Shea v. Maricopa ( 2023 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
BART M. SHEA, ET AL.,
Plaintiffs/Appellants,
v.
MARICOPA COUNTY, ET AL.,
Defendants/Appellees.
No. CV-22-0187-PR
Filed May 3, 2023
Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge (Retired)
The Honorable Lisa Daniel Flores, Judge (Retired)
No. CV2018-053565
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
253 Ariz. 286 (App. 2022)
OPINION VACATED
COUNSEL:
Christopher H. Bayley, Andrew M. Jacobs (argued), Emily Gildar Yaron,
James G. Florentine, Snell & Wilmer L.L.P., Phoenix, Attorneys for Bart and
Cheryl Shea
Rachel H. Mitchell, Maricopa County Attorney, Joseph J. Branco (argued),
Wayne J. Peck, Deputy County Attorneys, Phoenix, Attorneys for Maricopa
County, Maricopa County Board of Adjustments, and Maricopa County
Planning and Development Department
SHEA ET AL. V. MARICOPA COUNTY ET AL.
Opinion of the Court
JUSTICE LOPEZ authored the Opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES BEENE and KING joined. JUSTICE
BOLICK dissented. *
JUSTICE LOPEZ, Opinion of the Court:
¶1 We consider the statutory jurisdictional requirements for
judicial review of an administrative decision. We hold that A.R.S.
§ 12-904(A) does not preclude jurisdiction where a timely filing’s substance
(1) provides notice of the appeal; (2) identifies the decision being appealed;
and (3) states the issues presented on appeal. Although the statute’s
requirements turn on substance, not form, to facilitate efficient handling of
appeals and to provide notice to interested parties, we urge parties
appealing administrative decisions to avoid potential jurisdictional pitfalls
by following this Court’s clear instructions in the Arizona Rules of
Procedure for Judicial Review of Administrative Decisions (“JRAD”)
Rule 4(c) and JRAD Form 1.
BACKGROUND
¶2 In 2017, Maricopa County’s Planning and Development
Department (the “Department”) initiated proceedings against homeowners
Bart and Cheryl Shea, alleging violations of several sections of the Maricopa
County Zoning Ordinance for building certain structures on their property
without proper permits. On December 12, 2017, the Department’s hearing
officer fined the Sheas, who timely appealed to the Department’s Board of
Adjustment (the “Board”). In February 2018, the Board affirmed the fine.
* Chief Justice Brutinel and Justice Montgomery have recused
themselves from this case.
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Opinion of the Court
¶3 On March 14, 2018, the Sheas filed a “Verified Complaint for
Special Action” (the “complaint”) in superior court, naming Maricopa
County, the Board, and the Department (collectively, the “County”) as
defendants. In its factual and procedural background, the complaint
alleged that “[o]n or about January 10, 2018, [the Sheas] appealed the
hearing officer’s decision to the [Board]” who “denied [their] appeal.
Having been aggrieved by a decision made by the Board, [the Sheas] file
this appeal pursuant to A.R.S. § 11-816(D).” Also, the complaint’s
background referenced “Departmental Report DR# V201601264,” which is
a code the Department used to label, identify, and locate all its documents
arising from the Sheas’ case, including emails, notices, hearing officer
decisions, and Board meeting notes.
¶4 Count I of the complaint requested declaratory relief that “the
Department’s finding and ruling was not supported by fact or law,” that
“they owe no fines or penalties as set forth in the Department’s
December 12, 2017 [judgment],” and that “the Department’s and County
Attorney’s actions were the result of improper retaliation.” Counts II and
III alleged procedural and substantive due process violations, respectively,
and the complaint’s prayer for relief also requested the court to grant
declaratory relief and dismiss the citation or, alternatively, grant another
hearing.
¶5 The complaint made several notable omissions. First, it did
not state the date of the Board’s decision affirming the hearing officer’s
judgment. Second, although a copy of the hearing officer’s decision was
attached to the complaint, a copy of the Board’s decision was not. Third,
the complaint was not titled as a “notice of appeal” and failed to cite A.R.S.
§ 11-816(B)(3), which permits judicial review of Board decisions according
to Arizona’s Administrative Review Act (the “Act”).
¶6 Emphasizing these omissions and the complaint’s excessive
length, the County moved to dismiss the Sheas’ complaint, arguing that the
court lacked jurisdiction under two sections of the Act. See § 12-904(A)
(requiring the filing of a “notice of appeal” that “identif[ies] the final
administrative decision sought to be reviewed and include[s] a statement
of the issues presented for review”); A.R.S. § 12-902(B) (barring judicial
review of agency decisions “[u]nless review is sought . . . within the time
and in the manner provided in [the Act]”). However, on August 2, 2018,
the trial court denied the County’s motion and granted leave for the Sheas
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Opinion of the Court
to file an amended complaint, reasoning that erroneous citations and
mistitling alone are not of jurisdictional consequence.
¶7 On August 22, 2018, the Sheas filed their “First Amended
Verified Complaint for Appeal of Administrative Action.” On
September 14, 2018, the County filed an answer, alleging that the court
lacked subject matter jurisdiction because the Sheas’ complaint “violate[d]
the requirements of . . . § 12-904, mandating dismissal pursuant
to . . . § 12-902.” The County also asserted a counterclaim, seeking to
enforce the fine imposed at the initial hearing.
¶8 On August 27, 2019, after a judicial reassignment, the trial
court sua sponte ruled that it lacked subject matter jurisdiction. The court
reasoned that the Sheas’ complaint failed to comply with § 12-904(A); thus,
the Sheas failed to file a timely “notice of appeal.” Ultimately, on March 31,
2021, the court entered final judgment on the County’s counterclaim.
¶9 In a split opinion, the court of appeals affirmed the trial
court’s dismissal and counterclaim judgment. Shea v. Maricopa Cnty.,
253 Ariz. 286, 287 ¶ 1, 289–90 ¶ 14 (App. 2022). The majority reasoned that
because the Sheas’ complaint erroneously cited § 11-816(D) for jurisdiction,
only vaguely referenced the Board decision, and did not clearly identify the
issues, the Sheas’ complaint failed § 12-904(A)’s requirements, invoking
§ 12-902(B)’s jurisdictional bar. Id.
¶10 We accepted review to settle a recurring issue of statewide
importance: whether § 12-904(A) precludes jurisdiction for judicial review
of a final administrative decision if a timely filing substantively, but not
formally, (1) provides notice of the appeal; (2) identifies the decision being
appealed; and (3) states the issues argued on appeal. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution.
DISCUSSION
¶11 “Determining the procedure for review of administrative
decisions involves the interpretation of rules and statutes, which [this
Court] review[s] de novo.” Smith v. Ariz. Citizens Clean Elections Comm’n,
212 Ariz. 407, 412 ¶ 18 (2006); see Bolser Enters., Inc. v. Ariz. Registrar of
Contractors, 213 Ariz. 110, 112 ¶ 12 (App. 2006) (applying de novo review in
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Opinion of the Court
deciding whether the superior court properly dismissed a complaint for
judicial review based on a lack of subject matter jurisdiction).
I.
¶12 Section 11-816(B)(3) authorizes Board review of decisions
made by hearing officers and directs that “[j]udicial review of the final
decision by the [Board] shall be pursuant to [the Act].” Under the Act,
because the statute is the sole source of jurisdiction, compliance with its
strictures is mandatory. Ariz. Comm’n of Agric. & Horticulture v. Jones,
91 Ariz. 183, 187 (1962) (“We said of [the Act] that the right of appeal ‘exists
only by force of statute, and this right is limited by the terms of the statute.’”
(quoting Knape v. Brown, 86 Ariz. 158, 159 (1959))). Compliance with court
rules, however, including JRAD, is not determinative of jurisdiction. See id.¶13 Section 12-902(B), which falls under the Act, limits judicial
review of administrative decisions as follows:
Unless review is sought of an administrative decision within
the time and in the manner provided in this article, the
parties to the proceeding before the administrative agency
shall be barred from obtaining judicial review of the
decision.
Id. (emphasis added). Thus, according to the statute’s terms, both the Act’s
“time” and “manner” requirements have jurisdictional import. Id.¶14 Section 12-904(A) of the Act imposes the following “manner”
requirements:
An action to review a final administrative decision shall be
commenced by filing a notice of appeal within thirty-five
days from the date when a copy of the decision sought to be
reviewed is served upon the party affected . . . . The notice of
appeal shall identify the final administrative decision
sought to be reviewed and include a statement of the issues
presented for review.
Id. (emphasis added). In other words, § 12-904(A) sets forth three
jurisdictional requirements for judicial review of an administrative
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Opinion of the Court
decision: (1) the notice of appeal must be timely filed; (2) the notice of
appeal must “identify the final administrative decision sought to be
reviewed”; and (3) the notice of appeal must “include a statement of the
issues presented for review.”
II.
¶15 Having established § 12-904(A)’s three jurisdictional
requirements, we now consider whether the Sheas’ complaint complied
with the Act. We need not consider the Sheas’ amended complaint, which
was untimely as beyond the thirty-five-day deadline, because we conclude
that the complaint satisfies § 12-904(A) requirements.
A.
¶16 Our jurisprudence interpreting procedural rules, although
not dispositive, informs our analysis. We have long held that, where no
party is misled or prejudiced, non-statutory defects in a timely notice of
appeal do not preclude jurisdiction. Boydston v. Strole Dev. Co., 193 Ariz. 47,
50 ¶ 11 (1998) (“[E]ven if defective, a notice of appeal is sufficient if it is
neither misleading nor prejudicial.”); Hanen v. Willis, 102 Ariz. 6, 9 (1967)
(“[W]hen adequate notice to appeal has been given to the other party, no
mere technical error should prevent the appellate court from reaching the
merits of the appeal.”); Sheppard v. Ariz. Bd. of Pardons & Paroles, 111 Ariz.
587, 588 (1975) (“[T]his Court will consider any application ‘which states
sufficient facts to justify relief irrespective of its technical denomination.’”
(quoting State v. Superior Court, 103 Ariz. 208, 210 (1968))). The policy
animating this substance-over-form approach is our preference for
decisions on the merits. Hanen, 102 Ariz. at 9; see Webb v. State ex rel. Ariz.
Bd. of Med. Exam’rs, 194 Ariz. 117, 122 ¶ 25 (App. 1999) (noting the policy to
interpret ambiguities regarding timing “in favor of preserving the right to
appeal and against the forfeiture of that right upon a technicality”).
¶17 Courts have also applied this harmless error standard to
timely notice of claims containing technical defects under agency
regulations. Epperson v. Indus. Comm’n, 26 Ariz. App. 467, 472 (1976)
(holding that despite “insufficient service under Rule 58, Rules of
Procedure of the Industrial Commission of Arizona[,]” the court would
“decline to attach any legal significance to the omission” given the lack of
“any prejudice . . . as a result of this faulty service”).
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Opinion of the Court
¶18 In sum, when applying our rules, we favor decisions on the
merits and treat non-prejudicial, non-misleading defects in a timely notice
of appeal as not jurisdictional unless the plain meaning of a statute bars
jurisdiction. We see no reason not to apply this policy in the administrative
appeal context. Accordingly, we now determine whether the plain
meaning of § 12-904(A) bars jurisdiction here.
B.
¶19 We first interpret § 12-904(A)’s requirement of filing a “notice
of appeal.” In interpreting statutes, we turn first to the text because
unambiguous text is dispositive. State ex rel. Brnovich v. City of Phx.,
249 Ariz. 239, 244 ¶ 21 (2020). However, where more than one reasonable
interpretation is possible, “we consider secondary interpretation methods,
including consideration of the statute’s ‘subject matter, its historical
background, its effect[s] and consequences, and its spirit and purpose.’”
State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017) (quoting State ex rel. Polk v.
Campbell, 239 Ariz. 405, 406 ¶ 5 (2016)).
¶20 The County asserts that the Sheas’ complaint titled “Verified
Complaint for Special Action” is not a “notice of appeal” under § 12-902(A)
because the legislature intended “notice of appeal” to be a term of art
confined to a conventional standard form notice of appeal. We are
unpersuaded. As the County effectively conceded at oral argument, the Act
does not define “notice of appeal,” and the term’s plain meaning broadly
encompasses any “document filed with a court and served on the other
parties” that “stat[es] an intention to appeal a trial court’s judgment or
order.” Notice of Appeal, Black’s Law Dictionary (11th ed. 2019). Special
formatting, titling, and citations are not required. See id.; see also State v.
Good, 9 Ariz. App. 388, 392 (1969) (“The object of a notice of appeal is to
advise the opposite party that an appeal has been taken from a specific
judgment in a specific case.”). This meaning aligns with our preference to
“look to substance rather than to form” when interpreting procedural
devices. See, e.g., Rodriquez v. Williams, 104 Ariz. 280, 283 (1969). Applying
the plain meaning of “notice of appeal” is also consistent with A.R.S.
§ 1-211(B)’s directive that “[s]tatutes shall be liberally construed to effect
their objects and to promote justice.”
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Opinion of the Court
¶21 Because § 12-904(A)’s plain meaning is clear, the statute is
unambiguous; however, even if § 12-904(A) is ambiguous, the following
secondary interpretive devices affirm the interpretation set forth above.
First, legislative history, as evinced by the evolution of the statutory
language, also supports this meaning of “notice of appeal.” In 2012, the
legislature amended § 12-904, replacing “complaint” with “notice of
appeal” as the pleading commencing a statutory appeal. 2012 Ariz. Sess.
Laws ch. 322, § 3 (2d Reg. Sess.). The amendment’s purpose in substituting
“notice of appeal” for “complaint” was to change the procedural nature of
the review process from complaint to appeal—not to implement a
heightened jurisdictional hurdle through technical formatting
requirements. See id. On this point, the court of appeals’ majority and
dissent agreed that mistitling alone “does not necessarily create a
jurisdictional bar.” Shea, 253 Ariz. at 290 ¶ 17, 293 ¶ 28. If the legislature
intended to incorporate a more restrictive term of art for “notice of appeal,”
it would have done so. See, e.g., A.R.S. § 19-201.01 (expressly mandating
“strict compliance” in the election recall context to preclude lenient court
interpretation). Indeed, the legislature has mandated a specific form for
referenda, see A.R.S. § 19-101(A), but it imposed no such form requirement
for “notice of appeal.”
¶22 Our procedural rules governing administrative appeals
further support an expansive meaning of “notice of appeal.” Under JRAD
Rule 4(c), the “[c]ontent of the Notice of Appeal” must include the
following: (1) “the caption of the case and the administrative agency case
number”; (2) the appealing party’s identity; (3) “the final administrative
decision from which the party is appealing, including the date of that
decision”; (4) “the findings and decision or part of the findings and decision
sought to be reviewed”; and (5) “the issues presented for review.” JRAD
Rule 4(c)(1)–(5). These requirements are plainly intended to provide
adequate notice of the intent to appeal and to identify the decision to be
appealed, the very purpose embodied in the plain meaning of “notice of
appeal.”
¶23 The County warns that construing the Sheas’ misstyled
complaint as a notice of appeal would license the trial court to adjudicate
the administrative appeal under different procedural rules. The County
exaggerates this risk. We are unpersuaded that a mislabeled filing initiating
an appeal of an administrative decision would prompt a court to overlook
the substance of the matter and forego applying the requisite JRAD
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Opinion of the Court
procedures. In fact, the County conceded in the court of appeals and at oral
argument here that it was not misled by the Sheas’ mistitled filing. Even if
a trial court were to make this unlikely procedural faux pas, we are confident
that the state party would call the court’s attention to the JRAD procedures.
C.
¶24 Given our construction of § 12-904(A), we conclude that the
Sheas’ complaint constitutes a “notice of appeal” because it comports with
the plain meaning of the term—it is a “document” that “[gave notice of] an
intention to appeal” and was “filed with [the appellate] court and served
on the [opposing] part[y].” Notice of Appeal, Black’s Law Dictionary (11th
ed. 2019). The “complaint” effected notice by listing the agency case
number, identifying the parties, and stating that the Sheas filed their appeal
“[h]aving been aggrieved by a decision made by the Board.” Although the
deficiencies in the “complaint” exceed those in many cases that leniently
interpreted court rules governing jurisdiction, see, e.g., Boydston, 193 Ariz.
at 50 ¶ 14 (holding as curable a non-lawyer’s signature on a corporation’s
notice of appeal), the flaws here are mere technicalities given that the
“complaint” included nearly all of JRAD Rule 4(c)’s required content and
effected non-prejudicial, non-misleading notice to the County.
¶25 We reject the County’s assertion that it was “prejudiced” by
the excessive length and inartful wording of the “complaint.” Mere
inconvenience in reviewing the Sheas’ “complaint” does not warrant
dismissal of the appeal because the filing did not mislead or otherwise
compromise the County’s litigation position. Cf. Hill v. City of Phx.,
193 Ariz. 570, 573 ¶ 14 (1999) (finding no prejudice where the notice of
appeal omitted certain defendant names but all defendants “received the
notice and . . . knowingly participated in . . . proceedings pertaining
directly to the appeal”).
D.
¶26 We next interpret § 12-904(A)’s second requirement to
“identify the final administrative decision sought to be reviewed.” The
statute does not define “identify.” In the legal context, “identify” means
“[t]o prove the identity of (a person or thing).” Identify, Black’s Law
Dictionary (11th ed. 2019). The plain meaning of “identify” aligns with its
legal definition. Common synonyms of “identify” include to “distinguish,”
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Opinion of the Court
to “pinpoint,” and to “single (out).” Identify, Merriam-Webster,
https://www.merriam-webster.com/dictionary/identify (last visited
Apr. 26, 2023).
¶27 Here, the “complaint” sufficiently identified the final
administrative decision being appealed by pinpointing—albeit indirectly—
the Board’s decision. The “complaint” attributed the Sheas’ “grievance” to
the Board’s decision, provided the agency’s internal case number
identifying all the Department’s documents pertaining to the case,
including the Board’s decision, and noted the case’s procedural history.
The Sheas’ “complaint,” construed as a notice of appeal, also met this
requirement.
E.
¶28 Last, we turn to § 12-904(A)’s command to “include a
statement of the issues.” The statute does not define “statement of the
issues.” However, § 12-904(A)’s last sentence explains that “[t]he statement
of an issue presented for review is deemed to include every subsidiary issue
fairly comprised in the statement,” suggesting a broad construction of the
“statement of the issues.”
¶29 Here, the Sheas’ “complaint” included a statement of the
issues by alleging an inadequate factual basis for the hearing officer’s
judgment and procedural and substantive due process violations.
Although the Sheas did not list these claims under a “statement of issues”
heading, the statute does not mandate a specific format. This requirement
too is satisfied.
III.
¶30 The dissent contends that the statute compels the “harsh
result” of dismissing the Sheas’ appeal because they commenced their
appellate review of the Board’s decision by filing a document titled
“complaint” rather than a “notice of appeal” even though the Board
received notice of the appeal. Infra ¶¶ 32, 39. We disagree. The Sheas’
“complaint,” which we construe as a “notice of appeal” for the reasons
discussed, Part II ¶¶ 19–23, contains the statutorily required elements in
every respect but its title. Because the Sheas’ mistitling of their filing did
not transform the nature of the judicial review of their administrative
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Opinion of the Court
appeal from an appellate to special action proceeding, and because the
Sheas’ “complaint” merely served to notify the Board of the Sheas’ intent to
appeal, the statute does not require what the dissent characterizes as a
“harsh result.”
CONCLUSION
¶31 We hold that A.R.S. § 12-904(A) does not preclude jurisdiction
where a timely filing’s substance (1) provides notice of the appeal;
(2) identifies the decision being appealed; and (3) states the issues argued
on appeal. Because the Sheas’ “complaint” complies with these statutory
requirements, we reverse the trial court’s judgment, vacate the court of
appeals’ opinion, and remand to the trial court for further proceedings
consistent with this opinion.
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JUSTICE BOLICK, Dissenting
BOLICK, J., dissenting:
¶32 I agree with my colleagues that the Sheas placed the Board on
notice that they were appealing its determinations. However, I agree with
the court of appeals majority that in creating an opportunity for appeal, the
legislature decreed the basic manner by which such appeals would take
place, and the Sheas failed to comply. Although in a case like this I would
prefer to emphasize substance over form, I conclude the legislature limited
our authority to do so.
¶33 “Appeal being a statutory privilege, jurisdictional
requirements prescribed by statute must be strictly complied with to
achieve entrance to appellate review.” Ariz. Dep’t of Econ. Sec. v. Holland,
120 Ariz. 371, 373 (App. 1978). The opening sentence of A.R.S. § 12-902(B)
is both categorical and unquestionably jurisdictional: “Unless review is
sought of an administrative decision within the time and in the manner
provided in this article, the parties to the proceeding before the
administrative agency shall be barred from obtaining judicial review of the
decision.” § 12-902(B). So, the case comes down to what the term “manner”
means in this context.
¶34 In general use, “manner” encompasses “a characteristic or
customary mode of acting” or “a mode of procedure.” Manner, Merriam-
Webster, https://www.merriam-webster.com/dictionary/manner (last
visited Apr. 26, 2023). The legislature prescribed the manner of filing an
appeal in A.R.S. § 12-904(A), which begins with the command: “An action
to review a final administrative decision shall be commenced by filing a
notice of appeal . . . .” We have consistently held that the word “shall” is
mandatory. See Garcia v. Butler in & for Pima Cnty., 251 Ariz. 191, 195 ¶ 15
(2021); State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 132 ¶ 19
(2020).
¶35 The Section then goes on to specify the contents of the “notice
of appeal.” § 12-904(B)(1)–(5). My colleagues focus on the fact that, over
two tries, the Sheas mostly satisfied those content requirements, at least
sufficiently enough to accomplish their obvious purpose of placing the
Board on notice of the action. Supra ¶ 24. But the Sheas did not comply with
the threshold requirement of § 12-904(A) by “filing a notice of appeal,” and
instead filed a “complaint for special action.” As we have held, substantial
compliance with content requirements does not excuse noncompliance
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JUSTICE BOLICK, Dissenting
with time and substance requirements. See, e.g., Legacy Found. Action Fund
v. Citizens Clean Elections Comm’n, 243 Ariz. 404, 406 ¶ 8 (2018) (holding that
failure to fulfill the § 12-904(A) requirements “deprives the court of
jurisdiction to hear the appeal”); Falcon ex rel. Sandoval v. Maricopa Cnty.,
213 Ariz. 525, 527 ¶ 10 (2006) (“If a notice of claim is not properly filed
within the statutory time limit, a plaintiff’s claim is barred by statute.
Actual notice and substantial compliance do not excuse failure to comply
with the statutory requirements . . . .” (internal citation omitted)).
¶36 Here, the statutory history strongly indicates that the
legislature was not simply describing a generic legal pleading when it
specified a notice of appeal. Prior to 2013, § 12-904 provided that an action
to review a final administrative decision “shall be commenced by filing a
complaint.” 2012 Ariz. Sess. Laws ch. 322, § 3 (2d Reg. Sess.). That year, the
term complaint was substituted with “notice of appeal” in subsections A,
B, and B(5), id.; and indeed, the term is now used four times in the statute.1
When the legislature amends a statute, we must treat the change as
meaningful. See, e.g., Pinal Vista Props., LLC v. Turnbull, 208 Ariz. 188, 190
¶ 10 (App. 2004) (noting that “each word or phrase of a statute must be
given meaning so that no part is rendered void, superfluous, contradictory
or insignificant.”); State v. Harm, 236 Ariz. 402, 407 ¶ 19 (App. 2015) (stating
that “when the legislature chooses different words within a statutory
scheme, we presume those distinctions are meaningful and evidence an
intent to give a different meaning and consequence to the alternate
language.”); see also Shea v. Maricopa Cnty., 253 Ariz. 286, 231¶ 18 (App.
2022).
¶37 Whatever the law means by a notice of appeal, and whatever
is necessary or sufficient by way of its contents, a complaint for special
action is not an appeal. The two actions are conceptually distinct, and each
has its own procedural rules and requirements. Compare Ariz. R.P. Spec.
Act. 4., with § 12-904(A); see also Arizonans for Second Chances v. Hobbs,
249 Ariz. 396, 426–27 ¶¶ 120–22 (2020) (Bolick, J., dissenting) (setting forth
the requirements for a special action). Indeed, our rules provide that special
action will not lie where there is an equally plain, speedy, and adequate
1
That same year, the legislature amended § 12-914(A) to provide that JRAD
shall apply to claims made under the article. The term “notice of appeal”
appears in the headings of literally all six subsections of the pertinent rule,
JRAD Rule 4.
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JUSTICE BOLICK, Dissenting
remedy by appeal, Ariz. R.P. Spec. Act. 1(a), so it would be highly
anomalous to allow a special action to substitute for an appeal that is
prescribed by law. Given that the differences between appeals and special
actions preexisted the statutory change, we must credit the legislature’s act
in choosing one over the other.
¶38 I agree with my colleagues that this legislative choice can
make administrative appeals difficult for the unwary. Likely that is why
our rules provide a handy template for properly filing an appeal, titled
“Notice of Appeal of Administrative Decision.” JRAD Rule 4; JRAD
Form 1. Even without the template, the statutes spell out what is required
and point to our rules, which could not be clearer that a notice of appeal is
required.
¶39 And dismissal of the appeal (or, in this case, the special action)
is certainly a harsh result. But so long as the legislature acts within its
constitutional authority and complies with due process requirements, it
gets to mandate harsh results if it chooses. The legislature could not have
tailored harsh-consequences language more plainly than when it decreed
that “[u]nless review is sought . . . in the manner provided . . . , the
parties . . . shall be barred from obtaining judicial review of the decision.”
§ 12-902(B). Whatever misgivings we may have, our job is to apply that
statutory dictate.
¶40 For the foregoing reasons, and with great respect to my
colleagues, I dissent.
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