Legacy v. Citizens

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LEGACY FOUNDATION ACTION FUND, Plaintiff/Appellant,

v.

CITIZENS CLEAN ELECTIONS COMMISSION, Defendant/Appellee.

No. 1 CA-CV 15-0455
FILED 11-15-2016

Appeal from the Superior Court in Maricopa County
No. LC2015-000172-001
The Honorable Crane McClennen, Judge Retired

AFFIRMED

COUNSEL

Bergin Frakes Smalley & Oberholtzer, PLLC, Phoenix
By Brian M. Bergin

Holtzman Vogel Josefiak, PLLC, Warrenton, VA
By Jason Brett Torchinsky
Co-Counsel for Plaintiff/Appellant

Osborn Maledon, PA, Phoenix
By Mary R. O’Grady, Joseph N. Roth, Nathan Arrowsmith
Counsel for Defendant/Appellee

LEGACY v. CITIZENS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Justice Rebecca White Berch1
joined.

C A T T A N I, Judge:

¶1 Legacy Foundation Action Fund (“Legacy”) appeals from the
superior court’s dismissal of its appeal from a decision of the Citizens Clean
Elections Commission (the “Commission”). For reasons that follow, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Legacy is a non-profit organization that seeks to educate the
public on a variety of public policy issues. In March and April of 2014,
Legacy funded a television advertisement criticizing certain policy
positions taken by Mesa Mayor Scott Smith, who was serving as President
of the United States Conference of Mayors at that time. Smith had recently
announced his candidacy for governor and his intention to resign as mayor
of Mesa.

¶3 A complaint was filed with the Commission asserting that the
advertisement violated the Citizens Clean Elections Act. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 16-940 to -961.2 The complaint alleged that the advertisement
contained “express advocacy” against Smith’s gubernatorial campaign, and
that Legacy was thus required to file certain disclosure reports with the
secretary of state. A.R.S. §§ 16-901.01(A), -941(D).

¶4 The Commission found probable cause to believe that Legacy
had violated the Act and assessed a civil penalty, and Legacy requested an
administrative hearing. An administrative law judge (“ALJ”) disagreed

1 The Honorable Rebecca White Berch, Retired Justice of the Arizona
Supreme Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.

2 Absent material revisions after the relevant date, we cite a statute’s
current version.

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LEGACY v. CITIZENS
Decision of the Court

with the Commission’s conclusions and found that the Commission lacked
statutory authority to assess a civil penalty because Legacy’s advertisement
did not expressly advocate for Smith’s defeat. The Commission rejected the
ALJ’s recommendation, however, and entered a final administrative
decision against Legacy on March 27, 2015.

¶5 Eighteen days after the Commission entered its decision,
Legacy filed a notice of appeal seeking judicial review in superior court.
The superior court dismissed the case, on jurisdictional grounds because
Legacy’s appeal was not filed within the 14-day time limit for appeals from
the Commission’s final penalty decisions. See A.R.S. § 16-957(B). Legacy
timely appealed the dismissal, and we have jurisdiction under A.R.S. § 12-
913.

DISCUSSION

¶6 Legacy argues that the superior court erred by dismissing the
appeal. We review de novo dismissal due to lack of jurisdiction. Church of
Isaiah 58 Project of Ariz., Inc. v. La Paz County, 233 Ariz. 460, 462, ¶ 9 (App.
2013).

¶7 Under A.R.S. § 16-957(B), when the Commission “issue[s] an
order assessing a civil penalty,” the party against whom the penalty is
assessed “has fourteen days from the date of issuance of the order . . . to
appeal to the superior court.” Legacy asserts that this provision only
applies to an initial order assessing civil penalties, not to a later
confirmation of that order following an administrative hearing. Legacy
argues that the superior court should have instead applied the 35-day time
to appeal specified in the Judicial Review of Administrative Decisions Act
(“JRADA”). See A.R.S. § 12-904(A).

¶8 This argument is foreclosed by Smith v. Arizona Citizens Clean
Elections Commission, 212 Ariz. 407, 412–13, ¶¶ 22–30 (2006), in which the
Arizona Supreme Court held that § 16-957(B) applies to both an initial order
assessing civil penalties and to a subsequent final administrative decision
confirming the penalty after review by an ALJ. In Smith, the Commission
had similarly entered an order against a party, the party pursued review by
an ALJ, and the Commission confirmed its order in a final administrative
decision. Id. at 412, ¶¶ 19–20. The party appealed to the superior court
outside the 14-day window of § 16-957(B), and the superior court dismissed
the case for lack of jurisdiction. Id. at 412–13, ¶¶ 17, 21, 25. Acknowledging
the 35-day time for appeal under the general provisions of the JRADA, the
Arizona Supreme Court nevertheless affirmed the dismissal because

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JRADA provides that its prescribed procedures (including the 35-day
appeal deadline) for judicial review apply unless “a more definite procedure
is set forth in ‘the act creating or conferring power on an agency or a
separate act.’” Id. at 413, ¶ 29 (quoting A.R.S. § 12-902(A)(1)). Here, the
Citizens Clean Elections Act provides a more definite 14-day deadline for
review of Commission decisions. Id.; see also A.R.S. § 16-957(B). Thus, the
35-day appeal deadline under JRADA does not apply.

¶9 Legacy further argues that the superior court should have
exercised jurisdiction over its appeal because an administrative decision
that goes beyond an agency’s statutory authority is void, and a void
judgment may be challenged at any time. See State ex rel. Dandoy v. City of
Phoenix, 133 Ariz. 334, 336 (App. 1982). But “the right to appeal from any
ruling including an administrative decision exists only by force of statute
and is limited by the terms of the statute.” Guminski v. Ariz. State Veterinary
Med. Exam. Bd., 201 Ariz. 180, 182, ¶ 8 (App. 2001). Thus, although Legacy
could have challenged the agency’s authority on appeal even if it had not
first raised such a claim before the administrative agency, Legacy was not
excused from following the requirements of the statute establishing
appellate deadlines.

¶10 Legacy asserts that an appeal challenging an administrative
body’s subject matter jurisdiction may be heard at any time under A.R.S. §
12-902(B). Section 12-902(B) provides that a party is barred from seeking
judicial review of an administrative decision if the party fails to file a timely
appeal. It also limits any appeal from “an administrative decision [that]
becomes final because of failure to file any document in the nature of an
objection, protest, petition for hearing or application for administrative
review within the time allowed by the law” to questions about the
administrative body’s jurisdiction.

¶11 Although section 12-902(B) does not explicitly allow a party
to file a late appeal questioning jurisdiction, Legacy argues that such an
appeal is authorized under Arkules v. Board of Adjustment, 151 Ariz. 438, 440
(App. 1986), in which this court stated that “[u]nder the provisions of A.R.S.
§ 12-902(B), an appeal from an administrative agency may be heard even
though untimely to question the agency’s personal or subject matter
jurisdiction.” But Arkules involved a special action challenging an
administrative body’s authority brought by a non-party, not a direct appeal.
Id. at 439–40. And the provisions of § 12-902(B) specifically apply to “the
parties to the proceeding before the administrative agency.” Thus, the
Arkules court’s interpretation of § 12-902(B) is at most dictum, because it

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addresses a question not necessarily involved in the case. See Creach v.
Angulo, 186 Ariz. 548, 552 (1996).

¶12 And we disagree that the Arkules dictum should be applied to
parties to a proceeding. The language of § 12-902(B) does not allow an
appeal of an administrative decision to be heard after the allotted time for
appeal has passed. Instead, it restricts a party who has suffered an
administrative default or who has not exhausted administrative remedies
from challenging the merits of the agency’s decision. See also Sw. Paint &
Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 24, ¶ 10 (1999) (“We
read § 12-902(B) as encompassing the traditional doctrine of exhaustion of
administrative remedies . . . .”).

¶13 Legacy also points to Collins v. State, 166 Ariz. 409 (App. 1990),
Gilbert v. Board of Medical Examiners, 155 Ariz. 169 (App. 1987), and Murphy
v. Board of Medical Examiners, 190 Ariz. 441 (App. 1997), as support for its
position that the superior court’s appellate jurisdiction extends to untimely
appeals challenging an administrative agency’s jurisdiction. But these cases
only confirm that § 12-902(B) allows a party to challenge jurisdiction even
without having exhausted administrative remedies, and that a party may,
in certain circumstances, challenge an administrative decision as void by
collateral attack even if an appeal would be untimely. Neither § 12-902(B)
nor the cases cited by Legacy support the proposition that an administrative
body’s jurisdiction can be challenged in an untimely appeal.

¶14 Finally, Legacy argues that its time to comply with § 16-957
should have been extended by five days under the Arizona Rules of
Procedure for Judicial Review of Administrative Decisions (“ARPJRAD”).
ARPJRAD 1 incorporates most of the Arizona Rules of Civil Procedure,
including Rule 6(e), which extends by five calendar days a deadline to act
“within a prescribed period after the service of a notice or other paper” if
service is effected by mail or by electronic means.

¶15 The additional time provided by Rule 6(e) did not apply to
Legacy’s appeal because the 14-day deadline for appeal of the
Commission’s decision runs “from the date of issuance of the [Commission’s
final] order,” not from “service.” See A.R.S. § 16-957(B) (emphasis added);
see also In re $47,611.31 U.S. Currency, 196 Ariz. 1, 4, ¶ 13 (App. 1999) (“If the
time is triggered by the filing or mailing of the paper, Rule 6(e) does not
apply; on the other hand, if the trigger point is service of the paper, Rule 6(e)
does apply.”). Thus, although Rule 6(e) may extend the time to appeal from
certain administrative decisions, it does so only if the agency’s action
becomes effective upon service or notice. See Thielking v. Kirschner, 176 Ariz.

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154, 155, 157 (App. 1993) (holding that Rule 6(e) applied when
administrative decision was served by mail and statute required appeal
within 35 days of service). Although a Commission regulation requires
final Commission decisions to be served on all parties, Ariz. Admin. Code
R2-20-227(B), § 16-957(B) specifies a deadline running from issuance of the
final decision, not from service. Thus, service of the decision did not trigger
Rule 6(e).

¶16 The Commission seeks an award of costs on appeal under
A.R.S. § 12-912. But that statute applies to costs “in an amount deemed
reasonable by the superior court” that were “incurred in preparing the
record of the proceedings before judicial review” (that is, preparation of the
administrative record for the superior court’s review, see Culpepper v. State, 187 Ariz. 431, 438–39 (App. 1996)), not to costs on appeal to this court.
Because the Commission did not seek § 12-912 costs from the superior court,
we deny its request for costs.

CONCLUSION

¶17 For the foregoing reasons, the superior court did not err when
it dismissed Legacy’s appeal for want of subject matter jurisdiction.

AMY M. WOOD • Clerk of the Court
FILED: AA

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