Mann v. Maricopa County

• Decision Date: 08 July 1969
• Docket Number: No. 9691,9691
• Citation: 456 P.2d 931,104 Ariz. 561
• Parties: Beulah MANN, a widow, and Clarence Burnett, Petitioners, v. The COUNTY OF MARICOPA, Barney Burns, J. Robert Stark and Henry Haws, members of the Board of Supervisors, Charles Miller, County Manager, and C. M. Pifer, Personnel Director of Maricopa County, Respondents.
• Court: Arizona Supreme Court

Page 931

456 P.2d 931

104 Ariz. 561

Beulah MANN, a widow, and Clarence Burnett, Petitioners, v. The COUNTY OF MARICOPA, Barney Burns, J. Robert Stark and Henry Haws, members of the Board of Supervisors, Charles Miller, County Manager, and C. M. Pifer, Personnel Director of Maricopa County, Respondents.

No. 9691.

Supreme Court of Arizona, In Banc.

July 8, 1969.

James E. Flynn, Phoenix, for petitioners.

Moise Berger, Maricopa County Atty., by William Carter, Deputy County Atty., Phoenix, for respondents.

ROBERT O. ROYLSTON, Superior Court Judge.

Petitioners filed in this Court of a Writ of Prohibition, Mandamus, or Certiorari in the alternative. On June 3, 1969, after hearing extensive oral arguments, this Court issued an Alternative Writ of Mandamus, and continued in full force and effect the Stay Order of this Court which prevented the Respondents from terminating the employment of the Petitioners, or removing them from the payroll of Maricopa County.

The pertinent facts are as follows:

Both Petitioners have been employed for many years in the Superior Court of Arizona in Maricopa County. Petitioner Mann is a Bailiff in the Division over which Judge Laurens L. Henderson presides; Petitioner Burnett is an Adult Probation Officer in the Division over which Judge Fred J. Hyder presides. Both Petitioners have passed their seventieth birthdays. Application for continued employment after age seventy was timely filed by each Petitioner with the Respondents. Each application included a certification by each respective judge that the 'employee is specially fitted by reason of long experience to perform the duties of his position.' The applications were made pursuant to A.R.S. 38--759, subsec. I, which provides as follows:

'* * * Any other employee, except an employee of a political subdivision whose compensation is provided wholly or in part from state funds who is declared by law after July 3, 1955 to be a state employee for retirement purposes, who has attained age seventy and who is certified by his appointing authority as specially fitted by reason of long experience to perform the duties of his position shall, if he so desires, upon request of his appointing authority and approval of the governor, if a state employee, or approval of the governing body of the political subdivision if an employee thereof, be continued in service for such period or periods are may be requested by the appointing authority, but that no term of continued employment shall exceed one year and no more than two such terms may be approved. If employment beyond the age of seventy is extended pursuant to this subsection, no further contributions shall be made either by the employer or the employee, nor shall such continuing employee be entitled to any change in the benefits as computed at the age of seventy, except in respect of that portion of the benefit derived from his retirement account with interest accruals.'

Though a series of correspondence and memoranda between the judges, the personnel director, and county manager, including an Opinion from the office of the Attorney General, it was made clear that both applications were rejected by the Board of Supervisors, and that the Petitioners would be removed from the payroll no later than the pay period ending May 24, 1969. Each judge entered an order that the Petitioners be continued in service in their respective positions for a term of one year.

No evidence was presented in this Court indicating any reason for the Board's failing to approve the request for continued employment, other than age alone. As a result, this Petition was filed May 23, 1969.

Respondents contend that this Court does not have original jurisdiction of this matter, and that mandamus is improper. From the balance of this opinion, it will become apparent that the Petitioners have no other adequate remedy; that an important facet of the administration of justice is concerned; and that an abuse of discretion must be corrected and controlled be mandamus; State ex rel. Corbin v. Murry, 102 Ariz. 184, 427 P.2d 135.

Although the specific relief requested is limited to a determination of whether these Petitioners shall be retained on the payroll of Maricopa County for an additional year, the actual issue is much broader and directly affects the operation of the Courts, that is: which department of government has the power of control of personnel directly connected with the operation of the Courts? The 'personnel' involved herein contemplates, bailiffs, probation officers, court reporters, court administrators, secretaries, and others working directly in connection with the administration of justice.

The Constitution of the State of Arizona, A.R.S., provides:

'ARTICLE III, DISTRIBUTION OF POWERS. The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.'

The solution to the problem has been succinctly and eloquently stated:

Courts of general jurisdiction have 'the right to quarters appropriate to the office and personnel adequate to perform the functions thereof. The right to appoint a necessary staff of personnel necessarily carries with it the right to have such appointees paid a salary commensurate with their responsibilities. The right cannot be made amenable to and/or denied by a county council or the legislature itself. Our Courts are the bulwark, the final authority which guarantees to every individual his right to breathe free, to prosper and be secure within the framework of a constitutional government. The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention or denial by anothr branch of that government.' Noble County Council v. State of Indiana ex rel. Fifer (1955), 234 Ind. 172, 125 N.E.2d 709.

This Court has determined the question of control in relation to court reporters, Powers v. Isley (1947), 66 Ariz. 94, 183 P.2d 880. The following determinations were made: 1. A court reporter is not a county officer but "a sworn officer of court.' Garcia v. State, 26 Ariz. 597, 229 P. 103.' 2. The only limitation on the power of the Court to fix the reporter's salary is that it be 'fixed with the approval of the Board of Supervisors,' and the term 'approval' means 'to commend, confirm, ratify, sanction or to consent to some act or thing done by another,' and in disapproving such salary, the board must act in a reasonable manner and not arbitrarily or capriciously. 3. The board of supervisors had no authority to remove a court reporter.

The reasoning of Powers v. Isley, supra, has been adopted in virtually every jurisdiction where similar problems have arisen. The Supreme Court of Nebraska quotes at great length from this case in Bass v. County of Saline (1960), 171 Neb. 538, 106 N.W.2d 860. The case is also cited as authority and followed by the Supreme Court of Colorado in Smith v. Miller (1963), 153 Colo. 35, 384 P.2d 738.

Because the constitutional provision of Colorado is almost identical to that of Arizona, because the statutes involved are extremely similar, and because the Colorado Supreme Court was relying to a great extent on Powers v. Isley, supra, it would seem appropriate to quote at length from Smith v. Miller, supra, 384 P.2d at p. 740:

'Pertinent portions of the statutes which are here subject to interpretation are as follows:

"39--16--1. The judge or judges of the district court of each judicial district shall appoint one or more probation officers who shall not be dismissed without good cause shown. The judge or judges shall fix the salary of such officers commensurate with the time required to discharge the duties hereunder, subject to the approval of the county commissioners of the counties of such judicial district. * * *'

"56--3--8. * * * Such clerk shall receive such compensation * * * as shall be fixed by the judge or judges * * * as shall be approved by the board of county commissioners. * * *'

'(1, 2) Interpretation of the foregoing involves the application of certain well established rules of construction, among which we mention the following: (1) It is the legislative intention, as expressed in the statute, which the court must ascertain and declare; and (2) it must be assumed that the legislature acted with full knowledge of relevant constitutional provisions, inherent judicial powers existing, and of previous legislation and decisional law on the subject; that it did not intend to create a situation amounting to a departure from the general concept of democratic government; and that it sought to recognize and confirm inherent powers rather than to destory them.

'Article III of the Colorado Constitution divides the powers of government into three departments and directs that, '* * * no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, * * *.' In City and County of Denver et...