must also construe
statutory provisions “in light of their place in the statutory scheme so they
may be harmonious and consistent.” State v. Flynt, 199 Ariz. 94, ¶ 5 (App.
2000) (citation omitted) (quotations omitted). When statutes relate to the
same subject matter—that is, when they are in pari materia—they should be
“construed together . . . as though they constituted one law.” State ex rel.
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Opinion of the Court
Larson v. Farley, 106 Ariz. 119, 122 (1970). In such situations, “legislative
intent . . . must be ascertained not alone from the literal meaning of the
wording of the statutes but also from the view of the whole system of
related statutes.” Id.
1. Under the Statutory Scheme Governing Fingerprint
Clearance Cards, the Board Does Not Have Authority to
Review the Department’s Classification of Offenses.
¶11 In Arizona, for many designated occupations or professions,
an individual who seeks employment must acquire a fingerprint clearance
card. See A.R.S. § 41-1758.01(A)(1) (listing the statutes requiring fingerprint
background checks and fingerprint clearance cards). There are two types of
fingerprint clearance cards: (1) standard fingerprint clearance cards, A.R.S.
§ 41-1758.03; and (2) “level 1” fingerprint clearance cards, A.R.S.
§ 41-1758.07. Two distinct, independent entities are vested with the
statutory authority over the administration and issuance of fingerprint
clearance cards: the Department and the Board. See A.R.S. § 41-1758.01
(establishing the fingerprinting division within the Department of Public
Safety); A.R.S. § 41-619.52(A) (establishing the Board).
i. The Department’s Statutory Duties
¶12 The Department’s relevant duties are outlined in A.R.S.
§§ 41-1758 to -1758.08. Under these statutes, the Department is responsible
for determining an applicant’s eligibility for either type of fingerprint
clearance card and issuing it.
¶13 An individual seeking a fingerprint clearance card must
provide a completed application along with fingerprints and a fee to the
Department, which then conducts a state and federal criminal history
records check. A.R.S. § 41-1758.02. Upon receiving the individual’s criminal
history records, the Department compares the individual’s arrest records to
two lists of criminal offenses. A.R.S. § 41-1758.03(B), (C); see also A.R.S.
§ 41-1758.07(B), (C) (same for level 1 fingerprint clearance card). The
Department must also consider whether any out-of-state offenses contained
in the arrest records are “the same or similar” to those listed in subsections
B and C of A.R.S. §§ 41-1758.03 and -1758.07. Based on the results of these
comparisons, the Department must make one of four decisions.
¶14 First, if the Department finds the individual is not “awaiting
trial” and has not “been convicted of committing or attempting, soliciting,
facilitating or conspiring to commit” any of the offenses on either list, the
Department must issue the person a fingerprint clearance card. A.R.S.
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Opinion of the Court
§§ 41-1758.03(A), -1758.07(A). Second, if the Department finds an offense
that is the same or similar to one listed in subsection B of A.R.S.
§§ 41-1758.03 or -1758.07, the Department must deny the application and
the individual “is precluded from receiving a [fingerprint clearance card].”
See also A.R.S. § 41-1758.04(A). Third, if the Department finds an offense
that matches any listed in subsection C of A.R.S. §§ 41-1758.03 or -1758.07,
it must deny the application, but the individual “may petition the [Board]
for a good cause exception.” See also A.R.S. § 41-1758.04(A).
¶15 Finally, if the Department cannot determine within 30
business days whether an offense meets the criteria of subsections B or C,
the Department cannot issue the individual a fingerprint clearance card, but
the individual may petition the Board for a good cause exception. A.R.S.
§§ 41-1758.03(L), -1758.07(L); see also A.R.S. § 41-1758.04(A).
¶16 Whenever the Department determines it cannot issue a
fingerprint clearance card, it must inform the individual of “the criminal
history information on which the denial was based.” A.R.S.
§ 41-1758.01(A)(5). Likewise, if the Department does not issue a card, it
must inform the individual “of the right to petition the [Board] for a good
cause exception pursuant to [A.R.S. §§] 41-1758.03, 41-1758.04, or
41-1758.07.” A.R.S. § 41-1758.01(A)(4).
ii. The Board’s Statutory Duties
¶17 The Board is composed of six members appointed by the
heads of five agencies and the chief justice of the Arizona Supreme Court,
and its duties are specified in A.R.S. §§ 41–619.51 to -619.57 and Arizona
Administrative Code (“A.A.C.”) R13-11-102 to -114. The Board is
responsible for deciding whether individuals should receive a fingerprint
clearance card despite having committed any of the disqualifying offenses
identified by the Department under subsections C and L of A.R.S.
§§ 41-1758.03 and -1758.07—otherwise known as granting a “good cause
exception.” A.R.S. § 41-619.53(A)(1); A.R.S. § 41-619.51(5).
¶18 An individual seeking a good cause exception must apply
with the Board within one year of the Department’s decision to deny a
fingerprint clearance card. A.A.C. R13-11-104(A). Once an application is
received, the Board must conduct an “expedited review” to determine
whether the applicant should be granted a good cause exception without a
hearing. A.R.S. § 41-619.55(A). If an applicant fails to qualify for a good
cause exception under the expedited review but is nevertheless qualified to
seek a good cause exception, the Board must hold a hearing on the matter.
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A.R.S. § 41-619.55(B). Under either scenario, the Board must consider
whether the applicant has shown that they are not “awaiting trial on or
[have] not been convicted of committing” any of the offenses listed in
subsection B of A.R.S. §§ 41-1758.03 and -1758.07. A.R.S. § 41-619.55(C), (E).
¶19 In deciding whether to grant a good cause exception, the
Board must consider whether the applicant has “successfully rehabilitated
and is not a recidivist” regarding an offense in their criminal record. Id. In
doing so, the Board must also consider six non-exhaustive factors
addressing the nature and circumstances of the offense and the extent of the
applicant’s rehabilitation. A.R.S. § 41-619.55(C), (E)(1)–(6).
iii. The Board and Department’s Obligations Are
Limited and Defined by the Statutes.
¶20 Once the Board grants a good cause exception, it must make
a written request to the Department to issue the applicant a fingerprint
clearance card. A.R.S. § 41-619.55(F). If the Board makes a request, the
Department must issue the fingerprint clearance card unless a new
precluding offense is identified in the interim. A.R.S. §§ 41-1758.03(E),
(G)(2), -1758.07(E), (G)(2).
¶21 Interpreting the statutory powers of the Department and the
Board outlined above as one body of law, Larson, 106 Ariz. at 122, we
conclude the Board does not have the authority to review or overrule the
Department’s classification of offenses. Instead, the Department and the
Board exercise complementary but ultimately independent functions
within the process for issuing fingerprint clearance cards.
¶22 The Department is tasked with determining an individual’s
threshold eligibility for a fingerprint clearance card by classifying the
offenses listed in their arrest records under the categories provided by
A.R.S. §§ 41-1758.03 and -1758.07. Because these statutes expressly identify
which crimes allow an individual to “petition the [Board] for a good cause
exception” and which do not, the Department has exclusive authority to
decide whether an individual qualifies to seek a good cause exception. See
A.R.S. §§ 41-1758.03(B)–(C), (L), -1758.07(B)–(C), (L).
¶23 On the other hand, the Board’s sole responsibility concerning
fingerprint clearance cards is to “determine good cause exceptions.” A.R.S.
§§ 41-619.53(A)(1), -619.55(A). Once the Department concludes that an
individual may seek a good cause exception under subsections C or L of
A.R.S. §§ 41-1758.03 or -1758.07, the Board has exclusive authority to decide
whether a fingerprint clearance card should be issued.
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Opinion of the Court
¶24 Given that the express and only purpose of the Board in the
process is to determine good cause exceptions, there is simply no indication
that the legislature intended the Board to sit as an appellate body reviewing
decisions by the Department. Critically, nothing in the statutes or
administrative regulations defining the Board’s powers and obligations
authorize the Board to hear a challenge to the Department’s classification
of an offense or overrule such a classification. Absent an express provision
permitting the Board to review the Department’s exercise of its authority
under A.R.S. §§ 41-1758.03 and -1758.07, we decline to interpret the Board’s
authority over good cause exceptions to include the power to do so. Cf. State
Tax Comm’n v. Miami Copper Co., 74 Ariz. 234, 237 (1952) (“[T]he right of
appeal exists solely by virtue of express constitutional or statutory
provision. In other words, an appeal is a privilege granted by the
constitution or statute and in the absence of an express provision granting
the right, none exists.”); see also Knape v. Brown, 86 Ariz. 158, 159 (1959).
2. Starr’s Reliance on A.R.S. §§ 41-1758.01(A)(4) and -619.55(C)
and (E) is Misplaced.
¶25 Starr nevertheless asserts that several provisions of the
statutes governing the Board and the Department implicitly vest the Board
with the power to review and override the Department’s classification of
offenses. Starr first points to A.R.S. § 41-1758.01(A)(4), which requires the
Department to inform every person who applies for and is denied a
fingerprint clearance card of the right to petition the Board for a good cause
exception. Starr also identifies subsections C and E of A.R.S. § 41-619.55,
which require the Board to consider whether an applicant has shown that
their criminal history contains no offense that would render them ineligible
for a good cause exception. Starr concludes that these provisions authorize
the Board to (1) consider her petition for a good cause exception despite the
Department’s classification of her Texas conviction as child abuse under
subsection B of A.R.S. § 41-1758.03; (2) decide the Department incorrectly
classified the offense; and (3) grant a good cause exception and order the
Department to issue her a fingerprint clearance card. We address each of
these positions in turn.
¶26 As Starr asserts, A.R.S. § 41-1758.01(A)(4) requires the
Department to inform “each person who submits fingerprints . . . of the
right to petition the [Board] for a good cause exception.” But the fact that
the Department must inform every applicant that the law allows a
petitioner to seek a good cause exception does not grant every applicant the
right to file such a petition. Indeed, Starr’s argument ignores the rest of the
provision, which expressly limits the referenced right to seek a good cause
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Opinion of the Court
exception as “pursuant to” A.R.S. §§ 41-1758.03, -1758.04, and -1758.07.
Thus, A.R.S. § 41-1758.01(A)(4) cannot be read to extend the right to seek a
good cause exception beyond the circumstances specified in those statutes
or to alter the division between offenses that permit an individual to seek a
good cause exception and those that do not.
¶27 Starr’s reliance on A.R.S. § 41-619.55(C) and (E) is also
misplaced. Although these provisions require the Board to consider
whether an applicant has shown that his or her criminal history does not
contain a disqualifying offense under subsection B of A.R.S. §§ 41-1758.03
and -1758.07, they are expressly confined to the Board’s
good-cause-exception analysis. They do not authorize the Board to review
the Department’s classification of offenses.
¶28 Instead, the cited provisions apply only to offenses that the
Department has not already classified. Thus, for example, when the
Department cannot classify an offense, the applicant may apply to the
Board for a good cause exception. A.R.S. §§ 41-1758.03(L), -1758.07(L). In
that limited circumstance, A.R.S. § 41-619.55(C) and (E) permit the Board to
decide whether the applicant has committed a disqualifying offense under
§§ 41-1758.03(B) or -1758.07(B). They also allow the Board to address any
crimes that the Department’s investigation may have inadvertently omitted
or any new charges the applicant may have incurred in the period between
the Department’s determination and the Board’s review. Thus, interpreting
subsections C and E of A.R.S. § 41-619.55 in this manner aligns it with the
express purpose of the Board—to determine good cause exceptions—and
harmonizes them with the Department’s authority under A.R.S.
§§ 41-1758.03 and -1758.07. See Larson, 106 Ariz. at 122.
¶29 Starr’s argument—that the Board has broad power to classify
any offense listed in an applicant’s criminal record—disregards the primary
distinction the statutes draw between the consequences of a prior offense
listed in subsection (B) of §§ 41-1758.03 or -1758.07 and one listed in
subsection (C) of the same statutes. Under §§ 41-1758.03(B) and -1758.07(B),
an applicant who has committed a listed offense “is precluded from
receiving a fingerprint clearance card pursuant to this section.” By contrast,
when an applicant has committed an offense listed in (C), the applicant “is
precluded from receiving a fingerprint clearance card, except that the person
may petition the [Board] for a good cause exception pursuant to § 41-619.55.”
(Emphasis added.) In other words, §§ 41-1758.03(B) and -1758.07(B) provide
no exceptions: an applicant with a prior offense listed in subsection (B) is
absolutely precluded from receiving a fingerprint clearance card. An
applicant with an offense listed in (C) is also “precluded,” but in such a
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case, the statute specifies that the applicant may petition the Board for a
good cause exception. A.R.S. §§ 41-1758.03(C) and -1758.07(C). In short, if
the legislature had intended to permit an applicant with an offense the
Department has classified under subsection (B) to petition the Board for a
good cause exception under § 41-619.55, it would have said so. Starr’s
interpretation of A.R.S. §§ 41-1758.01(A)(4) and -619.55(C) and (E) would
render meaningless the explicit textual distinctions made in A.R.S.
§§ 41-1758.03 and -1758.07 between those offenses that allow a petition to
the Board for a good cause exception and those that do not, a result we must
avoid. See Associated Aviation Underwriters v. Wood, 209 Ariz. 137, 178, ¶ 141
(App. 2004) (courts must avoid interpretation of statutes that renders a term
meaningless). Accordingly, the Board cannot review or overturn the
Department’s classification of offenses under A.R.S. §§ 41-1758.03
and -1758.07.
3. Because the Board Lacked Jurisdiction to Review the
Department’s Classification of Starr’s Prior
Conviction, the Court Lacked Jurisdiction to
Consider the Appeal.
¶30 Based on this interpretation of the statutory scheme
governing fingerprint clearance cards, we now turn to its application to this
case. The Department determined that Starr’s Texas conviction was similar
to a crime listed in A.R.S. § 41-1758.03(B). As a result, Starr was precluded
from receiving a standard fingerprint clearance card and could not petition
for a good cause exception from the Board. Compare A.R.S. § 41-1758.03(B)
with A.R.S. § 41-1758.03(C). Because the Board lacked authority to review
or override a decision by the Department, Starr’s appeal to the superior
court asked the court for relief it had no power to grant.
¶31 The superior court’s jurisdiction to review an administrative
agency decision derives from that of the agency from which the appealed
decision arises. See Berry v. Ariz. State Land Dep’t., 133 Ariz. 325, 326 (1982)
(“If the administrative agency has no jurisdiction to consider a question, the
appellate court has none.”). Thus, because the Board did not have the power
to review the Department’s decision to classify Starr’s offense under A.R.S.
§ 41-1758.03(B), the superior court had no jurisdiction to hear her appeal
and correctly dismissed it, albeit for different reasons.
¶32 Although the superior court characterized its decision to
dismiss Starr’s appeal from the 2019 decision from the Board based on her
failure to appeal the 2017 decision as a matter of appellate jurisdiction, its
analysis was more akin to an application of issue preclusion, which “bars a
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party from relitigating an issue identical to one he has previously litigated
to a determination on the merits in another action.” Barassi v. Matison, 134
Ariz. 338, 340 (App. 1982). Issue preclusion, however, has limited relevance
to the statutory scheme governing the Board, which contemplates a
continuing inquiry that may be relitigated as an individual takes steps
towards successfully rehabilitating and reducing the possibility of
recidivism. See A.R.S. § 41-619.55(C), (E); see also Olesen v. Daniel, 251 Ariz.
25, 29, ¶ 23 (App. 2021) (a subsequent claim is not precluded when “the
statute explicitly invites the offending parent to present evidence of a
change in circumstances”).
B. The Department’s Offense Classification under A.R.S.
§§ 41-1758.03 and -1758.07 is Subject to Review Under Arizona’s
Administrative Procedure Act.
¶33 Because the Board lacks jurisdiction to review the
Department’s classifications of offenses, we must address Starr’s final
contention that such a result leaves her without any means to remedy the
Department’s allegedly erroneous classification of her Texas conviction
under A.R.S. § 41-1758.03(B).
¶34 We agree with Starr that the Department’s authority to issue
or deny fingerprint clearance cards based on its classification of an
individual’s criminal history must be subject to timely and effective review
as a matter of procedural due process under the Fourteenth Amendment of
the United States Constitution. Our supreme court has repeatedly held “one
may not be excluded by state action from a business, profession or
occupation in a manner or for reasons which contravene the due process
clause of the [Fourteenth Amendment].” Application of Levine, 97 Ariz. 88,
91 (1964). Although acquiring a fingerprint clearance card does not “entitle
a person to employment,” A.R.S. §§ 41-1758.03(P), -1758.07(R), the
Department’s decision to deny a fingerprint card guarantees exclusion from
employment with numerous occupations and professions within Arizona.
See A.R.S. § 41-1758.01(A)(1). Due process, therefore, requires that those
denied a fingerprint clearance card by the Department be provided “the
opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong
v. Manzo, 380 U.S. 545, 552 (1965)); see also Wassef v. Ariz. State Bd. of Dental
Examiners ex rel. Hugunin, 242 Ariz. 90, 93, ¶ 13 (App. 2017) (summary
suspension of license satisfies procedural due process so long as “the
licensee subsequently receives a prompt and adequate opportunity to be
heard”).
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¶35 To assist us in addressing this issue, we ordered the parties to
provide supplemental briefing identifying what existing procedures allow
an individual in Starr’s position to challenge the Department’s offense
classification under A.R.S. §§ 41-1758.03 and -1758.07. Accordingly, after
reviewing the parties’ supplemental briefs, we conclude that an individual
aggrieved by the Department’s classification may seek review according to
the uniform administrative hearing procedures (“Uniform Procedures”)
provided by Arizona’s Administrative Procedure Act (“Act”), A.R.S.
§§ 41-1092 to -1092.12.
¶36 For all agencies not specifically exempt from its provisions,
the Act establishes the process by which an individual may obtain review
of appealable agency action, meaning an “action that determines the legal
rights, duties or privileges of a party.” A.R.S. §§ 41-1092(3), -1092.02(A).
Under the Uniform Procedures, an agency that makes an appealable action
must serve the affected party with notice. The notice must identify the
statute or rule on which the action was based, the factual basis underlying
the action, and a description of the party’s right to challenge the action and
request a settlement conference. A.R.S. § 41-1092.03(A)(1)–(4). After the
notice is served, the aggrieved party is entitled to: (1) file a “notice of appeal
or request for a hearing” with the agency; (2) engage in informal settlement
discussions with the agency; (3) participate in a formal hearing where the
party has the right to “respond and present evidence and argument on all
relevant issues” before an administrative law judge; (4) receive a final
administrative decision with a written explanation of the reasons
supporting it; and (5) appeal an adverse decision to the superior court.
A.R.S. §§ 41-1092.03 to -1092.08.
¶37 The Uniform Procedures apply to the Department’s
classification of offenses under A.R.S. §§ 41-1758.03 and -1758.07 and
provide the required review of the Department’s actions. Although the
Board is exempt from the Uniform Procedures, A.R.S. § 41-1092.02(A)(14),
the Department is not. Therefore, the Department’s classifications are
appealable agency actions, as they constitute substantive determinations of
individuals’ right to obtain a fingerprint clearance card and, consequently,
to seek employment in numerous fields. And because the Board lacks
jurisdiction to review the Department’s decisions, there is no specific
statutory scheme for reviewing the Department’s classifications which
could supplant the Uniform Procedures.
¶38 The only remaining question is whether Starr is now
precluded from seeking review of the Department’s classification of her
Texas conviction. Under A.R.S. § 41-1092.03(B), a party who wishes to
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challenge an appealable agency action must file a notice of appeal or request
for a hearing “within thirty days after receiving the notice prescribed in
subsection A of [A.R.S. § 41-1092.03].” There is no evidence in the record
that Starr sought to challenge the Department’s classification of her Texas
conviction by seeking a hearing from the Department. However, the time
limit to challenge the Department’s decision begins to run only after a
compliant denial notice is sent per A.R.S. § 41-1092.03(A). The denial letters
the Department sent Starr did not comply with the statute.
¶39 To be sure, the notices met some of the prerequisites of A.R.S.
§ 41-1092.03(A). For example, they sufficiently identified the statutory and
factual basis underlying the Department’s decisions to deny Starr’s
fingerprint clearance card. A.R.S. § 41-1092.03(A)(1)–(2). But critically, the
notices did not include “a description of the party’s right to request a
hearing on the appealable agency action” according to the Uniform
Procedures, A.R.S. § 41-1092.03(A)(3). Thus, Starr never received “the
notice prescribed in subsection A” of A.R.S. § 41-1092.03(A)(3), and as a
result, her 30-day period to file a challenge under A.R.S. § 41-1092.03(B)
never began to run.2
ATTORNEY’S FEES AND COSTS
¶40 Starr requests an award of attorney’s fees and costs under
A.R.S. § 12-348(A)(2). Because she is not the prevailing party against the
Board, we deny her request.
2 Starr also argues that the superior court should have acquired the
complete record from the Board under A.R.S § 12-904 before ruling, and
without it, she was denied a meaningful appeal. We need not address this
issue, however, because even assuming it was error for the court to issue a
decision without a complete record from the Board, the record had no
bearing on the dispositive legal question here—whether the Board had
jurisdiction to grant the relief Starr sought. Thus, any error was harmless.
Ariz. Const. art. 6, § 27; Sundown Imports, Inc. v. Ariz. Dep’t. of Transp., Motor
Vehicle Div., 115 Ariz. 428, 433 (App. 1977).
13
STARR v. AZ BOF
Opinion of the Court
CONCLUSION
¶41 We affirm the superior court’s dismissal of Starr’s appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
14