Lancaster v. Arizona Bd. of Regents

• Decision Date: 05 September 1984
• Docket Number: No. 2,CA-CIV,2
• Citation: 694 P.2d 281,143 Ariz. 451
• Parties: , 22 Ed. Law Rep. 988 James L. LANCASTER; John B. Oakes; Minton R. Groves; William D. Binkley; Thomas L. Anton; Robert B. Anderson; William D. DeLoughary; James Lane; Henry T. Wells; Scott Logan; and Norman H. Daily, individually and as class representatives, Plaintiffs/Appellants, v. ARIZONA BOARD OF REGENTS; State of Arizona; Gary M. Munsinger; Robert A. Peterson; Charles H. Sakwa; Victor E. Roberson; and Don Olson, Defendants/Appellees. 5063.
• Court: Arizona Court of Appeals

Page 281

694 P.2d 281

143 Ariz. 451, 22 Ed. Law Rep. 988

James L. LANCASTER; John B. Oakes; Minton R. Groves; William D. Binkley; Thomas L. Anton; Robert B. Anderson; William D. DeLoughary; James Lane; Henry T. Wells; Scott Logan; and Norman H. Daily, individually and as class representatives, Plaintiffs/Appellants, v. ARIZONA BOARD OF REGENTS; State of Arizona; Gary M. Munsinger; Robert A. Peterson; Charles H. Sakwa; Victor E. Roberson; and Don Olson, Defendants/Appellees.

No. 2 CA-CIV 5063.

Court of Appeals of Arizona,

Division 2.

Sept. 5, 1984.

Review Denied Jan. 22, 1985.

Ilene G. Sipe, Tucson, for plaintiffs/appellants

James L. Richmond, Tucson, and Stephen K. Smith, Phoenix, for defendants/appellees.

OPINION

BIRDSALL, Chief Judge.

The appellants commenced this action in the superior court for themselves and as representatives of a class by filing a four-count complaint. They are all employees of the University of Arizona, one of three Arizona state universities under control of the appellee Arizona Board of Regents. The individual appellees are officers and directors or assistant directors of various departments within the university, i.e., personnel, physical resources and finance.

In count one, the appellants sought a declaratory judgment setting forth their rights to lost wages, overtime wages, retirement benefits and merit increases and indicating their correct job and pay classifications pursuant to legislation enacted by the Second Regular Session of the 32nd Legislature of the State of Arizona. The specific legislation was enacted as Chapter 60 of those Session Laws and was the result of Senate Bill 1222, as amended.

In count two, the appellants sought a writ of mandamus ordering the assistant director of finance to issue a warrant from the State to pay them all sums to which they were entitled as the result of the appellees' failure to comply with the legislation.

Count three alleged breach of their employment contract with the state and at the university by virtue of which they were to be paid all sums to which they were entitled according to law.

Finally, count four alleged negligence on the part of the appellees resulting in a failure to pay them all wages and benefits to which they were entitled.

The appellees responded to the complaint by filing a motion to dismiss, pursuant to Rule 12(b)(6), Rules of Civil Procedure, 16 A.R.S., for failure to state a claim upon which relief could be granted and based upon the trial court's lack of jurisdiction because the appellants had failed to comply with A.R.S. § 12-821. This statute has been held to require filing a claim with the state as a condition precedent to an action in contract. Clark v. State Livestock Sanitary Board, 131 Ariz. 551, 642 P.2d 896 (App.1982); Dassinger v. Oden, 124 Ariz. 551, 606 P.2d 41 (App.1979). Since matters other than the pleadings were presented to and not excluded by the court, the motion to dismiss was treated as one for summary judgment. The trial court granted the motion, thereby dismissing the complaint in its entirety, and this appeal followed.

In its under advisement minute entry granting the motion to dismiss, the trial court reasoned as follows:

The Court reviewed thoroughly the legislative history and enactment of Chapter 60, Senate Bill 1222, which became law on May 27, 1976, recognizing that it offers no express private right of action to anyone, with a view to determining whether, since no enforcement provisions are provided, a private cause of action might be implied.

Since the legislature is a separate branch of government Courts generally take a restrictive approach to implying private rights of action, presuming that had the legislature intended to create such a right it would have so specified.

It appears that the sole objective of S.B. 1222 was to require the Board of Regents to submit to the legislature a report "on a plan to establish a system of equivalent wages and salaries ..." No private remedy is expressed in S.B. 1222. Neither under all of these circumstances is a private right of action implicit.

Because no private right of action exists by S.B. 1222 there is no basis for the Declaratory Judgment relief sought in Count I of the complaint nor for the Mandamus relief sought in Count II.

Count III of the indictment incorporates all allegations of Counts I and II and alleges breach of contract, though without alleging any specific contract of any plaintiff with the defendants, requesting for all plaintiffs "all sums to which they were entitled according to law."

Count IV of the complaint incorporates all allegations of Counts I, II and III and alleges negligence by the defendants in failing to adjust plaintiffs' wages to comply with S.B. 1222.

Plaintiffs have not alleged in their complaint compliance with A.R.S. § 12-821 which is necessary to this Court's having jurisdiction. But even assuming arguendo that compliance with A.R.S. § 12-821 is satisfied by the claim letter submitted to the Board of Regents after the filing of the complaint and denied at their meeting of September 10, 1983, so that this Court had jurisdiction of the contract and negligence claims, it appears that no cause of action is stated in these counts independent of S.B. 1222 and with no private right of action in S.B. 1222 it follows that Counts III and IV also fail to state a cause of action.

In this appeal, it is contended that the trial court erred in dismissing counts one, two and three and that the action should have been certified as a class action pursuant to Rule 23, Arizona Rules of Civil Procedure, 16 A.R.S. No issue is presented concerning the dismissal of the negligence count.

We affirm.

As originally proposed, S.B. 1222 might have constituted a basis for the complaint. It was originally entitled:

AN ACT RELATING TO EDUCATION; PROVIDING FOR EQUIVALENT SALARIES FOR CERTAIN EMPLOYEES AMONG STATE UNIVERSITIES, AND AMENDING SECTION 15-725, ARIZONA REVISED STATUTES.

The original draft provided in pertinent part:

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 15-725, Arizona Revised Statutes, is amended to read:

15-725 General administrative powers of board

A. The board shall

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4. ESTABLISH POSITION CLASSIFICATIONS BY JOB DESCRIPTION FOR ALL EMPLOYEES AND SUPERVISORY PERSONNEL NOT SPECIFIED IN PARAGRAPH 3 OF THIS SUBSECTION AND PRESCRIBE THAT EQUIVALENT SALARIES SHALL BE PAID AT ALL UNIVERSITIES TO EMPLOYEES AND SUPERVISORY PERSONNEL AT EACH LEVEL WITHIN THEIR POSITION.

This version of the bill was radically altered by the House Committee on Education. As a result, the bill as ultimately enacted, instead of "PROVIDING FOR EQUIVALENT SALARIES FOR CERTAIN EMPLOYEES AMONG STATE UNIVERSITIES," was entitled:

AN ACT RELATING TO EDUCATION; * * *; PRESCRIBING CERTAIN POWERS OF BOARD OF REGENTS; PROVIDING THAT BOARD OF REGENTS SHALL MAKE CERTAIN REPORT TO THE LEGISLATURE, AND AMENDING SECTIONS 15-690, 15-691 AND 15-725, ARIZONA REVISED STATUTES. (Emphasis added)

Section 4 in the original version was amended and as finally enacted read:

Sec. 4. Report on the development of a system of wage and salary equivalency

The Board of Regents shall report to the legislature on or before January 15 1977, on a plan to establish a system of equivalent wages and salaries for all employees and supervisory personnel, other than presidents, vice-presidents, deans, professors, instructors, lecturers, fellows, and other officers, at all universities. The plan shall include the establishment of uniform job and position classifications, equivalent salary and wage scales within such classifications, and uniform job and position descriptions. The report shall include a description of existing job and position classifications, wage and salaries established, and existing job and position descriptions on a comparative basis for all universities. The report shall also include a plan for the implementation of the system such that not less than twenty-five per cent of the employees and supervisory personnel at each university shall receive equivalent wages and salaries pursuant to such system by July 1, 1977, and not less than twenty-five per cent of the employees and supervisory personnel shall be covered under the system within each six-month period thereafter and that on or before July 1, 1979, all employees and supervisory personnel will be covered under such system, together with the estimated cost of the adoption of such system.

By letter dated January 7, 1977, the executive coordinator of the Arizona Board of Regents reported to the legislature that it was not practically possible to devise a plan that would meet the literal requirements of Senate Bill 1222. In his "Conclusions," he stated:

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... At this point, having completed the project, we cannot in all good conscience recommend the implementation of SB-1222 specifically as written, for the reasons which are discussed below.

A. Some employees receive pay boosts only because their job happened to match one at another university--others do not.

B. Salaries of employees on jobs that matched at another university are increased above those of employees on jobs of the same quality at the same university.

C. Under their differing pay schedules, the "corrected" situation will certainly become "disproportionate" again.

D. The appropriation required to meet SB-1222 is too large, especially when considering:

1. Evidence shows that U-A employees, who are not discontent and have not asked for more pay, get the bulk of the money; whereas a segment of NAU employees, who were verbal about it, are due very little; and ASU employees are neither upset nor underpaid. (Actually sizable increase adjustments were made by NAU in early 1976.)

2. A significant portion of the money would go to U-A custodians who are paid competitively in their own local labor market and who are not complaining. Such payment would disturb the local...