Jett v. City of Tucson

• Decision Date: 29 September 1994
• Docket Number: No. CV-94-0042-T,CV-94-0042-T
• Parties: Rita JETT, Plaintiff/Appellee, v. CITY OF TUCSON, a municipal corporation; City Court of the City of Tucson, a municipal court; Mayor George Miller; Councilman Bruce Wheeler; Councilwoman Janet Marcus; Councilman Michael Haggerty; Councilman Roger M. Sedlmayr; Councilman Steve Leal; and Councilwoman Molly McKasson, Defendants/Appellants. /AP.
• Court: Arizona Supreme Court

Page 426

882 P.2d 426

180 Ariz. 115

Rita JETT, Plaintiff/Appellee, v. CITY OF TUCSON, a municipal corporation; City Court of the City of Tucson, a municipal court; Mayor George Miller; Councilman Bruce Wheeler; Councilwoman Janet Marcus; Councilman Michael Haggerty; Councilman Roger M. Sedlmayr; Councilman Steve Leal; and Councilwoman Molly McKasson, Defendants/Appellants.

No. CV-94-0042-T/AP.

Supreme Court of Arizona, In Banc.

Sept. 29, 1994.

[180 Ariz. 117] O'Dowd, Burke & Lundquist, P.C. by Bruce A. Burke, Tucson, for plaintiff/appellee.

Office of the Tucson City Atty. by Tobin Rosen, Tucson, for defendants/appellants.

Shelley & Bethea by J. LaMar Shelley, Gen. Counsel, Mesa, for amicus curiae League of Arizona Cities and Towns.

OPINION

CORCORAN, Justice.

We are asked to determine whether a city council, acting under the authority provided by its city charter, may remove a magistrate from office for judicial misconduct. Because this issue affects numerous cities and towns in this state, we granted the court of appeals' petition to transfer the case to this court. We have jurisdiction pursuant to rule 19(c), Arizona Rules of Civil Appellate Procedure.

FACTUAL AND PROCEDURAL BACKGROUND

Rita Jett had served as a magistrate for the City of Tucson for more than 8 years when she was reappointed in March 1993 for her third consecutive term. On June 21, 1993, the Tucson City Council held an executive session to discuss the events of June 12 involving Jett's alleged misconduct in releasing her live-in boyfriend from police custody. These events are set forth in detail in the companion case of In re Jett, 180 Ariz. 103, 882 P.2d 414 (1994), and therefore, we will not reiterate them here. At the end of the June 21 executive session, the City Council voted to suspend Jett from her position as magistrate.

The following day, Jett was served with a "Notice of Intent to Discharge." The notice informed Jett that a hearing would be held on June 28, at which time she would be given an opportunity to present reasons why the proposed discharge should not occur. Both Jett and her attorney were present at the June 28 hearing, and both participated in the proceedings. Jett and other witnesses testified and were questioned by council members. After the hearing, the City Council removed ¹ Jett from office pursuant to its authority under chapter 5, § 4.1 of the Tucson City Charter.

On August 18, 1993, Jett filed a complaint in the Pima County Superior Court naming the City, the Mayor, and the individual members of the City Council as defendants. She alleged, inter alia, that the City Council did not have the authority to remove her from office. She sought reinstatement, damages, and attorney's fees and costs. In addition, she asked the court to issue a temporary restraining order preventing the City from hiring a replacement to fill her position pending a final ruling in this case. The court denied the request for a restraining order.

The parties then filed cross-motions for summary judgment. On November 12, after oral argument, the trial court granted Jett's motion and denied the City's cross-motion. The court concluded that the 1988 amendment to article 6.1 of the Arizona Constitution, which brought city magistrates within the jurisdiction of the Commission on Judicial Conduct, divested the City Council of its authority to remove Jett for judicial misconduct. On January 3, 1994, the court entered judgment ordering Jett's reinstatement and awarding her back pay and attorney's fees. The City filed a timely notice of appeal. The court of appeals filed a petition to transfer the case to this court pursuant to rule 19(a)(3), Arizona Rules of Civil Appellate Procedure. We granted the court of appeals' petition on February 4, 1994, and for the reasons discussed below, we reverse the trial court's judgment.

DISCUSSION

Article 6.1 of the Arizona Constitution is the provision that vests the Commission on Judicial Conduct with authority to initiate disciplinary proceedings against certain members of the judiciary. Specifically, § 4 of article 6.1 provides:

On recommendation of the commission on judicial conduct, the supreme court ... may censure, suspend without pay or remove a judge for action by him that constitutes wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance or conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

When the Commission was created in 1970, its jurisdiction was limited to "justices of the peace, judges of the superior court, judges of the Court of Appeals and justices of the Supreme Court." See Ariz. Const. art. 6.1, § 5; Laws 1970, H.C.R. No. 23, § 1. At that time, no constitutional or statutory provision specifically addressed the removal of city magistrates from office. Absent such a provision, some cities adopted their own removal provisions, which they generally incorporated into their city charters.

In 1988, however, the Commission was granted authority to initiate disciplinary proceedings against city magistrates. More precisely, § 5 of article 6.1 was amended to bring within the Commission's jurisdiction "judges in courts inferior to the superior court," which includes city magistrates. See Laws 1988, H.C.R. No. 2009; see also Bruce v. State, 126 Ariz. 271, 272, 614 P.2d 813, 814 (1980).

The primary issue presented by this case is what effect, if any, the 1988 amendment had on the City's authority to remove its magistrates from office. Jett contends that the amendment divested the City Council of its authority, and therefore, its actions in removing her from office: (1) were "inconsistent with" both the Arizona Constitution and the laws of the state; and (2) violated the separation of powers doctrine. We address each contention below.

I. Article 6.1

The City of Tucson is a charter or "home rule" city organized pursuant to article 13, § 2 of the Arizona Constitution. ² As such, it may exercise all powers granted by its charter, provided that such exercise is not inconsistent with either the constitution or general laws of the state. See Strode v. Sullivan, 72 Ariz. 360, 362-64, 236 P.2d 48 50-51 (1951), discussing Ariz. Const. art. 13, § 2. In this case, the City Council removed Jett from office under the authority provided by the City's charter, which reads in relevant part:

City magistrates shall be appointed by the mayor and council and shall hold office for the terms hereinafter provided, unless sooner removed by two-thirds of the council voting affirmatively therefor....

Tucson City Charter, ch. 5, § 4.1 (1978) (emphasis added). Our first inquiry, therefore, is whether this charter provision is "inconsistent with" article 6.1 of the Arizona Constitution.

Jett argues that article 6.1 granted the Commission exclusive authority to initiate disciplinary proceedings against city magistrates. As such, she maintains that even if the City Council had authority before 1988 to remove city magistrates from office, once § 5 of article 6.1 was amended to bring magistrates within the jurisdiction of the Commission, the City Council was divested of any such authority. For a number of reasons, we disagree.

When interpreting the scope and meaning of a constitutional provision, we are guided by fundamental principles of constitutional construction. Our primary purpose is to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it. McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 289, 645 P.2d 801, 804 (1982), citing Apache County v. Southwest Lumber Mills, Inc., 92 Ariz. 323, 327, 376 P.2d 854, 856 (1962). To this end, we first examine the plain language of the provision. Perini Land and Dev. Co. v. Pima County, 170 Ariz. 380, 383, 825 P.2d 1, 4 (1992). If the language is clear and unambiguous, we generally must follow the text of the provision as written. No extrinsic matter may be shown to support a construction that would vary its apparent meaning. McElhaney Cattle Co., 132 Ariz. at 290, 645 P.2d at 805. In short, judicial construction is neither necessary nor proper. Pinetop-Lakeside Sanitary Dist. v. Ferguson, 129 Ariz. 300, 302, 630 P.2d 1032, 1034 (1981).

With these principles in mind, we turn to the language of article 6.1 itself. Initially, we note that the provision does not expressly confer upon the Commission exclusive authority to initiate proceedings for the removal of magistrates from office. Nor does it expressly prohibit cities from authorizing in their city charters a parallel process of removal. It merely authorizes the Commission to investigate a magistrate's misconduct and recommend an appropriate sanction, after which this court "may remove" the magistrate from office. Ariz. Const. art. 6, §§ 4 and 5; see also Bruce, 126 Ariz. at 272, 614 P.2d at 814 (recognizing that city magistrates are considered "judges in courts inferior to the superior court"). Standing alone, the permissive language of article 6.1 by no means represents an exclusive grant of authority. Instead, contrary to Jett's suggestion, such permissive language seems to allow for parallel processes of removal.

The fact that article 6.1 is not clear on its face, however, permits us to look beyond the bare words of the provision to discern its intended effect. McElhaney Cattle Co., 132 Ariz. at 290, 645 P.2d at 805, citing American Bus Lines, Inc. v. Corporation Comm'n, 129 Ariz. 595, 633 P.2d 404 (1981), and Ward v. Stevens, 86 Ariz. 222, 344 P.2d 491 (1959). In particular, we may consider the history behind the provision, the purpose sought to be accomplished, and the evil sought to be remedied. See McElhaney Cattle Co., 132 Ariz. at 290, 645 P.2d at 805; Ruth v. Industrial Comm'n, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971).

The amendment to § 5 of article 6.1, which was aimed at bringing magistrates within the jurisdiction of the...