Johnson v. Mofford

• Decision Date: 27 August 1998
• Docket Number: CA-CV,No. 1,1
• Citation: 975 P.2d 130,193 Ariz. 540
• Parties: , 276 Ariz. Adv. Rep. 276 Ronald D. JOHNSON, Plaintiff-Appellant, Cross Appellee, v. Rose MOFFORD and the State of Arizona, Defendants-Appellees, Cross Appellants. 97-0304.
• Court: Arizona Court of Appeals

Page 130

975 P.2d 130

193 Ariz. 540, 276 Ariz. Adv. Rep. 276

Ronald D. JOHNSON, Plaintiff-Appellant, Cross Appellee, v. Rose MOFFORD and the State of Arizona, Defendants-Appellees, Cross Appellants.

No. 1 CA-CV 97-0304.

Court of Appeals of Arizona Division 1, Department C.

Aug. 27, 1998.

Review Denied April 12, 1999.

Gonzalez & Smith, P.C. by Alex D. Gonzalez, Mesa, for Plaintiff-Appellant, Cross Appellee.

Mangum, Wall, Stoops & Warden, P.L.L.C. by Rebecca S. Currey, Flagstaff, for Defendants-Appellees, Cross Appellants.

OPINION

LANKFORD, Judge.

¶1 This appeal raises the infrequent but important issue of the limits on a governor's power to remove state executive appointees from office. Appellant Ronald D. Johnson filed an action for damages against the State of Arizona and its then governor, Rose Mofford, alleging that Governor Mofford had wrongfully removed him from his position as a member of the Board of Pardons and Paroles ("the Board") in violation of various rights due him. After a bench trial, the superior court determined that the governor had cause to remove him. Johnson's appeal to this Court contends that the superior court erred both in determining that the governor had cause to remove him and in denying his request for a jury trial.

¶2 As authorized by Arizona Revised Statutes Annotated ("A.R.S.") section 31-401(A), ¹ Governor Bruce Babbitt appointed Johnson to the Board in 1984, and Governor Evan Mecham reappointed him for a five-year term in 1987. The Board has exclusive power to pass upon and recommend reprieves, commutations, paroles and pardons. A.R.S. § 31-402. As provided in A.R.S. section 31-401(B), the members are to serve "on a full-time basis." They can be removed by the governor only for cause. A.R.S. § 31-401(D). ²

¶3 Rose Mofford became Arizona's governor in 1988. On May 1, 1989, Governor Mofford sent a confidential letter to Johnson asking him to respond in writing as to why he should not be removed from his position as a board member for three reasons detailed in the letter. Johnson's attorney responded immediately by letter, but his response failed to convince the governor that cause did not exist to remove him. By subsequent letter dated May 5, 1989, the governor advised Johnson that he was being removed from the Board effective that day. She also advised him, though, that he could request a post-termination hearing if he wanted one.

¶4 Johnson declined Governor Mofford's offer of a post-termination hearing. He instead filed this action in Maricopa County Superior Court for wrongful discharge and violation of constitutional rights, and requested damages of at least $2,250,000.00.

¶5 When the matter was first considered by the superior court, the state defendants persuaded the superior court that the governor's action in removing Johnson was subject to the Administrative Review Act (the "A.R.A."), A.R.S. sections 12-901 to 12-914, and that Johnson consequently needed to exhaust his administrative remedies. The superior court stayed the proceedings and ordered a post-termination hearing. A hearing officer conducted a hearing and recommended that the governor affirm Johnson's removal from the Board. The governor adopted this recommendation and affirmed Johnson's removal.

¶6 The superior court then lifted the stay and Johnson attempted to proceed with his tort action. The state defendants argued that the A.R.A. limited the relief he could request to a review of the administrative decision. The superior court agreed, treating Johnson's case not as a tort action but as an appeal from an administrative decision. The court limited its review to whether, on the administrative record, the governor's action was arbitrary, illegal, capricious, or an abuse of discretion. The superior court affirmed the governor's decision to remove Johnson.

¶7 Johnson appealed the superior court's decision. In Johnson v. Mofford, 181 Ariz. 301, 890 P.2d 76 (App.1995), we determined that the A.R.A. did not govern. We noted that although A.R.S. section 41-785 provides the sole statutory authority for review of state agency decisions affecting state employees, Johnson was an executive appointee excluded from that act and therefore also excluded from the A.R.A. We held that the superior court had erroneously reviewed the termination decision under the standard of review for agency action. "Instead, the court should have independently determined Johnson's discharge claim and determined whether the Governor had sufficient legal cause under A.R.S. § 31-401(D) to remove Johnson from his position." Id. at 305, 890 P.2d at 80. However, we did not specify the source of the superior court's authority or further explain the nature of its review.

¶8 The superior court on remand conducted a two-day bench trial in which evidence was presented on all three of the matters Governor Mofford had listed as cause for removing Johnson. The superior court concluded that the governor had had cause to remove him, but only as to one reason: a "walk-out" by Johnson and two other board members who were scheduled to hold hearings at the state prison. ³ The superior court found in favor of the state defendants and dismissed the complaint, stating as follows:

[S]ufficient cause existed for Mr. Johnson's termination from employment as a member of the Arizona Board of Pardons and Paroles. He was a member of a hearing panel that was scheduled to conduct hearings at the State Prison in Florence, Arizona during March, 1989. Mr. Johnson and other members of the Board terminated those hearings prematurely and left inmates, inmates' families and friends and the prison staff "in the lurch." Mr. Johnson made no attempt to work out the difficulty with Department of Corrections officials nor to dissuade the less experienced panel chairman from his decision to walk out of the hearings. Having not fulfilled his duties as a board member on that date and walking out of the hearings, he caused delay, cost, and inconvenience. Mr. Johnson's acts of walking out of the hearings, failing to contact Department of Corrections officials to attempt to resolve the problem, and failing to attempt to dissuade the panel chairman of his decision to walk out, represent a failure to fulfill his job duties as a member of the Arizona Board of Pardons and Paroles and represent sufficient cause for his termination from employment.

¶9 In this appeal--the second to this Court--Johnson challenges the sufficiency of the evidence supporting the superior court's finding that cause for termination existed. He also asks that we remand yet again, this time for a trial to a jury, arguing that the superior court erred in refusing his request for jury trial.

¶10 We first consider Johnson's contention that the superior court mistakenly found that the "walk-out" constituted cause for Governor Mofford to remove him from the Board. The applicable statute states that a member of the board may be removed by the governor only for "cause," but does not define "cause." A.R.S. § 31-401. We begin, therefore, by deciding what this term means. As a question of statutory interpretation, this issue is determined de novo by the reviewing court. Hampton v. Glendale Union High School Dist., 172 Ariz. 431, 433, 837 P.2d 1166, 1168 (App.1992).

¶11 Both parties cite to Farish v. Young, 18 Ariz. 298, 158 P. 845 (1916) as providing a definition of "cause" in the context of removal of an appointed official. In that case, the official had been removed pursuant to the Phoenix City Charter. At the time of the removal, the charter provided: "The city manager shall be appointed by the commission, and shall hold his office until removed for cause by the commission." Our supreme court defined the term in that case:

The phrase "for cause" does not mean the arbitrary will of the appointing power, for that might be the outgrowth of mere whim, caprice, prejudice or passion, which would, in reality, be no cause at all. But the phrase "for cause" must mean some cause affecting or concerning the ability or fitness of the incumbent to perform the duty imposed upon him. "The cause must be one affecting the officer's capacity or fitness for the office." 21 Am.Jur. & Eng. Ency. of Law 2d ed 850. Hence it must be inefficiency, incompetency or other kindred disqualification....

Id. at 302, 158 P. at 847 (quoting Board v. Williams, 96 Md. 232, 53 A. 923 (Md.1903)).

¶12 This definition of "cause" is equally appropriate here. The legislature has limited the governor's power of removal to instances in which there is cause to do so. In accord with Farish, "cause" implies some inability, incapacity or unfitness.

¶13 Our review also requires that we consider how much deference be given to the governor's decision. Although our prior opinion stated that the superior court should "independently determine[ ]" the discharge claim, this reference was to review independent of the A.R.A.: Any suggestion that the courts independently decide whether the official should be discharged is incorrect. In Farish, our supreme court indicated that the courts must defer to some extent to the decision to terminate: "Where the word 'cause' is not defined by law, it is left in the first instance to the [person with the removal power] to determine what is sufficient cause to justify the removal...." Farish, 18 Ariz. at 303, 158 P. at 847. The courts merely exercise their power of review to determine that the power has been "honestly, fairly and reasonably exercised and not through caprice or prejudice." Id. Judicial review of the action is "not for the purpose of weighing [the evidence] ... but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunal...." Id. at 307, 158 P. at 849 (citation omitted).

¶14 On remand, the superior court decided anew whether the evidence warranted Johnson's dismissal. Judicial review, however, must be more restrained. It is the governor's power to remove...