Dema v. Atonna ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
VICTOR O. DEMA,
Petitioner/Appellant,
v.
HONORABLE ARTHUR C. ATONNA; TEMPE MUNICIPAL COURT,
Respondents/Appellees.
No. 1 CA-CV 14-0694
FILED 4-7-2016
Appeal from the Superior Court in Maricopa County
LC2014-0002000-001
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL
Victor O. Dema, Mesa
Petitioner/Appellant
Tempe City Attorney’s Office, Tempe
By Judith R. Baumann, Christopher B. Davis
Counsel for Respondents/Appellees
DEMA v. ATONNA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
S W A N N, Judge:
¶1 Victor O. Dema appeals the superior court’s decision to
decline jurisdiction over his special action, in which he challenged the
Tempe Municipal Court’s determination that he was responsible for a
violation of A.R.S. § 28-947(B) (prohibiting blue lights on a private vehicle).1
He contends that special action jurisdiction over his petition for a “writ of
prohibition and for judge’s denial of motion to change venue or judge” was
proper because no decisions have interpreted A.R.S. § 28-947(B), which he
asserts is unconstitutional. Because we find no abuse of discretion in the
court’s decision to decline jurisdiction, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2014, Tempe Police issued Dema a citation for
having blue lights on the front and sides of his vehicle in violation of A.R.S.
§ 28-947(B). Dema had received citations for the blue lights several times in
the past, and the Tempe Municipal Court found him responsible in April
2014 for the latest infraction and imposed a fine. Dema then filed a petition
for special action in the Maricopa County Superior Court, contending that
the citation violated his First Amendment rights, the statute was
unconstitutionally vague, and it was enforced “arbitrarily, selectively,
subjectively, on [a] purely ad hoc basis.”
¶3 In September 2014, the superior court declined jurisdiction
and ordered the case closed in a signed minute entry that lacked a
certification of finality pursuant to Ariz. R. Civ. P. 54(c). Dema appealed
the court’s decision to decline jurisdiction. This court stayed the case and
revested jurisdiction in the superior court to allow Dema to obtain a final
signed order, which was filed April 2015.
1 Dema also requests review of a number of other substantive issues;
however, we review only the superior court’s decision not to accept
jurisdiction.
2
DEMA v. ATONNA
Decision of the Court
DISCUSSION
¶4 We conduct a bifurcated review of an appeal of a special
action brought in the superior court. State v. Johnson, 184 Ariz. 521, 523
(App. 1994). First, we determine if the superior court accepted jurisdiction
and addressed the merits; we review the merits only if the superior court
did so. Bilagody v. Thorneycroft, 125 Ariz. 88, 92 (App. 1979). Second, if the
superior court did not address the merits, we review only the question
whether the court abused its discretion in declining jurisdiction. Id. The
superior court’s order states “IT IS ORDERED, in this Court’s discretion,
declining jurisdiction of this Special Action Petition.” We therefore review
only whether the superior court abused its discretion in declining
jurisdiction. “Generally, a court abuses its discretion where the record fails
to provide substantial support for its decision or the court commits an error
of law in reaching the decision.” Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App.
2001).
¶5 The decision whether to accept or decline jurisdiction is
discretionary. Bilagody, 125 Ariz. at 92. A special action “shall not be
available where there is an equally plain, speedy, and adequate remedy by
appeal” except where the special action is authorized by statute. Ariz. R. P.
Spec. Act. 1(a). No statute specifically authorizes a special action in this
case, but Dema had a right of direct appeal. The applicable municipal court
rule states, “[a]ny party may appeal to the Superior Court from a final order
or final judgment in a civil traffic case as provided by statute and these
Rules.” Ariz. R.P. Civ. Traffic and Civ. Boating Violation Cases 26(a).2
Because there was a right to appeal the municipal court’s decision to the
superior court, a special action petition was neither necessary nor proper.
The superior court did not abuse its discretion in declining jurisdiction.
2 See Ariz. R.P. Civ. Traffic and Civ. Boating Violation Cases 1 (“These
rules apply in all court cases involving the adjudication and appeal of civil
traffic . . . violations except those violations consolidated pursuant to Rule
14 of these rules.”).
3
DEMA v. ATONNA
Decision of the Court
CONCLUSION
¶6 For the aforementioned reasons, we affirm the superior
court’s decision not to accept jurisdiction over Dema’s special action
petition.
:ama
4