Birdsall v. Pima County

• Decision Date: 09 October 1970
• Docket Number: No. 10094,10094
• Citation: 106 Ariz. 266,475 P.2d 250
• Parties: Ben C. BIRDSALL, Judge of the Superior Court of the State of Arizona, in and for the County of Pima and Judge of the Juvenile Court of Pima County, Petitioner, v. PIMA COUNTY, a body politic, the Board of Supervisors of Pima County, and Thomas Jay, Dennis Weaver and James J. Murphy, Members of the Board of Supervisors of Pima County, Respondents.
• Court: Arizona Supreme Court

Page 250

475 P.2d 250

106 Ariz. 266

Ben C. BIRDSALL, Judge of the Superior Court of the State of Arizona, in and for the County of Pima and Judge of the Juvenile Court of Pima County, Petitioner, v. PIMA COUNTY, a body politic, the Board of Supervisors of Pima County, and Thomas Jay, Dennis Weaver and James J. Murphy, Members of the Board of Supervisors of Pima County, Respondents.

No. 10094.

Supreme Court of Arizona, In Banc.

Oct. 9, 1970.

Molloy, Jones, Hannah, Trachta & Coolidge, Tucson, for petitioner.

Robert N. Hillock, Tucson, for respondents.

HAYS, Justice.

Petitioner, Judge of the Juvenile Court of Pima County, comes before this Court with a petition for special action urging this court to command respondent Board of Supervisors of Pima County to formally approve and put into effect petitioner's order fixing salaries for employees of the Juvenile Court of Pima County.

The following facts are undisputed. Petitioner, on February 4, 1970, met with the members of the respondent Board and advised them that he wished to submit a new salary schedule for employees of the Juvenile Court. This proposed schedule was delivered by petitioner to the Board on March 4, 1970 at which time petitioner urged the Board to act promptly on the matter. After receiving no communication from the Board, petitioner, on March 26, 1970 informed the Board by letter that unless an agreement was reached between petitioner and respondent Board in the meantime, petitioner would adopt the new schedule effective April 15, 1970. Subsequently, on April 13, 1970, petitioner entered an order putting the new salary schedule into effect. Respondent, on April 24, 1970, adopted a resolution ordering its Clerk to petition the State Tax Commission of Arizona for authority to make unanticipated and emergency expenditures for the balance of Pima County's fiscal year ending June 30, 1970. This petition included the increased salaries provided by petitioner's order. On May 20, 1970 the Commission granted respondent authority to exceed its budget for the items set forth in the petition including $18,900 for the increased salaries created by petitioner's order. The Board did not, however, approve and put into effect petitioner's order. Consequently, the employees of the Juvenile Court of Pima County remained on the salary schedule in effect prior to April 13, 1970.

The presiding judge of the juvenile court is empowered under 2 A.R.S. §§ 8-- 204 and 8--205 to appoint employees of the juvenile court and fix their salaries. ¹ The power to appoint employees is set forth in § 8--204 which states:

'A. The judge presiding in the juvenile court may appoint a chief probation officer, a deputy probation officer and such additional deputy probation officers, not exceeding one for each fifty persons on probation, as he deems necessary. In counties of the first class the judge may appoint necessary office assistants.'

The power of the judge to fix the salaries of these appointed employees is set forth in § 8--205:

'The salary of the chief probation officer of the juvenile court in each county, his deputies, assistants and all other employees, shall be fixed by the judge presiding in the juvenile court, With the approval of the board of supervisors, and shall be a county charge.' (Emphasis added).

In the instant case there is no dispute that Pima County is a county of the first class and that therefore the judge is authorized to appoint necessary office assistants in addition to the various probation officer positions set forth in § 8--204. Nor is there any dispute that the judge may fix the salaries of these employees under § 8--205. The dispute arises over the meaning of the phrase 'with the approval of the board of supervisors' in § 8--205. In other words, what is the scope of the Board of Supervisors' authority in approving or disapproving the salaries fixed by the judge.

This Court decided a similar issue in Powers v. Isley, 66 Ariz. 94, 183 P.2d 880 (1947) where § 19--404, A.C.A., 1939, provided that the salaries of court reporters '* * * shall be fixed by the judge of the court with the approval of the board of supervisors of the county * * *.' We held there that:

'The province of the Board of Supervisors in connection with the approval of the salary fixed by the judge as provided in § 19--404, is interpreted to be that the Board of Supervisors have the power to approve or disapprove the salary fixed by the judge for the court reporter. That in performing this duty the Board of Supervisors must exercise discretion, but they must act in a reasonable manner and not arbitrarily or capriciously in disapproving such salary. Neither must the judge in fixing the salary act arbitrarily or capriciously or unreasonably.' 66 Ariz. at page 106, 183 P.2d at page 888.

More recently, in Mann v. County of Maricopa, 104 Ariz. 561, 456 P.2d 931 (1969) we quoted with approval the following language from Smith v. Miller, 153 Colo, 35, 384 P.2d 738 (1963):

"We hold that the district judges of the Fourth Judicial District are empowered to fix the salaries of ite employees. We further hold, in the absence of a clear showing that the acts of the judges in fixing such salaries were arbitrary and capricious and that the salaries so fixed are unreasonable and unjustified, that it is the ministerial duty of the county commissioners to approve them and to provide the means for payment...