Lewis v. Arizona Dept. of Economic Sec.

• Decision Date: 03 September 1996
• Docket Number: No. 1,CA-CV,1
• Citation: 186 Ariz. 610,925 P.2d 751
• Parties: Captain LEWIS, a married man, Plaintiff-Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Charles Cowan, Director, Defendants-Appellees. 94-0543.
• Court: Arizona Court of Appeals

Page 751

925 P.2d 751

186 Ariz. 610

Captain LEWIS, a married man, Plaintiff-Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Charles Cowan, Director, Defendants-Appellees.

No. 1 CA-CV 94-0543.

Court of Appeals of Arizona Division 1, Department B.

Sept. 3, 1996.

Reconsideration Denied Oct. 28, 1996.

[186 Ariz. 611] Howard R. Wine (formerly of Snell & Wilmer), Tucson, for Plaintiff-Appellant.

Grant Woods, Attorney General by Robert S. Segelbaum, Daniel W. Pozefsky, Assistant Attorneys General, Phoenix, for Defendants-Appellees.

OPINION

GRANT, Judge.

Appellant Captain Lewis ("Lewis"), a blind citizen of Arizona, ¹ filed this special action in the superior court, challenging the statutory authority of Arizona's Department of Economic Security ("DES") to restructure its delivery system for providing services for blind and visually impaired individuals. Lewis contended that the restructuring violated a non-discretionary duty imposed on DES pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 46-134(A)(4). The superior court granted summary judgment for DES, finding that A.R.S. section 41-1953(A) authorizes the director of DES to restructure the delivery of services required to be furnished pursuant to A.R.S. section 46-134(A)(4). Lewis appeals from this judgment and from the earlier denial of his request to conduct discovery.

FACTS AND PROCEDURAL HISTORY

In 1937, the Arizona Legislature first enacted legislation, the predecessor to A.R.S. section 46-134(A)(4), authorizing services to be provided to the blind. This legislation provided in relevant part that the State Department of Social Security and Welfare should develop any agencies it deemed necessary to further the goal of providing social services to the blind, including specific services enumerated in the statute. The statute also directed the department to cooperate with similar agencies already established to provide these services. See 1937 Ariz. Sess. Laws, Ch. 69, § 7. In 1948, the legislature created the Department of Public Welfare and substituted it as the department responsible for overseeing the furnishing of services for the blind. See 1948 Ariz. Sess. Laws, 7th S.S., Ch. 20, § 1. By 1961, the statute requiring the Department of Public Welfare to develop agencies for providing services to the blind had been renumbered as A.R.S. section 46-134(A)(4). See 1961 Ariz. Sess. Laws, Ch. 109, § 1. This statutory provision was not otherwise changed in any material respect between 1937 and 1972.

In 1972, the legislature passed a massive piece of legislation introduced as Senate Bill 1068. In this act, the legislature amended, added, and repealed numerous statutes found in several of the titles of the Arizona Revised Statutes. See 1972 Ariz. Sess. Laws, Ch. 142. In its statement of purpose for the act, the legislature stated, in relevant part, that "[t]he purpose of this act is to provide an integration of direct services to the people of this state in a pattern that would reduce duplication of administrative efforts, services and expenditures." See 1972 Ariz. Sess. Laws, Ch. 142, § 1.

Most significantly, by this act, the legislature established DES, pursuant to A.R.S. section 41-1952(A). See 1972 Ariz. Sess. Laws, Ch. 142, § 2. A.R.S. section 41-1953(D) specified that DES would succeed to the authority, powers, duties and responsibilities of a specific group of agencies and departments previously created by statute, including the Department of Public Welfare; subsection (E) of that statute provided that "[i]n the Arizona Revised Statutes, references to the agencies and departments listed in subsection D shall be deemed to be references to the Department of Economic Security or its appropriate divisions, offices or organizational units." 1972 Ariz. Sess. Laws, Ch. 142, § 2. A.R.S. section 41-1954 provided that in addition to the powers and duties of the agencies listed in A.R.S. section 41-1953(D), DES would administer a number of specified services including:

Rehabilitation services which shall include vocational rehabilitation services and sections for the blind and visually impaired, communication disorders, correctional rehabilitation and other related functions in furtherance of programs under the vocational rehabilitation act, as amended, the Randolph-Sheppard Act, as amended, and other related federal acts and titles. ²

1972 Ariz. Sess. Laws, Ch. 142, § 2. Also of significance, the legislature provided in A.R.S. section 41-1953(A) as follows:

The director may establish, abolish or reorganize the positions or organizational units within the department to carry out the functions provided by section 41-1954, subject to legislative appropriation, if in his judgment such modification of organization would make the operation of the department more efficient, effective or economical. The director or his deputy shall enforce cooperation among the divisions in the provisions and integration of all functions on the district and local level.

1992 Ariz. Sess. Laws, Ch. 142, § 2.

One of the multitude of other statutes amended by the passing of this act was A.R.S. section 46-134. The portion of this statute authorizing the provision of services to the blind was amended to provide as follows:

[DES] shall:

* * * * * *

3. Develop a section of rehabilitation for the visually impaired which shall include a sight conservation section, a vocational rehabilitation section in accordance with the Federal Vocational Rehabilitation Act, a vending stand section in accordance with the Federal Randolph-Sheppard Act, an adjustment service section which shall include rehabilitation teaching and talking book machine services and other social services deemed necessary, and shall cooperate with similar agencies already established. The administrative officer and staff of the section for the blind and visually impaired shall be employed only in the work of that section.

1992 Ariz. Sess. Laws, Ch. 142, § 62. Under the clear language of this amendment to A.R.S. section 46-134(A)(3), DES was to develop a specific organizational unit to provide the services required by this statute to the blind and visually impaired. The administrative officer and staff of this organizational unit were to have no duties other than those of providing these services to the blind and visually impaired. ³

Pursuant to this statute, in 1973, DES established an organizational unit to provide services for the blind and visually impaired, administered and staffed by personnel employed solely to provide these services. The services for the blind and visually impaired ("SBVI") operated within a larger organizational unit known as the Rehabilitation Services Administration ("RSA"), which in turn was part of the Division of Employment and Rehabilitation Services of DES.

Beginning in the late 1980's, vocational rehabilitation and independent living rehabilitation services for blind and visually impaired individuals in Arizona came under increasing criticism by consumer groups and other interested parties. In the fall of 1991, in response to inquiries by both the executive and the legislative branches of state government, the director of DES requested that the RSA conduct a review of the SBVI to determine what, if anything, should be done to improve the situation.

Based on the findings of the RSA management review team assigned to the task, whose findings were then reviewed and verified by the RSA's Division of Management Review, the director of DES authorized the restructuring of the SBVI to be effective August of 1992, with the aim of decentralizing the delivery of services. The director believed that this step would improve accessibility, responsiveness and accountability to blind and visually impaired individuals throughout the state, as well as reduce administrative costs. The SBVI was modified to function merely in a support services role. SBVI's only employee would be the section manager whose responsibilities would include the coordinating, monitoring, and evaluating of services; the section manager would report to the RSA Deputy Administrator. The actual responsibility for managing the furnishing of the various services required by statute was transferred to the RSA Deputy Administrator and other specified management personnel within the RSA.

The staff providing the services was no longer part of the SBVI, but was considered personnel of the RSA. As an immediate result of the restructuring, a slightly larger number of personnel was employed exclusively in the work of providing services to the blind and visually impaired. Additionally, however, RSA staff which was employed to provide services to individuals with other types of disabilities received special training, and the staff now was providing services to blind and visually impaired individuals in remote areas of the state which were previously unserved. Lewis claims that on August 1, 1992, DES dismantled the "section of rehabilitation for the visually impaired."

The 1992 restructuring created a larger staff providing services for the blind and visually impaired; however, the services are no longer being provided by a separate organizational unit administered and staffed solely by personnel employed only to do that particular work. For that reason, Lewis brought suit complaining that DES was violating a non-discretionary duty imposed on it by the Blind Services Statute, A.R.S. section 46-134(A)(4). In denying the relief requested, the trial court concluded as follows:

The Court finds that the Director of DES has the authority to restructure the organization pursuant to A.R.S. § 41-1953(A). There is no showing that legislative intent and the clear meaning of A.R.S. § 41-134 have been violated in terms of actual delivery of services, or compliance with federal regulations, as set forth in the state statute.

The true test of compliance with the statutory mandates in this instance is to be measured by the actual...