IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BART M. SHEA, et al., Plaintiffs/Appellants,
v.
MARICOPA COUNTY, et al., Defendants/Appellees.
No. 1 CA-CV 21-0233
FILED 6-7-2022
Appeal from the Superior Court in Maricopa County
No. CV2018-053565
The Honorable Sally Schneider Duncan, Judge
The Honorable Lisa Daniel Flores, Judge (Retired)
AFFIRMED
COUNSEL
DKL LAW PLLC, Tempe
By David W. Lunn, Kathryn Lunn
Counsel for Plaintiffs/Appellants
Maricopa County Attorney’s Office, Phoenix
By Wayne J. Peck, Joseph Branco
Counsel for Defendants/Appellees
SHEA, et al. v. MARICOPA, et al.
Opinion of the Court
OPINION
Presiding Judge Jennifer B. Campbell delivered the opinion of the Court, in
which Judge Samuel A. Thumma joined. Chief Judge Kent E. Cattani
dissented.
C A M P B E L L, Judge:
¶1 Bart and Cheryl Shea (the Sheas) appeal from the dismissal of
their lawsuit, which sought review of a decision of the Maricopa County
Board of Adjustment (Board), and from the grant of summary judgment in
favor of the county on its counterclaim. We agree with the superior court
that, by filing a complaint for special action—not a notice of appeal—that
only vaguely referenced the Board’s decision, the Sheas did not timely seek
review “in the manner” required by Arizona’s Administrative Review Act
(Act). See A.R.S. § 12-902(B) (“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.”); see also A.R.S. § 12-904(A)
(requiring party to timely file “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.”). Because the Sheas’ failure to comply
with the Act deprived the superior court of jurisdiction, and because the
record and law support the court’s summary judgment ruling, we affirm.
BACKGROUND
¶2 In 2017, Maricopa County’s Planning and Development
Department (Department) initiated code compliance proceedings against
the Sheas, who own real estate in the county. After a hearing, the
Department’s hearing officer fined the Sheas for violating several Maricopa
County Zoning Ordinances (MCZO) by building structures on their
property without proper zoning, building, and drainage permits. The Sheas
timely appealed the decision, but the Board affirmed the hearing officer’s
decision in February 2018.
¶3 Twenty-nine days later, the Sheas filed a “VERIFIED
COMPLAINT FOR SPECIAL ACTION (Declaratory Relief; Substantive
Due Process; Procedural Due Process; Constitutional Violations)” in
superior court, naming as “defendants” the county and the Board. In Count
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Opinion of the Court
1 of the complaint, the Sheas requested a declaration, pursuant to Arizona’s
declaratory relief act, “that the Department’s finding and ruling was not
supported by fact or law,” that they owed no fines “as set forth in the
Department’s December 12, 2017 [sic],” and “that the Department’s and
County Attorney’s actions were the result of improper retaliation.” See
A.R.S. §§ 12-1831 to -1846. In Count 2, the Sheas alleged the Department
had violated their constitutional right to procedural due process by failing
to comply with their discovery requests. In Count 3, the Sheas alleged the
Department and the county attorney’s office violated their constitutional
right to substantive due process by prosecuting the code violations to
retaliate against the Sheas.
¶4 The complaint did not specify the date of the Board’s final
decision or attach a copy, although it did provide the date the Sheas
appealed to the Board and allege that “[t]he Board denied [their] appeal.”
As the basis for the court’s venue and jurisdiction, the complaint cited
various provisions in the Arizona Rules of Procedure for Special Actions,
adding that the court “has jurisdiction over this matter pursuant to A.R.S.
§ 11-816(D)” and that, “[h]aving been aggrieved by a decision made by the
Board, [the Sheas] file this appeal pursuant to A.R.S. § 11-816(D).” In
addition to declaratory relief, the Sheas requested the court “accept
jurisdiction of this Special Action,” dismiss the citation or, alternatively,
grant another hearing.
¶5 The Board and the county (collectively, the County) moved to
dismiss the complaint, contending the superior court lacked special action
jurisdiction because the Sheas had a statutory right to appeal under A.R.S.
§ 11-816(B)(3), which provides for judicial review of Board decisions
pursuant to Arizona’s Administrative Review Act. Accordingly, the
County argued that the Sheas were “precluded from filing a Complaint for
Special Action” and that their lawsuit must be dismissed because the court
lacked jurisdiction. In opposing the motion, the Sheas were steadfast “that
they have properly asserted Special Action Jurisdiction.”
¶6 The court found that “[t]here [wa]s no dispute that [the Sheas]
did not proceed under [the Act],” as required, and that they had proceeded
under the incorrect subsection of § 11-816. Nonetheless, it denied the
County’s motion to dismiss and granted the Sheas leave to file an amended
complaint. Compare § 11-816(B)(3) (“Judicial review of the final decision by
the board of adjustment shall be pursuant to [the Act]”) with § 11-816(D)
(“Any person aggrieved in any manner by an action of a board of
adjustment may appeal within thirty days to the superior court, and the
matter shall be heard de novo.”).
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SHEA, et al. v. MARICOPA, et al.
Opinion of the Court
¶7 In August 2018, approximately five months after filing their
original complaint, the Sheas filed an amended complaint, entitled “FIRST
AMENDED VERIFIED COMPLAINT FOR APPEAL OF
ADMINISTRATIVE ACTION.” In the amended complaint, the Sheas cited
the Act as the basis for the court’s jurisdiction and removed the reference to
§ 11-816(D). But they did not cite § 11-816(B)(3), nor did they identify the
final Board decision they were challenging or list the Board-related issues
they believed were incorrect. The County answered and asserted a
counterclaim seeking to enforce the fines imposed by the hearing officer.
As defenses, the County alleged that the court lacked subject matter
jurisdiction and that the complaint “violate[d] the requirements of A.R.S.
§ 12-904, mandating dismissal pursuant to A.R.S. § 12-902.”
¶8 In 2019, after a judicial reassignment, the court sua sponte
reconsidered its ruling on the County’s motion to dismiss:
Although the special action was filed within the 35 days
specified for an appeal of an administrative decision, [the
Sheas] filed a special action, rather than a notice of appeal. The
complaint was not amended to state its intention to appeal the
administrative decision until [five months after the 35-day
deadline had passed].
. . . . § 12-902(B) is clear that a timely appeal seeking judicial
review of the agency decision is jurisdictional.
On that basis, the court dismissed the Sheas’ complaint for lack of subject
matter jurisdiction. The court later granted summary judgment in favor of
the County on its counterclaim. After entry of final judgment, the Sheas
timely appealed.
DISCUSSION
¶9 The Sheas challenge the dismissal of their complaint and the
grant of summary judgment in favor of the County.1
1 To the extent the Sheas attempt to raise an additional issue in their
reply brief about whether the Department’s proceedings denied them
procedural due process, that argument is waived, Dawson v. Withycombe,
216 Ariz. 84, 111, ¶ 91 (App. 2007), and as explained below, we lack
jurisdiction to consider it. See Natasha S. v. Dep’t of Child Safety, 246 Ariz.
491, 492, ¶ 5 (App. 2019) (explaining that “when jurisdiction is lacking in
the trial court, it is lacking on appeal” (internal quotation marks omitted)).
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Opinion of the Court
I. Dismissal for Lack of Subject Matter Jurisdiction
¶10 The Sheas contend the superior court had subject matter
jurisdiction over the issues raised. Because the court dismissed the Sheas’
amended complaint after the County answered, we treat its ruling as one
granting judgment on the pleadings. See Ariz. R. Civ. P. 12(c). In reviewing
a grant of judgment on the pleadings, we accept the well-pled factual
allegations in the complaint as true and review the court’s legal conclusions
de novo. Muscat by Berman v. Creative Innervisions LLC, 244 Ariz. 194, 197,
¶ 7 (App. 2017). We also review the superior court’s determination that it
lacked subject matter jurisdiction and its interpretation of the Act de novo.
Ariz. Physicians IPA, Inc. v. W. Ariz. Reg’l Med. Ctr., 228 Ariz. 112, 114, ¶ 9
(App. 2011).
¶11 Arizona law gives counties the power to enact zoning
regulations and to enforce them by withholding building permits and
issuing civil penalties. See A.R.S. §§ 11-811, -815(D). A county that
establishes civil penalties may appoint hearing officers to conduct hearings
to determine whether violations have occurred and to assess civil penalties,
as Maricopa County has done. § 11-815(E); MCZO § 1504.3. A party may
challenge a hearing officer’s decision by timely appealing to the county’s
board of adjustment. A.R.S. § 11-816(B)(3); MCZO § 1504.3.7.
¶12 To properly appeal a board of adjustment’s final decision, in
turn, a party must seek judicial review pursuant to the Act and comply with
applicable procedural requirements. See § 11-816(B)(3) (“Judicial review of
the final decision by the [Board] shall be pursuant to [the Act]”); see also
Ariz. R.P. Jud. Rev. Admin. Dec. (“JRAD”) 1(a), 4. Under the Act, to
commence “[a]n action to review a final administrative decision,” a party
must file “a notice of appeal” in the superior court within 35 days of service
of the final decision. § 12-904(A); Johnson v. Ariz. Registrar of Contractors, 242
Ariz. 409, 412, ¶ 8 (App. 2017) (construing § 12-904(A) to contain filing
location requirement). By statute, the notice of appeal must (1) “identify the
final administrative decision sought to be reviewed” and (2) “include a
statement of the issues presented for review.” § 12-904(A); see also A.R.S. §
12-909(A) (“The notice of appeal shall contain a statement of the findings
and decision or part of the findings and decision sought to be reviewed.”).
¶13 The procedural requirements of § 12-904(A) are jurisdictional.
A.R.S. § 12-902(B) (“Unless review is sought . . . within the time and in the
manner provided in [the Act], the parties to the proceeding . . . shall be barred
from obtaining judicial review of the decision.” (Emphasis added)); see
Legacy Found. Action Fund v. Citizens Clean Elections Comm’n, 243 Ariz. 404,
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Opinion of the Court
408, ¶ 17–18 (2018) (explaining jurisdictional effect of 35 day time limit); see
also Johnson, 242 Ariz. at 411, ¶¶ 4–6 (affirming dismissal where plaintiff
filed notice of appeal with agency). Thus, the superior court only has
jurisdiction to review an administrative decision under the Act if a party
files a notice of appeal (1) in a timely manner (the “when”), (2) in the right
place (the “where”), and (3) in the proper form (the “what”).2 See Ariz. Dep’t
of Econ. Sec. v. Holland, 120 Ariz. 371, 373 (App. 1978) (“Appeal being a
statutory privilege, jurisdictional requirements prescribed by statute must
be strictly complied with to achieve entrance to appellate review.”).
¶14 Here, the Sheas’ original complaint for special action was filed
in the correct court and within the required time frame. But it was not in
the proper form. It was not captioned as a notice of appeal; it did not cite
the Act as the basis for the superior court’s jurisdiction; and it did not
specify the final Board decision being challenged or identify any issues
related to that decision. The complaint only vaguely referenced the Board’s
denial of the Sheas’ appeal, focusing instead on “the Department’s finding
and ruling,” the Department’s conduct during discovery, and the
Department’s motivations for enforcement.3 Although the filing of the
action suggests the Sheas felt the Board had not correctly resolved those
issues, the complaint gave no indication of how the Board had erred in its
review.
¶15 The Sheas amended complaint did not cure these deficiencies.
The amended complaint still failed to comply with § 12-904(A)’s decision
and issue identification requirements. And, even if it had complied, it was
untimely. The amended complaint was filed long after the deadline to
appeal had passed, and it did not relate back to the original complaint
under Rule 15 of the Arizona Rules of Civil Procedure because that rule
2 The Act also requires an appealing party to give notice of the action
to the agency that held the hearing, within ten days of filing a notice of
appeal, so the agency can send the record to the superior court. § 12-904(B).
The Sheas failed to comply with this requirement as well, as they did not
give notice of their appeal to the Board until December 2018—more than
eight months after the deadline. We need not decide whether the Sheas
failure to comply with § 12-904(B) also deprived the superior court of
jurisdiction, however, given their failure to comply with § 12-904(A).
3 The complaint did contain a reference to a “Departmental Report”
number that was referenced during the Board hearing. There is nothing in
the complaint, however, that clearly links that number to the Board’s
February 2018 decision.
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Opinion of the Court
does not apply in actions for judicial review under the Act. See JRAD 1(b)
(“Except as provided elsewhere in these rules, the Arizona Rules of Civil
Procedure do not apply to proceedings held pursuant to [the Act].”).
¶16 In sum, because the Sheas failed to comply with § 12-904(A)’s
requirements, they failed to timely seek review “in the manner” required
by the Act. Under § 12-902, that defect deprived the superior court of
jurisdiction to review the Board’s decision under the Act. And, although the
court’s dismissal ruling did not address whether it might nonetheless
exercise special action jurisdiction, it did not err by failing to do so. See Glaze
v. Marcus, 151 Ariz. 538, 540 (App. 1986) (“We will affirm the trial court’s
decision if it is correct for any reason, even if that reason was not considered
by the trial court.”). Special action jurisdiction does not lie where there is an
equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act.
1(a); see also State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4 (App. 2001)
(explaining that special action jurisdiction “should be reserved for
‘extraordinary circumstances’”). The Sheas had an adequate avenue to
challenge the Board’s decision under the Act, one that was almost certainly
plainer and speedier than the one they chose. Their failure to properly
pursue that statutorily mandated remedy was fatal to the court’s
jurisdiction.
¶17 In finding the superior court lacked jurisdiction here, we do
not suggest that a mere mislabeled caption divests the court of jurisdiction
or that “in the manner” means anything more than what the Act plainly
states. We need not decide what would happen if a notice of appeal
contained a technical flaw, such as a typo in the date of the challenged
decision, but otherwise complied with the Act’s requirements. That
scenario bears little resemblance to the case before us. We decide only that
the superior court lacks jurisdiction where, as here, a plaintiff fails to timely
comply with the express manner requirements in § 12-904(A).
¶18 The Sheas and the dissent argue that manner defects, like
those in their original complaint, are not necessarily jurisdictional. The
Sheas base their argument on the reference to “any document” in § 12-
902(B), which provides 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. If under
the terms of the law governing procedure before an agency an
administrative decision becomes final because of failure to file
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Opinion of the Court
any document in the nature of an objection, protest, petition for
hearing or application for administrative review within the
time allowed by the law, the decision is not subject to judicial
review under the provisions of this article except for the
purpose of questioning the jurisdiction of the administrative
agency over the person or subject matter.
(Emphasis added). The “any document” language in the second sentence
of subsection (B), however, describes the myriad of ways a decision may
become unreviewable due to a party’s failure to pursue remedies at the
agency level. See Sw. Paint & Varnish Co. v. Ariz. Dep’t of Env’t Quality, 194
Ariz. 22, 24, ¶ 10 (1999) (“We read § 12–902(B) as encompassing the
traditional doctrine of exhaustion of administrative remedies. . . .”). That
broad language does not modify the first sentence of subsection (B), which
defines consequences for a party’s failure to seek judicial review “in the
manner” required by the Act in the superior court. See Legacy Found. Action
Fund, 243 Ariz. at 407, ¶ 15 (2018) (“The second sentence [of § 12-902(B)]
limits otherwise applicable appeal rights. . . .”). A contrary reading would
render the phrase “in the manner” superfluous, contrary to basic principles
of statutory construction. See Wyatt v. Wehmueller, 167 Ariz. 281, 284 (1991)
(explaining that, in interpreting an ambiguous statute, “the court must read
the statute as a whole, and give meaningful operation to all of its
provisions.”).
¶19 Going one step further, the dissent proposes we adopt a
harmless error standard that has no connection to, and indeed conflicts
with, the text of the Act. In essence, the dissent suggests that the appealing
party has properly invoked the superior court’s jurisdiction under the Act
when the other party is not confused about content of the appeal. But the
dissent’s free-form procedural proposal, which neither party advocated for
during briefing, is inconsistent with § 12-904’s express procedural
requirements and § 12-902’s jurisdictional bar. Moreover, a harmless error
standard would be fact-intensive and require resolution on a case-by-case
basis, which would undermine the legislature’s goal of efficient and simple
administration of judicial review. See A.R.S. § 12-903 (authorizing supreme
court to make procedural rules “for the purpose of making [the Act]
effective for the convenient administration of justice, and simplifying
procedure so far as it affects judicial review of administrative decisions.”).
A harmless error standard is also unnecessary because the Supreme Court
has plainly defined the procedural requirements for notices of appeal and
provided a roadmap for compliance by developing a user friendly form. See
JRAD 4(a), Form 1.
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Opinion of the Court
¶20 The dissent cites several cases in support of its proposal, but
the issues in those cases were the superior court’s special action jurisdiction
and this court’s appellate jurisdiction, not the superior court’s jurisdiction
under the Act. See Sheppard v. Ariz. Bd. of Pardons and Paroles, 111 Ariz. 587,
588 (1975) (considering whether superior court could exercise special action
jurisdiction over constitutional claim after plaintiff mistakenly alleged
jurisdiction under the Act); see also Boydston v. Strole Dev., 193 Ariz. 47,
49–50, ¶¶ 6, 9 (1998) (considering whether court of appeals had to dismiss
appeal from final judgment where notice of appeal was filed by corporation
rather than counsel); McKillip v. Smitty’s Super Valu, Inc. 190 Ariz. 61, 63
(App. 1997) (considering effect of notice of appeal that referenced
unappealable order rather than underlying judgment).
¶21 That jurisdictional difference matters because the filing
requirements for special actions and appeals to this court are procedural in
nature and governed by court rules. See Ariz. R.P. Spec. Act. 1(a) (“Special
forms and proceedings for these writs are replaced by the special action
provided by this Rule, and designation of the proceedings as certiorari,
mandamus, or prohibition is neither necessary nor proper.”); see also State
v. Birmingham, 96 Ariz. 109, 110 (1964) (“We now are of the opinion that[,]
while the right to appeal [under A.R.S. § 12-2101] is substantive[,] the
manner in which the right may be exercised is subject to control through
the use of procedural rules.”); ARCAP 8, 9(a) (defining timing and content
requirements for notice of appeal). In contrast, as described above, the filing
requirements for judicial review under the Act include statutory
prerequisites that impose substantive limits on the right to appeal. See § 12-
902(B); see also Holland, 120 Ariz. at 373 (“Judicial review of administrative
decisions is not a matter of right except when authorized by law.”); § 12-
903 (prohibiting court rules “inconsistent with” the Act). So, while Sheppard,
Boydston, and McKillip suggest that harmless violations of court rules,
including JRAD, may be curable, they do not suggest that similar leniency
is due with respect to statutory prerequisites limiting the right to judicial
review under the Act.4 Permitting such leniency would impermissibly
enlarge that substantive right to appeal.
4 The Sheas also largely failed to comply with JRAD 4, which provides
greater specificity on the proper way to file a notice of appeal under the Act.
Under JRAD 4, a party must file a “Notice of Appeal for Judicial Review of
Administrative Decision” that contains certain contents, some of which are
duplicative of the requirements in the Act. JRAD provides “a template for
the notice of appeal,” Form 1, that contains the correct caption and prompts
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Opinion of the Court
II. Grant of Summary Judgment on County’s Counterclaim
¶22 In its counterclaim, the County sought to enforce payment of
the fines imposed by the Department ($750 plus $75 per day while the
violations continued). See § 11-815(D) (authorizing civil penalties for
violations of zoning ordinances, with each day of continuance being a
separate offense). In their response to the County’s motion for summary
judgment, the Sheas argued that the County should not have fined them in
the first place and that the fines imposed were unreasonable and
unconstitutional. The superior court granted summary judgment in favor
of the County because it found the Sheas were attempting to “relitigate[e]
the facts” of their dismissed complaint. On appeal, the Sheas argue the
superior court should have considered evidence of their substantial
compliance with the MCZOs, contending that evidence would have created
material issues of fact.
¶23 The superior court must grant summary judgment “if the
moving party shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.” Ariz. R.
Civ. P. 56(a). In reviewing a grant of summary judgment, we review de
novo whether any genuine issues of material fact exist and whether the
superior court properly applied the law. Sign Here Petitions LLC v. Chavez,
243 Ariz. 99, 104, ¶ 13 (App. 2017). We view the facts in the light most
favorable to the Sheas, as the non-moving parties. Id.
¶24 Here, the Sheas did not dispute that the Department fined
them for violating the MCZOs and that they had not paid the fines. And
they did not offer evidence showing the violations had ceased, i.e., that they
had obtained new permits or removed the unpermitted structures. Thus,
there was no dispute about any fact material to the County’s counterclaim.
The Sheas cite no authority suggesting that substantial compliance is a
defense to a claim to enforce fines for zoning violations. Indeed, any
violation of a zoning ordinance constitutes a public nuisance. § 11-815(C);
see also MCZO § 1502.3. The Sheas’ substantial compliance evidence appears
for all of the content required. JRAD 4(a), Form 1. Had the Sheas complied
with the Act’s requirements but failed to comply fully with JRAD 4, the
dissent’s harmless error standard might have been appropriate. But even
under that standard, we do not agree that the Sheas’ procedural
machinations caused no confusion. While the County did concede at oral
argument it “w[as] aware [the Sheas] were appealing,” it asserted it “had
no idea what they were appealing” because the Sheas original complaint did
not include a statement of the issues presented for review.
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Opinion of the Court
to go to their argument that the Department should not have fined them in
the first place. But that argument was foreclosed when the superior court
dismissed their complaint. Because the facts material to the County’s
counterclaim were not in dispute, the County was entitled to summary
judgment.
CONCLUSION
¶25 We affirm. Appellees may recover their taxable costs incurred
in this appeal upon compliance with ARCAP 21.
C A T T A N I, Chief Judge, dissenting:
¶26 I disagree that the Sheas’ complaint in superior court was
jurisdictionally barred. The Sheas’ original complaint was timely filed, and
it was submitted in the correct court. The complaint also identified—albeit
inartfully—the decision being challenged and issues to be reviewed. From
my perspective, concluding that the complaint was jurisdictionally barred
places form over substance and improperly denies the Sheas their day in
court. Accordingly, I respectfully dissent.
¶27 As it turns out, I agree with the Majority on almost
everything. I agree (see supra ¶ 12) that the Administrative Review Act (the
“Act”), A.R.S. §§ 12-901 to -914, is the proper vehicle for seeking judicial
review of the Board’s final decision in this type of Board proceeding. A.R.S.
§ 11-816(B)(3). I likewise agree (see supra ¶¶ 12–13) that the Act imposes:
(1) a time requirement—the appeal must be filed within 35 days of service
of the decision to be reviewed, see A.R.S. § 12-904(A); (2) a place
requirement—the appeal must be filed in the superior court, not with the
administrative body, see A.R.S. § 12-905(A); see also Johnson v. Ariz. Registrar
of Contractors, 242 Ariz. 409, 411–12, ¶¶ 6–9 (App. 2017); and (3) a manner
requirement—for our purposes, the criteria set forth in § 12-904(A). I also
agree (see supra ¶ 12) that the Act provides two substantive “manner”
requirements: the notice of appeal must “identify the final administrative
decision sought to be reviewed” and must “include a statement of the issues
presented for review” (which is deemed to encompass subsidiary issues).
A.R.S. § 12-904(A); see also A.R.S. § 12-909(A). And I agree (see supra ¶ 13)
that the Act makes failure to comply with these requirements—that is,
failure to seek review “within the time and in the manner provided” by the
Act—a jurisdictional defect. A.R.S. § 12-902(B); see also Ariz. Dep’t of Econ.
Sec. v. Holland, 120 Ariz. 371, 373 (App. 1978) (requiring strict compliance
with the Act’s requirements “to achieve entrance to appellate review”).
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Cattani, C.J., dissenting
¶28 The Majority and I also agree (see supra ¶ 14) that—at least as
to the Sheas’ original complaint—the time and place requirements were met:
that complaint was filed within the 35-day time limit, and it was correctly
filed in the superior court. We likewise agree (see supra ¶ 17) that a technical
manner defect—here, for example, the fact that the Sheas improperly
captioned their complaint as a special action rather than a “notice of
appeal,” see A.R.S. § 12-904(A)—does not necessarily create a jurisdictional
bar.
¶29 We part ways only when it comes to whether the Sheas met
the substantive manner requirement that their filing identify (1) the decision
being challenged and (2) the issues to be reviewed. See A.R.S. § 12-904(A).
In my view, the Sheas’ original complaint identified both, albeit in a
roundabout way.
¶30 Regarding the decision being challenged, the Sheas’ original
complaint flagged the underlying proceedings before a hearing officer,
specifically noting the “December 12, 2017 [] hearing” that led to a one-page
December 20, 2017 judgment (a copy of which was attached). The
complaint explained that “[o]n or about January 10, 2018, [the Sheas]
appealed the hearing officer’s decision to the [Board],” and that “[t]he
Board denied [the Sheas’] appeal.” The complaint then stated that the Sheas
“file this appeal” as they “[h]av[e] been aggrieved by a decision made by
the Board.”
¶31 In my view, this recital sufficed to “identify the final
administrative decision sought to be reviewed.” See A.R.S. § 12-904(A). To
be sure, the complaint took a circuitous route and asserted special action
jurisdiction as well as appellate jurisdiction under the wrong subsection of
§ 11-816. But read together, the cited assertions in the complaint showed
that the Sheas were seeking review of the Board’s decision to affirm the
hearing officer’s one-page ruling after the December 12, 2017 hearing.
¶32 Regarding issues to be reviewed, the Sheas’ original
complaint flagged the Planning & Development Department’s finding of a
building permit violation, which in turn precipitated the hearing that led to
the judgment affirmed by the Board. The complaint then, albeit couched as
a request for declaratory relief, asserted “that the Department’s finding and
ruling was not supported by fact or law” and that the Sheas thus should
“owe no fines or penalties.” The complaint further alleged that the Sheas
“ha[d] been denied their right to procedural due process” by the
Department’s failure “to provide responsive documents to the proper
requests,” including by opposing the Sheas’ “discovery motion . . . filed
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Cattani, C.J., dissenting
with the hearing officer.” Requested relief included overturning the ruling
or remanding for rehearing.
¶33 From my perspective, the complaint thus provided at least a
bare minimum “statement of the issues presented for review.” See A.R.S. §
12-904(A). Although the issues were expressed awkwardly, a fair reading
of the complaint reflected a challenge to the factual and legal basis for the
hearing officer’s ruling (as affirmed by the Board) and alleged prejudicial
procedural errors. No more detail is required, especially given the statutory
directive that the issues stated are deemed to encompass subsidiary issues.
See A.R.S. § 12-904(A).
¶34 The Majority opines otherwise, reasoning that the Sheas’
original complaint did not meet § 12-904(A)’s manner requirement because
it ostensibly “did not specify the final Board decision being challenged or
identify any issues related to that decision” and instead “only vaguely
referenced the Board’s denial of the Sheas’ appeal.” See supra ¶ 14. The
complaint certainly could have been more clear. The relevant issues were
scattered through the complaint, and the complaint sometimes conflated
the Department’s actions with the hearing officer’s decision as affirmed by
the Board. The complaint also included claims—like the Department’s
allegedly retaliatory motive—not properly raised in an appeal of the
Board’s decision under the Act. See A.R.S. § 12-910(F) (describing scope of
review under the Act).
¶35 But the issue here is not whether the complaint was perfectly
persuasive on the merits or crafted with clarity. The issue is jurisdiction—
baseline access to judicial review. For that purpose—and consistent with
our often-expressed preference to disregard technical defects and address
the merits of the cases before us—I remain unpersuaded that the Act
deprives the court of jurisdiction based on technical flaws when an
application for relief otherwise includes the substantive material required
for review. Cf., e.g., Sheppard v. Ariz. Bd. of Pardons & Paroles, 111 Ariz. 587,
588 (1975) (requiring the superior court to permit amendment of a
complaint to cure an erroneous assertion of jurisdiction under the Act by
invoking special action jurisdiction based on the principle that “this Court
will consider any application ‘which states sufficient facts to justify relief
irrespective of its technical denomination’” (citation omitted)); Boydston v.
Strole Dev. Co., 193 Ariz. 47, 50, ¶ 12 (1998) (holding that a “defective notice
of appeal does not necessarily deprive the court of appeals of jurisdiction”
and may instead be cured “if it is neither misleading nor prejudicial to the
appellee”); McKillip v. Smitty’s Super Valu, Inc., 190 Ariz. 61, 62 (App. 1997)
(noting that this court “review[s] notices of appeal liberally, disregarding
13
SHEA, et al. v. MARICOPA, et al.
Cattani, C.J., dissenting
technical, harmless errors in favor of disposition on the merits”); Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008) (reaffirming the notice
pleading standard for civil complaints); Clemens v. Clark, 101 Ariz. 413, 414
(1966) (reiterating our long-standing preference to decide cases on the
merits).
¶36 Tellingly, neither the County nor the first superior court judge
to rule on this matter had any trouble discerning the decision challenged or
the issues raised based on the Sheas’ original complaint. The County’s
motion to dismiss acknowledged that “the ruling with which [the Sheas]
take exception was that of the hearing officer,” that the Sheas had appealed
that ruling to the Board, and that the Sheas’ complaint sought “[r]eversal,
modification or remand” of the Board’s decision based on an assertion
(among other arguments) that the “ruling was not supported by fact or
law.” The first judge likewise acknowledged the complaint’s defects but
concluded that “[t]he defects found as to [the Sheas’] filing are not
jurisdictional in nature,” meaning dismissal was inappropriate and that
leave to amend was the proper remedy. The fact that the County and court
understood the decision being challenged and (at least in general terms) the
issues raised is a strong indicator that the Sheas’ original complaint in fact
satisfied the substance requirement under § 12-904(A).5
¶37 In sum, I acknowledge the shortcomings of the Sheas’ filing,
but I disagree with the Majority’s conclusion that the Sheas’ complaint was
jurisdictionally barred. Miscaptioned and inartfully stated though it was,
the Sheas’ original complaint minimally complied with the statutory time,
place, and manner requirements necessary to invoke the court’s jurisdiction
under the Act. I thus hesitate to construe the Sheas’ errors as creating a
jurisdictional defect—particularly when it seems abundantly clear that the
County understood (based only on the complaint itself) what decision the
Sheas were attempting to appeal and the issues they sought to have
reviewed. Accordingly, I would reverse the dismissal, vacate the judgment
on the County’s counterclaim (which depended on viability of the
underlying administrative decision), and remand to address the merits of
the Sheas’ claims.
5 Counsel for the County in fact conceded during oral argument in this
court that the County “w[as] aware [the Sheas] were appealing.”
Although—as the Majority notes, see supra ¶ 21 n.4—counsel went on to
state that the County “had no idea what [the Sheas] were appealing,” that
assertion is unpersuasive given the County’s motion to dismiss detailing its
view of what the Sheas were appealing.
14
SHEA, et al. v. MARICOPA, et al.
Cattani, C.J., dissenting
¶38 For these reasons, I respectfully dissent.
AMY M. WOOD • Clerk of the Court
FILED: AA
15