Department of Revenue v. Southern Union Gas Co. , 119 Ariz. 536 ( 1977 )

EUBANK, Judge, concurring in part, dissenting in part.

I concur in the result reached by the majority, but disagree with much of the basis used for reaching that result.

First, while I agree that A.R.S. § 42-123 B(6), through A.R.S. §§ 42-151 and 152, provides the exclusive administrative appeal procedure for the Department where either valuation or classification, or both, are the issues, I disagree with the implication that the Department cannot bring an independent action against the members of the appellee Board for official misconduct or neglect of duty arising out of valuation or classification matters pursuant to A.R.S. § 42-123 B(l). The “complaint” here, however, does not in my opinion allege such a § 42-123 B(l) action against board members. Therefore the “complaint” aspect of the appeal was properly dismissed. The appeal, however, was not properly dismissed.

Second, while I agree that the failure to set the appeal for hearing within 90 days, pursuant to A.R.S. § 42-152 A, is not a jurisdictional requirement, I disagree with the majority that the initial responsibility for hearing the case within 90 days does not lie with the superior court, for the following reasons:

(1) A.R.S. § 42-152 A expressly places that responsibility on the superior court to hear the appeal within ninety days after the appeal is docketed. This is, of itself, a strong indication that the legislature intended the duty to lie with the court.

(2) The legislative history shows that the duty was always with the superior court. Section 3065, R.C. 1928, provided for appeal as follows:

. No appeal shall be taken unless the appellant shall first pay to the said county treasurer the amount of taxes levied and assessed against his property, and unless so paid the appeal shall be dismissed by the court. The appellant must file concurrently with the said county treasurer a statement of the reasons why the assessment in question is erroneous or excessive. The county treasurer shall give a receipt for the amount when paid, and transmit a copy of such receipt, notice of appeal and statement of protest to the board. Upon receipt thereof, the secretary of said board shall transmit said papers together with a certified copy of the proceedings of said board against appellant to the clerk of the superior court of the county in which appellant’s property is situated, and the clerk shall docket the appeal in the name of appellant as plaintiff, and in the name of the county and board as defendants. The court shall hear such appeal within ten days thereafter, either with or without a jury, unless both parties shall file a written agreement with the court to a continuance. (Emphasis added).

This procedure was continued into the 1939 Code without change. (Section 73-110, A.C.A. 1939). In our 1956 Code § 3065 was divided into two sections, A.R.S. § 42-146 and A.R.S § 42-147. These sections read, in part,

. No appeal shall be taken unless the appellant first pays to the county treasurer the amount of taxes levied and assessed against his property, and unless so paid, the appeal shall be dismissed by the court. The appellant shall file with the county treasurer concurrently with the appeal a statement of the reasons why the assessment in question is erroneous or excessive.

C. The county treasurer shall give a receipt for the amount when paid, and shall transmit a copy of the receipt, notice of appeal and statement of protest to the state board of equalization. Upon receipt thereof, the secretary of the board shall transmit the papers together with a certified copy of the proceedings of the board relating to appellant to the clerk of the superior court of the county in which appellant’s property is located, and the clerk shall docket the appeal in the name of appellant as plaintiff and of the county and the board as defendants. (A.R.S. § 42-146 B and C).

A. The superior court shall hear the appeal within ten days after the appeal is docketed, with or without a jury, unless both parties file a written agreement with the court for a postponement. (A.R.S. § 42-147 A).

In 1969 A.R.S. § 42-147 A was amended to increase the time that the superior court “shall hear the appeal” to the present 90 days requirement. Laws 1969, ch. 122, § 3. In 1970 the notice of appeal provision of A.R.S. § 42-146 was changed, in part, to read,

C. The appropriate public official shall give a receipt for the amount when paid, and shall transmit a copy of the receipt, notice of appeal and statement of protest to the state board of property tax appeals. Upon receipt thereof, the clerk of the state board shall transmit the papers together with a certified copy of the proceedings of the state board relating to appellant to the clerk of the superior court of the appropriate county, and the clerk of the superior court shall docket the appeal in the name of appellant as plaintiff and of the state or county, whichever be appropriate, and the department as defendants. (L. 1970, ch. 82, §3).

For our purposes A.R.S. § 42-147 retained the same 90-day requirement for hearing. (L. 1970, ch. 82, § 4).

In 1971 the major change in the law occurred. A.R.S. § 42-147 A was entirely repealed, (L. 1971, ch. 41, § 9) but its language was exactly reenacted as A.R.S. § 42-152 A and reads,

A. The superior court shall hear the appeal within ninety days after the appeal is docketed, with or without a jury, unless both parties file a written agreement with the court for a postponement.

A.R.S. § 42-146 was amended by striking out the requirement of sending notice of appeal to the clerk of the superior court and reads,

A. Any taxpayer dissatisfied with the valuation OR CLASSIFICATION OF HIS PROPERTY as reviewed by the state board of property tax appeals, may appeal TO THE SUPERIOR COURT IN THE MANNER provided BY SECTION 42-151 and not otherwise.

B. APPEALS for AIRLINE COMPANIES AND private car companies shall be taken on or before the third Monday in December, APPEALS FOR UNSECURED PERSONAL PROPERTY SHALL BE TAKEN BEFORE THE TAXES BECOME DELINQUENT, and all other appeals shall be taken on or before November 1. (L. 1971, ch. 41, § 3).

The 1971 amendment, therefore, eliminated the provision which required various public officers to forward appeal documents to the clerk of the superior court for docketing, and the new special appeal provisions of A.R.S. §§ 42-146, 42-151 and 42-152 did not cover the notice procedure as the prior statutes did. It is clear to me that even though the legislature removed the appeal notice procedure from the board to the superior court, they did not intend to change the duty of the court to hear the appeal within 90 days after the appeal was docketed because, as we have seen above, that duty of the court has remained exactly the same since the enactment of § 3065, R.C. 1928, except for the increase of time to 90 days for the hearing. The obligation to hear the matter then was the obligation of the court and not the appellant or the appellee. This being so any delay on the part of the court to hear the appeal can be remedied by the parties in the manner provided for obtaining speedy decisions under art. 6, § 21, Arizona Constitution, by a special action. Wustrack v. Clark, 18 Ariz. App. 407, 502 P.2d 1084 (1972).

(3) The majority’s reliance on Cooper v. Odom, 6 Ariz.App. 466, 433 P.2d 646 (1967); Rule 41(b), Rules of Civil Procedure, 16 A.R.S.; Rule Y, Uniform Rules of Practice of the Superior Court, 17A A.R.S.; Rule V(a), Local Rules of Practice of Maricopa County, 17A A.R.S. is inaccurate because this matter is an administrative appeal from the decision of a state agency to the superior court under the authority of special appellate statutes: A.R.S. § 42-151 and § 42-152. See 15 Ariz.L.Rev. 820-829 (1973). The Rules of Civil Procedure and Rules of Practice are, for the most part, inapplicable to such appellate procedure. It would perhaps be more accurate to apply the provisions of the Judicial Review of Administrative Decisions Act, A.R.S. § 12-901 et seq. where they are not in conflict with the special appeal statutes. See Judicial Review of Administrative Action In Arizona, 1975 Ariz.St.L.J. 739 (1975). However, as indicated above, this failure to hear the matter is not a failure to prosecute, in my opinion, but is a failure of the superior court to perform a statutory duty.

(4) The majority is of the opinion that the trial court “may choose to dismiss or may choose to order the parties to trial.” I disagree. In my view, the court can only proceed as required by A.R.S. §§ 42-151, 42-152. As stated before, the trial court could properly sever or dismiss the A.R.S. § 42-123 B(l) “complaint” from the appeal, but thereafter it should proceed to hear the appeal.

Finally, I agree that there is no waiver by appellee. The duty to hear the matter is the court’s and not the parties when they have timely appealed pursuant to A.R.S. §§ 42-146, 42-151 and 42-152.

I would reverse the dismissal and remand for the administrative appellate hearing on the issues of valuation and classification.