State v. Boykin
| Decision Date | 18 April 1973 |
| Docket Number | 11092,Nos. 11090--P,s. 11090--P |
| Citation | 109 Ariz. 289,508 P.2d 1151 |
| Parties | STATE of Arizona and James J. Hegarty, in his official capacity as Superintendent of the Department of Public Safety, Petitioners, v. Richard J. BOYKIN et al., Respondents. Richard J. BOYKIN et al., Petitioners, v. The STATE of Arizona and James J. Hegarty, in his official capacity as Superintendent of the Department of Public Safety, Respondents. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, John S. O'Dowd, Asst. Atty. Gen., Tucson Fred W. Stork, Asst. Atty. Gen., Phoenix, for the State and James J. Hegarty.
Miller, Pitt & Feldman, P.C., James C. Carruth, Stanley G. Feldman, David J. Leonard, Tucson, Soble, Cole & Meehan, P.C., Tucson, for Richard J. Boykin, Garrett C. Robb, Terry Lee Kennedy, Arthur Gene Anderson, individually, and on behalf of all other persons similarly situated, real parties in interest.
Dennis DeConcini, Pima County Atty., Gerard R. O'Meara, Deputy County Atty., Tucson, for amicus curiae, Pima County Board of Supervisors.
Petitioners, employees of the Department of Public Safety as law enforcement officers, brought suit against the acting director of the Department, James J. Hegarty and the State of Arizona. The Pima County Superior Court denied a motion by the State to dismiss the complaint for failure to state a claim for relief. The State, in a special action proceeding, obtained its objective in the Court of Appeals, which directed the lower court to enter an order dismissing the complaint. Arizona v. Boykin, 18 Ariz.App. 365, 502 P.2d 166 (1972). From this decision, the petitioners sought relief in the nature of a special action as well as a direct appeal. We granted the petition for special action in order to have all issues presented. We therefore consider both the special action and petition for review together.
In their complaint in the Superior Court, the petitioners requested payment for overtime worked in the preceding year. They alleged that they were required to work in excess of eight hours per day without receiving compensation for the 'overtime' work performed. It was also contended that employees of the Department of Public Safety cannot refuse to perform services at the end of eight hours since the inherent nature of the services requires work beyond an eight hour day and respondents require performance of duties which commence after the end of the eight hour day. Furthermore, it was stated in the complaint that if the petitioners failed or refused to perform these services or if they stopped at the end of eight hours, they would be subject to dismissal or other disciplinary action. The complaint included the allegation that the employees of the Department of Public Safety submitted verified claims for overtime to Hegarty and all were either rejected or refused. The petitioners contend that they are still required to work 'overtime' and would like to be compensated therefor.
The first issue presented is whether a petition for special action is the appropriate mode of appeal. The respondents contend that special action does not lie. We agree with respondents under the special circumstances of this case.
It is true that the alternative methods of petition for review and petition for special action are available to the petitioners, 17 A.R.S. Rules of Procedure for Special Actions (1972); Gamet v. Glenn, 104 Ariz. 489, 455 P.2d 967 (1969). For special action to be appropriate, however, it must also comply with Rule 1. That rule provides in part:
'(a) * * * Except as authorized by statute, the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal; * * *.'
In the instant case, petitioners have failed to show why a petition for review pursuant to 17 A.R.S. Rules of the Supreme Court 47(b) is not a 'plain, speedy and adequate remedy' justifying extraordinary relief under a special action. The petitioners waited a year to bring this action and when their complaint was filed in Superior Court extraordinary relief was not then requested. The numerous affidavits showing apparent confusion on the state of the law do not warrant extraordinary relief. Moreover, petitioners still have not asked for relief which could not be obtained as a result of a vacation of the decision of the Court of Appeals. We, therefore, conclude that special action is not the appropriate means of appeal in this case, and it is therefore dismissed.
The issue raised by the employees of the Department of Public Safety in their petition for review of the Court of Appeals' decision is whether they are entitled to overtime compensation. We hold this is properly a class action. 16 A.R.S. Rules of Civil Procedure Rule 23(a).
Both the petitioners and respondents rely on Article 18 § 1 of the Arizona Constitution which provides that:
Petitioners contend that 'eight hours and no more' means that eight hours is a lawful or normal day's work; any time spent on work over eight hours is 'overtime' and must be compensated accordingly. They do not contend, however, that this provision is self-executing. See City of Phoenix v. Yates, 69 Ariz. 68, 208 P.2d 1147 (1949). Neither do they contend that they come within the statutory implementation of Article 18, § 1 found in A.R.S. § 23--391, subsec. A (1956) which pertains only to manual and mechanical laborers:
Nevertheless, the petitioners do contend that Article 18, § 1 confers the 'right' to an eight hour day and that the lack of implementing legislation only fails to provide a remedy. We do not agree.
The language of Article 18, § 1, Supra, indicates that there is No right to an eight hour day. It provides: 'The Legislature shall enact such laws as may be necessary to put this provision into effect, * * *.' From this wording it is apparent that without legislative enactment the constitutional provision was not 'put into effect' and hence cannot confer any right.
The second clause of that sentence further supports this view. It says '* * * and (the Legislature) shall prescribe proper penalties for any violation of said laws.' This specifically indicates that the remedy must also be provided by the Legislature. If a right had already been given to governmental employees by the Constitution, only this latter clause would have been needed to instruct the Legislature to supply a remedy. However, the first clause also directing the Legislature, cannot be overlooked. In order to give effect to the whole sentence, the first clause could only mean that the Legislature must act to provide the right as well as the remedy.
So far, the Legislature has only complied with Article 18, § 1 regarding manual and mechanical laborers. See A.R.S. § 23--391, subsec. A Supra. As a result, we hold that Article 18, § 1 does not confer a 'right' to an eight hour day without implementing legislation.
Nonetheless, the petitioners suggest that the foregoing constitutional provision is implemented by either A.R.S. § 28--235 or A.R.S. § 41--1741. However, A.R.S. §§ 28--235 and 41--1741, do not support the petitioners' contention.
In discussing the duties of the Law Enforcement Merit System Council, A.R.S. § 28--235, subsec. C provides in part:
1
The petitioners allege that the Law Enforcement Merit System Council has adopted rules providing for payment of non-scheduled overtime compensation. Nevertheless, the rules fail to provide the requisite authority for payment of overtime compensation since the statute itself quite clearly relegates to the Legislature the final decision regarding the salary plan for employees subject to merit system council jurisdiction. There is no allegation in the complaint or the petition that the Legislature has ever adopted a salary plan authorizing payment to employees of the Department of Public Safety of any overtime compensation nor do we find any. As a result, the authority for overtime compensation does not come from either A.R.S. § 28--235 or the rules adopted thereunder by the Law Enforcement Merit System Council.
The provisions of A.R.S. § 41--1741 enumerate the duties of the Director of the Department of Public Safety regarding the compensation of employees. It provides in part:
This statute, read with A.R.S. § 28--235, Supra, places the Department of Public Safety employees within the jurisdiction of the Law Enforcement Merit System Council regarding salary...
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