Stant v. City of Maricopa Emp. Merit Bd.

• Decision Date: 25 February 2014
• Docket Number: No. 2 CA–CV 2013–0089.,2 CA–CV 2013–0089.
• Citation: 319 P.3d 1002,681 Ariz. Adv. Rep. 12,234 Ariz. 196
• Parties: Carlton Aki STANT, Plaintiff/Appellant, v. The CITY OF MARICOPA EMPLOYEE MERIT BOARD, An Administrative Body; Kevin P. Evans, in his Capacity as City Manager for the City of Maricopa, Arizona; Ann Joy Napolitano, in her Official Capacity as a Member of the City of Maricopa Employee Merit Board; Micki Schroeder, in her Official Capacity as a Member of the City of Maricopa Employee Merit Board, Defendants/Appellees.
• Court: Arizona Court of Appeals

234 Ariz. 196

319 P.3d 1002

681 Ariz. Adv. Rep. 12

Carlton Aki STANT, Plaintiff/Appellant,

v.The CITY OF MARICOPA EMPLOYEE MERIT BOARD, An Administrative Body; Kevin P. Evans, in his Capacity as City Manager for the City of Maricopa, Arizona; Ann Joy Napolitano, in her Official Capacity as a Member of the City of Maricopa Employee Merit Board; Micki Schroeder, in her Official Capacity as a Member of the City of Maricopa Employee Merit Board, Defendants/Appellees.

No. 2 CA–CV 2013–0089.

Court of Appeals of Arizona,

Division 2.

Feb. 25, 2014.

Aiken Schenk Hawkins & Ricciardi P.C., By Alfred W. Ricciardi, James M. Cool, and Erin R. Ford, Phoenix, Counsel for Plaintiff/Appellant.

Jackson Lewis LLP, By Justin S. Pierce and Victoria Torrilhon, Phoenix, Counsel for Defendants/Appellees.

OPINION

ECKERSTROM, Judge.

¶ 1 Appellant Carlton Stant challenges the superior court's judgment affirming the termination of his employment by the Maricopa Police Department (“the department”) and the decision upholding that action by appellees, the City of Maricopa Employee Merit Board (“the board”) and the city manager of Maricopa (“the city”). We affirm for the reasons that follow.

Factual and Procedural Background ¹

¶ 2 In May 2010, the department launched an internal affairs investigation into whether a certain police officer had circumvented the chain of command by sending an e-mail to the city council. Stant was a sergeant at the time, and he was also the direct supervisor of the officer being investigated. When a detective interviewed Stant about his knowledge of the officer's actions, Stant refused to answer questions regarding the investigation.

¶ 3 Pursuant to the department's Operations Order 3.19(3) (B)(2), an officer who is a witness to misconduct “must cooperate with the administrative investigation.” Stant later testified he was very familiar with this order. The chief of police listened to a recording of Stant's interview with the detective and determined that Stant's refusal to cooperate set a “ terrible example” and represented a serious violation of department policy, especially in light of his rank and his role as a supervisor. The chief noted that within the prior year Stant had committed other infractions that had resulted in a written reprimand, a ninety-day probationary period, a one-day suspension without pay, and a forty-hour suspension without pay, yet he had failed to benefit from those measures. The chief therefore concluded termination was the appropriate disciplinary measure, and he ended Stant's employment on June 18, 2010.

¶ 4 Stant appealed his termination to the board. Pursuant to Maricopa Personnel Policy (“MPP”) § 2.3.5(a), the board is charged with determining, by a preponderance of the evidence, “whether the action appealed was made in good faith for cause.” ² The board makes advisory findings for the city manager, who holds final decision-making authority. MPP § 2.3.5(b)-(d). After conducting an evidentiary hearing, the board concluded that Stant had violated department policy, the disciplinary measure was appropriate, and the termination was done in good faith for cause. The city upheld the termination, and Stant sought further review in the superior court pursuant to A.R.S. § 38–1004. The court determined the record supported the action of the department as well as the findings and decisions of the board and city. Stant filed a timely notice of appeal to this court following the entry of judgment.

Jurisdiction

¶ 5 Our independent duty to confirm our jurisdiction requires that we discuss the basis for the present appeal. See Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 2, 270 P.3d 879, 881 (App.2012). In civil matters, “a right to appeal exists only when that right is specifically given by statute.” Pima County v. State Dep't of Rev., 114 Ariz. 275, 277, 560 P.2d 793, 795 (1977); accord S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶ 16, 977 P.2d 769, 774 (1999). If no statute provides such a right, an appellate court lacks jurisdiction to consider the issues raised on appeal. Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981).

¶ 6 Here, as noted above, Stant challenged the decision of the board and city by seeking a writ of certiorari in the superior court pursuant to § 38–1004. This proceeding is designated a “statutory special action” by Rule 1(b), Ariz. R.P. Spec. Actions. See Rash v. Town of Mammoth, 233 Ariz. 577, ¶ 2, 315 P.3d 1234, 1235 (App.2013).

¶ 7 Contrary to Stant's assertion, his appeal to this court is not authorized by A.R.S. § 12–2101, which is sometimes referred to as the “general statute governing appeals.” S. Cal. Edison Co., 194 Ariz. 47, ¶ 16, 977 P.2d at 774. Because an action under § 38–1004 provides the superior court only a limited review of a prior determination, see Woerth v. City of Flagstaff, 167 Ariz. 412, 417, 808 P.2d 297, 302 (App.1990); Pima County v. Pima Cnty. Law Enforcement Merit Sys. Council (Klein), 128 Ariz. 62, 64, 623 P.2d 851, 853 (App.1980); Justice v. City of Casa Grande, 116 Ariz. 66, 67, 567 P.2d 1195, 1196 (App.1977), the proceeding does not “originat[e]” or “commence [ ]” in the superior court within the meaning of A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1), respectively.³ But see Rash, 233 Ariz. 577, ¶ 3, 315 P.3d at 1235 (listing § 12–2101(A)(1) among alternative grounds for appellate jurisdiction); Crouch v. Justice of Peace Court of Sixth Precinct, 7 Ariz.App. 460, 463–64, 440 P.2d 1000, 1003–04 (1968) (suggesting certiorari action originates or commences in superior court). As our supreme court has explained when discussing its own jurisdiction,

If [a] proceeding ... ‘originates' before any board, officer, or tribunal other than a court, and has been before the superior court for the purpose of a review of such prior determination and not for the purpose of an original inquiry into and determination of the rights of the petitioner, an appeal from the decision of the superior court does not lie to this court, unless some special statute gives one.

Smith v. Trott, 36 Ariz. 166, 171, 283 P. 726, 728 (1930).

¶ 8 The specific language in § 12–2101(A)(1) authorizing appeals from actions “commenced in a superior court, or brought into a superior court from any other court” refers to cases brought in the superior court by a process other than appeal. Anderson, 229 Ariz. 52, ¶ 3, 270 P.3d at 881–82;cf. Duncan v. Truman, 74 Ariz. 328, 331, 248 P.2d 879, 881–82 (1952) (noting lack of jurisdiction over de novo appeal in superior court). A proceeding under § 38–1004 is a type of appeal. Although § 38–1004(A) describes a law enforcement officer as having a “determination of the [merit system] council reviewed upon writ of certiorari in the superior court,” § 38–1004(C) alternatively describes an aggrieved officer as “appeal[ing] to court the decision of the merit system or civil service plan appeals board, or of the city or town council.” Section 38–1003(6)(b), A.R.S., likewise characterizes the action as an “appeal ... provided in § 38–1004.” In Him Poy Lim v. Duncan, our supreme court observed that the designation of a “proceeding in the superior court as an appeal ” is conclusive evidence that it is not “commenced” there. 65 Ariz. 370, 372, 181 P.2d 357, 358, 359 (1947).

¶ 9 In short, both the substance and the language of these statutes confirm that the superior court was “functioning in an appellate capacity for jurisdictional purposes.” Anderson, 229 Ariz. 52, ¶ 4, 270 P.3d at 882. Accordingly, in the absence of a statutory right to appeal beyond the superior court, we would not have appellate jurisdiction to consider the matter here. Cf. Sarwark v. Thorneycroft, 123 Ariz. 1, 4, 596 P.2d 1173, 1176 (App.) (holding judicial review of administrative decision limited to superior court by specific statutory procedure), approved,123 Ariz. 23, 597 P.2d 9 (1979).

¶ 10 Contrary to Stant's contention below, the Administrative Review Act (“ARA”), A.R.S. §§ 12–901 through 12–914, is inapposite, because this case concerns the disciplinary decisions of a municipality and its police department. The ARA does not apply to municipal corporations or their agencies. Rash, 233 Ariz. 577, ¶ 11, 315 P.3d at 1238;see Woerth, 167 Ariz. at 416–17 & 416 n. 4, 808 P.2d at 301–02 & 301 n. 4. Stant also incorrectly relies on Maricopa County Sheriff's Office v. Maricopa County Employee Merit System Commission (Juarez), 211 Ariz. 219, 119 P.3d 1022 (2005), as precedent for appellate jurisdiction here. That case concerned an appeal by an officer employed as a civil servant of a county, for whom a right of appeal is specifically provided by A.R.S. §§ 11–356(G) and 12–913. See Juarez, 211 Ariz. 219, ¶¶ 1, 8, 119 P.3d at 1023–24.

¶ 11 A right of appeal to this court is nevertheless provided by law. Section 12–2007, A.R.S., allows an appeal from a superior court's judgment in an action under our general certiorari statutes, A.R.S. §§ 12–2001 through 12–2007. In Walker v. Burr, 73 Ariz. 129, 130, 133, 238 P.2d 950, 951, 953 (1951), our supreme court held that the provision now codified as § 12–2007(C)⁴ PERMITS A LAW ENFORCEMENT OFFICER WHO HAS BEEN DISCHARGED TO APPEAL A merit council's decision beyond the superior court. In addition, a right of appeal to this court is recognized or implicitly provided by § 38–1004(B)(2) and (C)(2). These subsections require an award of costs and attorney fees to be suspended if a certain party “appeals the decision of the court.” Id.⁵ In keeping with our precedents, we therefore conclude we have jurisdiction over the present appeal because the proceeding is one “permitted by law to be appealed from the superior court” under § 12–120.21(A)(1). See Rash, 233 Ariz. 577, ¶ 3, 315 P.3d at 1237 (listing § 12–120.21(A) (1) among grounds for jurisdiction).

¶ 12 Because § 38–1004 creates a statutory special action and a right of appeal to this court, our jurisdiction is mandatory rather than...