In His Official Capacity As Maricopa County Attorney v. Maricopa County Bd. Of Supervisors

• Decision Date: 19 August 2010
• Docket Number: No. 1 CA-CV 09-0456.,1 CA-CV 09-0456.
• Citation: 225 Ariz. 358,238 P.3d 626,589 Ariz. Adv. Rep. 22
• Parties: Joseph ARPAIO, in his official capacity as Maricopa County Sheriff; and Richard M. Romley, in his official capacity as Maricopa County Attorney, Plaintiffs/Appellants, v. MARICOPA COUNTY BOARD OF SUPERVISORS and its members; Fulton Brock; Don Stapley; Andrew Kunasek; Max Wilson; and Mary Rose Wilcox, in their official capacities as Maricopa County Supervisors; and the State of Arizona, Defendants/Appellees.
• Court: Arizona Court of Appeals

225 Ariz. 358

238 P.3d 626

589 Ariz. Adv. Rep. 22

Joseph ARPAIO, in his official capacity as Maricopa County Sheriff; and Richard M. Romley, in his official capacity as Maricopa County Attorney, Plaintiffs/Appellants,

v.MARICOPA COUNTY BOARD OF SUPERVISORS and its members; Fulton Brock; Don Stapley; Andrew Kunasek; Max Wilson; and Mary Rose Wilcox, in their official capacities as Maricopa County Supervisors; and the State of Arizona, Defendants/Appellees.

No. 1 CA-CV 09-0456.

Court of Appeals of Arizona,Division 1, Department A.

Redesignated as Opinion and Publication Ordered Aug. 19, 2010.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. by L. Eric Dowell, Leah S. Freed, Kerry S. Martin, Phoenix, Attorneys for Plaintiffs/Appellants.

Polsinelli Shughart PC by Thomas K. Irvine, Phoenix, Attorneys for Defendant/Appellee Maricopa County.

Terry Goddard, Attorney General by William A. Richards, Assistant Attorney General, Mark P. Bookholder, Assistant Attorney General, Phoenix, Attorneys for Defendant/Appellee State of Arizona.

C. Steven McMurry, Justice of the Peace, Phoenix, Gerald A. Williams, Justice of the Peace, Surprise, Amicus Curiae for Maricopa County Justices of the Peace.

OPINION

WINTHROP, Judge.

¶ 1 The Maricopa County Sheriff and Maricopa County Attorney ¹ (“Appellants”) challenge a superior court ruling denying Appellants' motion for summary judgment, granting Appellees' cross-motion for summary judgment, and dismissing Appellants' claims. For the following reasons, we affirm the superior court's ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2 In June 2008, the Arizona Legislature passed, and Governor Janet Napolitano signed, House Bill 2275 (the “bill”), which included the Health and Welfare Reconciliation Act. 2008 Ariz. Sess. Laws, ch. 288 (2d Reg.Sess.). Section 10 of the bill required each county to transfer a sum of money, based on population size, to the Arizona Health Care Cost Containment System Administration (“AHCCCS”). Senate Bill 1004 later amended the bill to provide for deposit of the transferred monies into the State's general fund. ² 2009 Ariz. Sess. Laws, ch. 288, § 10 (1st Spec.Sess.). Maricopa County's share of the reconciliation was $24,168,400, and to comply with the bill, the Maricopa County Board of Supervisors (“Board”) voted to designate and transfer sums from twenty-six special revenue funds. ³ Id. ¶ 3 On February 27, 2009, Appellants filed suit against the Board, its individual members, and the State of Arizona, ⁴ seeking injunctive relief and a declaratory judgment, alleging the Board unlawfully seized more than $24 million from special revenue funds established for the use and administration of the County Sheriff, the County Attorney, and other Maricopa County elected officials, agencies, and departments. Appellants filed a motion for summary judgment and the State and County filed cross-motions for summary judgment. In a detailed minute entry ruling dated June 10, 2009, the superior court denied Appellants' motion and granted those filed by the State and County. On June 22, 2009, the County transferred $24,168,400 to the State.

¶ 4 Appellants timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101 (2003). ⁵

ANALYSIS

¶ 5 The Sheriff argues that the superior court erred when it entered judgment in favor of Appellees. Further, he questions the constitutionality of the bill and the superior court's finding that the legislature implicitly amended the enabling statutes of the designated funds when it passed the bill.

¶ 6 We apply a de novo standard of review to grants of summary judgment and when interpreting statutes and constitutional claims. State v. Casey, 205 Ariz. 359, 362, ¶ 8, 71 P.3d 351, 354 (2003) (constitutionality of statute); Bentley v. Building Our Future, 217 Ariz. 265, 270, ¶ 11, 172 P.3d 860, 865 (App.2007) (grant of summary judgment and statutory interpretation).

1. Mootness

¶ 7 The County argues that the issues the Sheriff now presents are moot because it completed the $24,168,400 transfer to the State in June of 2009. “A case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties.” Sedona Private Prop. Owners Ass'n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5, 961 P.2d 1074, 1075 (App.1998). Recognizing and declining to rule on moot issues is a “discretionary policy of judicial restraint.” Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 119, 912 P.2d 1345, 1348 (App.1995).

¶ 8 The County's argument is premised on the fact that any declaratory relief this court might grant the Sheriff would be without practical effect. The funds at issue are no longer within the County's control; they are irretrievable. The Sheriff had notice that such transfer was going to occur, yet did not seek to stay the effect of the superior court ruling, either in that court or in this court. Additionally, despite such notice, the Sheriff did not seek immediate appellate review by way of special action before the funds were transferred.

¶ 9 The Sheriff argues, in part, that the case is not moot, and that the appeal raises issues of “public importance” such that we should ignore the mootness doctrine; however, the relative importance of these issues is arguably a matter of conjecture. Through its budget reconciliation, the legislature mandated a one-time transfer of funds to satisfy a designated year's budgetary shortfall. That fiscal year, 2009, has long passed and in light of the economic realities, we have every reason to believe the State has already spent these funds.

¶ 10 Additionally, following oral argument in this matter, we directed counsel to file supplemental briefs to address whether the operation of Arizona's notice of claim statute, A.R.S. § 12-821.01 (2003), and the fact that no notices of claim had been filed against either governmental entity, also would render the Sheriff's claims moot.

¶ 11 As it relates to any claim against the State, the Sheriff's amended complaint merely sought declaratory relief. We agree with the Sheriff that one who seeks declaratory relief need not comply with A.R.S. § 12-821.01. See Home Builder's Ass'n of Cent. Ariz. v. Kard, 219 Ariz. 374, 381, ¶ 31, 199 P.3d 629, 636 (App.2008). However, even assuming a favorable declaration by this court, to the extent the Sheriff then would seek recovery of some or all of the $24 million from the State, such a claim would indeed constitute the type of claim requiring compliance with the notice of claim statute. Of necessity, the latest date such a claim against the State would have accrued would be the date the County transferred the funds, or June 22, 2009. Accordingly, the deadline for submitting a notice of claim-a necessary predicate to maintaining a damages claim against the State-occurred in December of 2009.

¶ 12 The claims against the County Board of Supervisors and its individual members require a slightly different analysis. The amended complaint, purportedly seeking only declaratory and injunctive relief, does in its formal prayer for relief ask the court to order the Board to “reinstate” the unencumbered status of the subject funds. In the context of the current status of the litigation, however, it is unclear exactly how such relief could be obtained, even assuming a favorable ruling on appeal. Presumably, the Sheriff would contend via further amendment of the complaint or by separate action that these specialty funds would need to be “replenished,” with the Board directing the reallocation of other funding within the County's budget. Under these circumstances, it seems logical to treat the Sheriff's contention as the equivalent of a damages claim, seeking recovery of funds he argues were inappropriately taken. Accordingly, such a claim is also subject to the notice of claim statute, and the time for filing that claim has long since passed.

¶ 13 The Sheriff argues, however, that even assuming the notice of claim statute applies, Appellees have waived the protection of the statute by failing to raise the issue in a motion to dismiss the appeal. Consideration of waiver starts with examining Appellees' conduct after the notice of claim deadline has passed. See Jones v. Cochise County, 218 Ariz. 372, 379, ¶ 23, 187 P.3d 97, 104 (App.2008) (“Waiver by conduct must be established by evidence of acts inconsistent with an intent to assert the right” (citation omitted)). Here, such a deadline passed in late December of 2009. The only action taken by Appellees after that date was to appear for an oral argument requested by the Sheriff's counsel and ordered by this court. Under these circumstances, we are reluctant to find that Appellees have waived their right to assert the affirmative bar that § 12-821.01 creates.

¶ 14 At the same time, however, we recognize that application of the mootness doctrine is a discretionary decision. And, while injunctive relief is no longer an issue, declaratory relief can still issue independently of a request or grant of other special relief. Sandblom v. Corbin, 125 Ariz. 178, 182, 608 P.2d 317, 321 (App.1980) (citations omitted). While the Sheriff's contentions in this appeal may indeed be moot, we also recognize that a decision on the substantive issues could affect similar future legislative acts; accordingly, we exercise our discretion to address the merits of the Sheriff's appeal.

2. Board's Authority to Seize/Transfer Funds

¶ 15 The Sheriff argues the superior court erred in finding the Board had the legal authority to seize and transfer the designated funds to the State. We disagree.

a. The Designated Funds Were Public Funds

¶ 16 First, despite the Sheriff's argument to the contrary, the court correctly determined the designated statutory funds (“statutory funds”) were public funds and not funds held in trust by the County. “Public funds” are funds belonging to the State, subject to the legislature's power to amend their appropriation. Navajo Tribe v....