Clark v. Campbell

• Decision Date: 10 July 2008
• Docket Number: No. 1 CA-CV 07-0529.,1 CA-CV 07-0529.
• Parties: Constable Annette CLARK, Constable of Arcadia Biltmore (f/k/a East Phoenix Two) Justice Precinct, Plaintiff/Appellant, v. Honorable Colin CAMPBELL, Maricopa County Superior Court Judge; Honorable Barbara Rodriguez Mundell, Maricopa County Superior Court Judge; Honorable Michael Orcutt, Arcadia Biltmore (f/k/a East Phoenix Two) Justice Court; David R. Smith, County Administrative Officer; Joseph Arredondo, Constable; Don Calendar, Constable; Doug Middleton, Constable; Phil Hazlett, Constable; Murel Stephens, Constable; Gary Wilson, Deputy Constable; Robert White, Deputy Constable; John Powers, Constable; Gilbert Trejo, Deputy Constable, Defendants/Appellees.
• Court: Arizona Court of Appeals

193 P.3d 320 219 Ariz. 66 Constable Annette CLARK, Constable of Arcadia Biltmore (f/k/a East Phoenix Two) Justice Precinct, Plaintiff/Appellant,
v.
Honorable Colin CAMPBELL, Maricopa County Superior Court Judge; Honorable Barbara Rodriguez Mundell, Maricopa County Superior Court Judge; Honorable Michael Orcutt, Arcadia Biltmore (f/k/a East Phoenix Two) Justice Court; David R. Smith, County Administrative Officer; Joseph Arredondo, Constable; Don Calendar, Constable; Doug Middleton, Constable; Phil Hazlett, Constable; Murel Stephens, Constable; Gary Wilson, Deputy Constable; Robert White, Deputy Constable; John Powers, Constable; Gilbert Trejo, Deputy Constable, Defendants/Appellees. No. 1 CA-CV 07-0529. Court of Appeals of Arizona, Division 1, Department E. July 10, 2008.

[193 P.3d 321]

Jones Skelton & Hochuli, PLC By Georgia A. Staton and Taylor C. Young, Phoenix, Attorneys for Plaintiff/Appellant.

Terry Goddard, Attorney General, Phoenix, By Bryan E. Schmid, Assistant Attorney General, Tucson, Attorneys for Defendants/Appellees Colin Campbell and Barbara Rodriguez Mundell.

Law Office of Dean Wolcott By Dean M. Wolcott, Phoenix, Attorneys for Defendants/Appellees Michael Orcutt, David R. Smith, Joseph Arredondo, Don Calendar, Doug Middleton, Phil Hazlett, Murel Stephens, Gary Wilson, Robert White, John Powers, and Gilbert Trejo.

OPINION

NORRIS, Judge.

¶ 1 In this appeal, we examine the supervisory authority a superior court presiding

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judge has over justice court constables, whether that authority allows the presiding judge to impose disciplinary sanctions against a constable and, if so, what procedures a presiding judge must follow in taking such action. For the following reasons, we hold a presiding judge has supervisory authority to impose disciplinary sanctions against a constable but, in exercising that authority, the presiding judge must give the constable notice, an opportunity to be heard, and an explanation of why such discipline is necessary.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In November 2000, Annette Clark was elected to a four year term as Constable for Maricopa County's East Phoenix # 2 Justice Precinct ("Precinct").¹ On May 16, 2002, the Maricopa County Justice System Coordinator wrote to the Constable Ethics Committee² and informed it that, after Clark took office on January 1, 2001, "[c]itizens, litigants and public employees" had made regular formal and informal complaints to Maricopa County about Clark's "lack of professionalism, rudeness toward county and court staff as well as citizens, and a lack of diligence in performing her duties."

¶ 3 On July 23, 2002, the Constable Ethics Committee announced it had reprimanded Clark "for misconduct in office and other violations of the Code of Conduct for Constables" and "voted to urge Ms. Clark to retire from office" (the "Reprimand"). See A.R.S. § 22-136(D).

¶ 4 On August 2, 2002, Maricopa County Superior Court Judge Cathy M. Holt issued an Injunction Against Workplace Harassment ("Injunction") against Clark. The Injunction prohibited Clark from entering the East Phoenix #2 Justice Court ("Justice Court") building except "to retrieve or pick up documents for service or to return documents that have been served or to ask questions re: same of Judge Michael Orcutt." It also prevented her from communicating with certain Justice Court staff members. As a result, Clark's office was relocated to another justice court building. In January 2003, the superior court amended the Injunction to prevent Clark from entering the Justice Court building and ordered Maricopa County to transport all legal process for service, returned process, and any other documents between Clark's new office and the Justice Court building.

¶ 5 Several months later, relying on A.R.S. § 22-131(A) (Supp.2007),³ the Honorable Colin Campbell, as the Presiding Judge of the Maricopa County Superior Court ("Presiding Judge"), advised Clark her services in attending the Justice Court would not be needed and the Justice Court would no longer be directing any process to her for service. His letter, dated October 14, 2003, stated in full:

Pursuant to A.R.S. § 22-131(A), you are hereby noticed that for the duration of your term as Constable, your services in attending the East Phoenix Two Justice

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Court are no longer required. The Court will no longer be directing to you any process or notice for service or return.

The next day, Maricopa County's Administrative Officer wrote to Clark:

We have been advised by the Maricopa County Superior Court that effective this date your services are no longer required by them in serving court documents in Maricopa County.

You are being personally served the Maricopa County Superior Court directive and this letter by the Maricopa County Sheriff's Office. As a result of the Court's action, you are hereby ordered to surrender all items of County property including but not limited to:

• 2 metal Constable badges,

• Any and all County issued identification cards,

• Pagers, and

• Any documents and court papers previously issued to you by the Maricopa County courts, including those documents previously served and those pending service.

Effective today, your access to County facilities will be limited to that of the general public.

¶ 6 Consistent with these letters, on October 17, 2003, the Presiding Judge issued Administrative Order No. 2003-102:

The Court having determined that process for East Phoenix Justice Court Number Two need not be served by Constable Annette Clark, her services not being required,

IT IS ORDERED:

Constable Clark shall return all process, court logs required to be kept pursuant to statute and paperwork on court matters to Betty Adams, the Constable Administrator, immediately, but no later than noon on Tuesday, October 21, 2003.

¶ 7 Clark continued to receive her salary while interim constables performed her duties. On November 2, 2004, Clark was re-elected for another four year term as Constable. On November 30, 2004, the Presiding Judge again wrote to Clark:

Pursuant to A.R.S. § 22-131(A), you are hereby notified that your services in attending the East Phoenix Two Justice Court are not required during your next term of office commencing January 1, 2005. The Court will not direct to you any process or notice for service or return. Should the situation change, we will notify you.

¶ 8 After the Maricopa County Attorney's Office denied Clark's request to bring a quo warranto action on her behalf, Clark filed a complaint in quo warranto in her own name. See A.R.S. §§ 12-2042, -2043 (2003) (if county attorney refuses to bring action in quo warranto, party may petition the court to accept action brought in own name). Clark named the Presiding Judge as a defendant. Additionally, she named as defendants the Presiding Justice of the Peace for the Precinct, the Maricopa County Administrative Officer, and seven constables and deputy constables who were performing her duties (collectively, "County Defendants"). She alleged the Presiding Judge and certain of the County Defendants had "deprived [her] from her duly elected position as Constable ... without legal cause or due process."

¶ 9 The Presiding Judge moved to dismiss Clark's complaint asserting Clark was not entitled to bring a quo warranto action. The County Defendants joined the Presiding Judge's motion and also asserted Clark had failed to state a claim because she still held the office of constable. Before the court could rule on the pending motions, Clark moved for summary judgment and essentially asserted the Presiding Judge and the County Defendants had constructively removed her from office without authority to do so and in violation of her right to due process. After the parties filed additional motions and memoranda addressing these and related issues, the superior court⁴ dismissed the complaint, reasoning it did not have jurisdiction because Clark's complaint was in essence a lateral appeal from the superior court's Injunction and the Presiding

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Judge's Administrative Order. Clark appealed.

¶ 10 In a memorandum decision, we concluded the superior court had jurisdiction over Clark's action because she was "challeng[ing] the propriety of the presiding judge's directives regarding the East Phoenix No. 2 constable position." Clark v. Campbell, 1 CA-CV 05-0301, at 14, ¶ 29 (Ariz.App. June 29, 2006) (mem.decision) ("Clark I"). We also expressed general agreement with the Presiding Judge's argument that "if [the presiding judge] determines that a court official, including an elected official, is not doing the job adequately, his administrative duties require him to take corrective action." Id. at 12, ¶ 28 (internal quotation marks omitted). We did not decide whether the actions taken by the Presiding Judge regarding Clark ("the supervisory actions") exceeded the scope of his supervisory authority. We remanded for further proceedings.

¶ 11 On remand, Clark amended her complaint to request special action and declaratory relief alleging the Presiding Judge had acted arbitrarily, capriciously, and outside his legal authority in taking the supervisory actions.⁵ In addition, she asked the court to enjoin the Presiding Judge and the County Defendants "from interfering with the performance of [her] duties" as constable.

¶ 12 Clark eventually moved for summary judgment and argued the Presiding Judge had no authority to take the supervisory actions against her and had done so in violation of her due process rights to notice and an opportunity to be heard.

¶ 13 In response, the Presiding Judge argued he had been granted administrative supervision over the justice of the peace courts within Maricopa County and, pursuant to that authority, was authorized to supervise both the operations of the justice courts and their personnel, including Clark. Although the Presiding Judge did not provide the court with any evidence he had...