Mills v. Abotr

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GREG MILLS, et al., Plaintiffs/Appellants,

v.

ARIZONA BOARD OF TECHNICAL REGISTRATION, et al.,
Defendants/Appellees.

No. 1 CA-CV 20-0510
FILED 8-12-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-013509
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Institute for Justice, Tempe
By Paul V. Avelar
Co-Counsel for Plaintiffs/Appellants

Institute for Justice, Arlington, Virginia
By Adam Griffin
Co-Counsel for Plaintiffs/Appellants

Lewis Roca Rothgerber Christie LLP, Phoenix
By Gregory Y. Harris, John C. Gray, Daniel P. Thiel
Counsel for Defendants/Appellees
 MILLS, et al. v. ABOTR, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Chief Judge Kent E. Cattani and Judge Brian Y. Furuya joined.

T H U M M A, Judge:

¶1 Plaintiffs Greg Mills and Southwest Engineering Concepts,
LLC (SEC) appeal from the dismissal of their claims for failure to exhaust
administrative remedies and for lack of standing and ripeness. Because
plaintiffs have shown no error, the dismissal is affirmed.

FACTS AND PROCEDURAL HISTORY1

¶2 Mills has worked as an engineer for many years. For more
than two decades, Mills was a manufacturing company employee, meaning
he was not required to register as a “professional engineer” under Arizona
law. See Ariz. Rev. Stat. (A.R.S.) § 32-101(B)(11)(2021).2 In 2008, Mills started
his own consulting firm, SEC, where he is the “Principal Engineer.” That
2008 change required Mills and SEC to comply with Arizona law governing
“engineering practice.” Id.

¶3 Since at least 1935, the Arizona Board of Technical
Registration has promulgated and enforced “standards of qualification” for
engineers. A.R.S. §§ 32-101 to -113. The Board is authorized to investigate
and act on alleged violations of those standards, including directing an
administrative law judge to do so. See A.R.S. § 32-106(A). That
administrative process includes: (1) considering whether a complaint
presents reasonable cause of a violation over which the Board has
jurisdiction; (2) assigning a staff member to investigate; (3) providing the
respondent notice and an opportunity to respond and conducting

1 This court accepts the well-pleaded facts alleged in the complaint as true.
Collins v. State, 166 Ariz. 409, 411 (App. 1990). Plaintiffs ask this court to take
judicial notice of minutes from a July 28, 2020 Board meeting. Noting the
Board’s opposition, the court grants the request for judicial notice. See Ariz.
R. Evid. 201.

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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interviews; (4) a technical assessment of the complaint and consideration of
evidence by volunteer members of the Board’s Enforcement Advisory
Committee (EAC); (5) recommendations by the EAC to the Board; (6) if
disciplinary action is indicated, the respondent is afforded the opportunity
to resolve the matter informally; (7) if those informal efforts do not result in
resolution, the respondent can elect to have a formal hearing; and (8) the
Board then can take final agency action. See Ariz. Admin. Code. (A.A.C.)
R4-30-120.

¶4 If violations are found to warrant disciplinary action, the
respondent can resolve the complaint informally through a “consent
agreement.” A.A.C. R4-30-120(G); A.R.S. § 32-128(G). The respondent also
may have the complaint resolved at a formal hearing. Respondents are
encouraged, but not required, to attend and participate in EAC and Board
proceedings. A.A.C. R4-30-120(B)–(C). After a formal hearing, the Board
can take various disciplinary actions, ranging from a letter of concern to
revocation of certification or registration. See A.R.S. §§ 32-128(A), (B). Final
Board action, taken after these many administrative steps, is subject to
review in superior court pursuant to Arizona’s Administrative Procedure
Act. See A.R.S. § 32-128(J).

¶5 Here, the Board received a complaint from one of plaintiffs’
customers alleging both work-quality issues and that plaintiffs were not
registered with the Board. In early May 2019, the Board notified plaintiffs
of the complaint and indicated that the allegations potentially implicated
statutory requirements. See A.R.S. §§ 32-141, -145(1)-(2). Plaintiffs’ response
was that they “have never done any work in any board regulated
profession.”

¶6 In late June 2019, the Board wrote plaintiffs that a preliminary
investigation was underway and provided the technical assessment results,
including opinions that plaintiffs were violating three cited statutory
requirements. In early August 2019, the Board sent plaintiffs a draft consent
agreement, proposing to resolve the investigation for a $3,000 fine, $375 in
costs and an order for plaintiffs to comply with the law. Plaintiffs did not
agree to the consent agreement.

¶7 The Board timely invited Miller to an October 2019 meeting
to discuss the investigation, noting “attendance was not mandatory.”
Although plaintiffs elected not to attend, at that meeting, the Board voted
to amend the consent agreement to increase the fine to $6,000. The Board
provided plaintiffs the amended consent agreement the next day. Plaintiffs
did not agree to the amended consent agreement.

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¶8 As of December 2019, although the customer complaint
remained pending, no formal Board hearing had been requested, scheduled
or held; no formal Board action had been taken and no appealable final
Board decision had issued. Rather than request formal review of the
customer complaint by the Board, in December 2019, plaintiffs filed this
case in superior court, challenging the constitutionality of various statutes
as applied and requesting declaratory and other relief.

¶9 As relevant here, plaintiffs made four primary arguments: (1)
Arizona statutes “violate [plaintiffs’] rights to truthfully say that [Mills] is
an engineer and qualified to do the engineering he does, which is protected
by the free speech provision, Article II, Section 6, of the Arizona
Constitution;” (2) Arizona’s definition of “engineering practice” is “void for
vagueness, violating both the due process and separation of powers
provisions, Article II, Section 4, Article III, and Article IV, of the Arizona
Constitution;” (3) Arizona’s definition of “engineering practice” cannot be
applied without violating plaintiffs’ economic liberty, due process and
equal privileges or immunities rights, Article II, Sections 4 and 13, and
Article IV, Part 2, Section 19(13), of the Arizona Constitution; and (4) the
administrative process violates due process, separation of powers and
nondelegation guarantees, Article II, Section 4, Article III, and Article VI, of
the Arizona Constitution.

¶10 The Board moved to dismiss for lack of subject matter
jurisdiction given plaintiffs’ failure to exhaust administrative remedies and
for failure to state a claim upon which relief can be granted due to lack of
standing and ripeness. See Ariz. R. Civ. P. 12(b)(1), (6). After full briefing
and oral argument, in May 2020, the superior court granted the motion
“[f]or the reasons set forth in [the Board’s] motion and reply.”

¶11 At a late July 2020 Board meeting the Board unanimously
rescinded its previous vote to send the matter to hearing. The Board also
unanimously voted to attempt to find a mutual resolution. No further
administrative action has been taken or scheduled.

¶12 The superior court entered final judgment in August 2020.
This court has jurisdiction over plaintiffs’ timely appeal pursuant to Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and
-2101(A)(1).

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DISCUSSION

¶13 Plaintiffs argue the superior court erred in dismissing their
claims for failure to exhaust administrative remedies, lack of standing and
ripeness. This court reviews de novo the grant of a motion to dismiss.
Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, 513 ¶ 11 (2021).

I. Failure to Exhaust Administrative Remedies.

¶14 Under the doctrine of exhaustion of administrative remedies

litigants may not seek “judicial relief for a
supposed or threatened injury until the
prescribed administrative remedy has been
exhausted.” The purpose of the doctrine is “to
allow an administrative agency to perform
functions within its special competence-to make
a factual record, to apply its expertise, and to
correct its own errors so as to moot judicial
controversies.” The doctrine promotes both
judicial economy and administrative agency
autonomy by preventing premature judicial
intervention in inchoate administrative
proceedings.

Moulton v. Napolitano, 205 Ariz. 506, 511 ¶ 9 (App. 2003) (citations omitted).
This doctrine “is jurisdictional. [I]f parties have statutory recourse to an
administrative agency that has authority to grant appropriate remedies,
they must scrupulously follow the statutory procedures. If they fail to
utilize all their administrative remedies, the superior court lacks
jurisdiction to consider their claim.” Id. (citations omitted). As a result, the
superior court lacks jurisdiction over a dispute when a statute provides for
an administrative hearing process and specifies the scope and manner of
judicial review for challenges to final agency action. Hamilton v. State, 186
Ariz. 590, 593 (App. 1996) (citing cases). Plaintiffs have the burden of
establishing jurisdiction. Moulton, 205 Ariz. at 511 ¶ 8.

¶15 Only final Board decisions are subject to judicial review. See
A.R.S. § 32-128(J). Here, there was no formal hearing by the Board, let alone
a final Board decision. Moreover, by the time plaintiffs had filed this appeal,
the Board had rescinded its decision to send the matter to a formal hearing.
There is no question that plaintiffs have not exhausted their administrative
remedies.

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¶16 Plaintiffs argue they did not need to exhaust administrative
remedies because they:

(1) do not challenge administrative action, (2)
[exhaustion is futile because plaintiffs] make
only constitutional-rights claims that cannot be
redressed by the Board and are not “inextricably
intertwined” with any requests for government
benefits, (3) their suit presents only private
rights for judicial consideration, which the
Board cannot adjudicate, (4) it would cause
irreparable harm to force [plaintiffs] through
the very administrative process they are
challenging, and (5) this case is a jurisdictional
challenge to the Board’s power to adjudicate
[plaintiffs’] constitutional rights.”

¶17 In making these arguments, the cases on which Plaintiffs rely
either hold against them or are distinguishable. Plaintiffs rely on dicta from
several cases holding administrative exhaustion was required. See Univar
Corp. v. City of Phoenix, 122 Ariz. 220, 223-24 (1979) (affirming dismissal of
arguments made for the first time in superior court, because none of the
“exceptional circumstances” excusing exhaustion of administrative
remedies applied; exhaustion “is firmly entrenched in Arizona, for such
sound reasons as judicial economy and reliance on the expertise of the
administrative body for initial adjudication”); Canyon del Rio Invs., L.L.C. v.
City of Flagstaff, 227 Ariz. 336, 338 ¶ 1 (App. 2011) (holding limitation
periods for damage and declaratory judgment claims do not begin to run
“until administrative remedies have been exhausted” and “an as-applied
challenge to a zoning decision must be predicated on a final decision by the
relevant government body”); Estate of Bohn v. Waddell, 174 Ariz. 239, 251
(App. 1992) (“None of the taxpayers exhausted available administrative
remedies. No recognized exception to the exhaustion rule excused their
failure to follow the administrative refund procedure. Therefore, the tax
court did not have subject matter jurisdiction.”). These holdings are
contrary to plaintiffs’ arguments that exhaustion is not required here.

¶18 Other cases on which plaintiffs rely are distinguishable as
they address issues that are inapplicable here. See Coconino Cnty. v. Antco,
Inc., 214 Ariz. 82, 86–87 ¶¶ 11–12 (App. 2006) (“the exhaustion of
[administrative] remedies doctrine is clearly inapplicable” where “[n]o
administrative action was pending . . . at the time the trial court dismissed
[the] complaint” and a “delegation agreement . . . specifically

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acknowledged [plaintiff’]s statutory right to” file the complaint); Zeigler v.
Kirschner, 162 Ariz. 77, 83, 85–86 (App. 1989) (finding class action claims
under 42 U.S.C. § 1983 “in the instant case were not subject to dismissal
because of the named plaintiffs’ failure to exhaust their state administrative
remedies;” “[t]he basic purpose of the exhaustion doctrine is to allow an
administrative agency to perform functions within its special competence,
including making a factual record, applying its expertise, and correcting its
own errors so as to lessen the need for judicial resolution” and remanding
for an evidentiary hearing to determine “whether either the futility or
irreparable harm exceptions should preclude application of the exhaustion
doctrine”); Farmers Inv. Co. v. Ariz. State Land Dep’t, 136 Ariz. 369, 370, 374
(App. 1982) (in affirming finding that public auction of groundwater “from
state land was void because the [Arizona State Land] Department could not
impose” a reimbursement condition, rejecting administrative exhaustion
argument because “[t]he administrative process had indeed run its course
so as to allow judicial intervention”); Manning v. Reilly, 2 Ariz. App. 310,
312 (1965) (finding facial challenges to city zoning ordinance “require
judicial determination and are beyond the scope of” the city’s
administrative “powers and authority. If the subject ordinance is void, the
appellees should not be compelled to inferentially admit its binding force
and effect by seeking administrative relief”). These cases are
distinguishable for various reasons. Among other things, the Board action
in this case was pending and had not been resolved during the entirety of
the superior court action, this is not a class action and plaintiffs are not
facially challenging applicable statutes (instead, challenging them as
applied). Accordingly, these cases do not support plaintiffs’ arguments on
appeal. With this preface, however, the court addresses plaintiffs’ various
arguments in turn.

A. Plaintiffs Are Challenging Administrative Action.

¶19 Plaintiffs argue exhaustion is not required because they “do
not challenge final agency action,” adding that “there has been no final
administrative action here.” That argument, however, ignores the statutory
limitation that only final Board action can be challenged in court. See A.R.S.
§ 32-128(J). Indeed, as noted above, the jurisdictional exhaustion
requirement prevents precisely the type of interlocutory challenge plaintiffs
are attempting to make here to circumvent the administrative process. See
Estate of Bohn, 174 Ariz. at 245–46; see also Moulton, 205 Ariz. at 511 ¶ 9 (citing
authority).

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¶20 Plaintiffs argue they are not challenging administrative action
because they are seeking to have their constitutional rights declared and
protected, are seeking to have certain statutes declared unconstitutional as
applied and assert the Board lacks the authority to decide those issues. But
plaintiffs do challenge administrative action by asserting that the very
statutes under which the Board is proceeding “are unconstitutional as
applied.” There are also unresolved factual disputes about whether
plaintiffs are violating legal obligations, and given plaintiffs’ failure to
exhaust, the factual record is far from complete. Resolution of those factual
disputes (which turns on evidence not yet presented in the administrative
process) is a prerequisite to resolving whether the statutes even apply to
plaintiffs. Tanner Cos. v. Ariz. State Land Dep’t, 142 Ariz. 183, 187–88 (App.
1984) (“An action for declaratory relief is not appropriate to review an
administrative decision when there exists a procedure to appeal from the
administrative ruling. Furthermore, the declaratory judgment procedure
may not be used to preempt or prejudge issues that are committed for initial
decision to an administrative body.”).

¶21 Plaintiffs also argue that A.R.S. § 32-101(B)(11), which defines
“engineering practice,” is void for vagueness. That claim, however, is
barred by Arizona Supreme Court precedent. Although conceding that the
Board’s authorizing act “could be better drawn and its meaning thereby
made clearer,” that court rejected such a challenge more than 50 years ago,
concluding that “the rights, duties and privileges of registrants and the
Board are sufficiently defined.” State Bd. of Tech. Registration v. McDaniel, 84
Ariz. 223, 236 (1958). That precedent is binding here. See Green v. Lisa Frank,
Inc., 221 Ariz. 138, 145 ¶ 13 (App. 2009). In short, and contrary to their
argument, plaintiffs are challenging administrative action, which negates
their first ground for asserting that exhaustion is not required.

B. Futility Does Not Excuse Exhaustion.

¶22 Plaintiffs argue that administrative exhaustion would be
futile because they seek a judicial declaration that various statutory
provisions are unconstitutional as applied, and the Board cannot enforce
unconstitutional statutes. “When alleged constitutional violations are
inextricably intertwined with government benefits for which
administrative remedies exist, the consistent trend in federal and state
courts is to uphold the requirement of an exhaustion of remedies.” Moulton,
205 Ariz. at 512 ¶ 16 (quotations omitted). Plaintiffs argue that their claims
are not “inextricably intertwined” with government benefits because they
do not seek a government benefit and thus are not required to exhaust their
remedies. But the presence or absence of a government benefit is not the

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lynchpin for whether exhaustion applies. See, e.g., Valley Vendors Corp. v.
City of Phoenix, 126 Ariz. 491 (App. 1980).

¶23 Contrary to plaintiffs’ position, “even where ‘[a]n agency has
no particular expertise to decide on the constitutionality of its own enabling
act and will not ordinarily rule on the issue in any event,’ exhaustion of
remedies has still been required.” See Estate of Bohn, 174 Ariz. at 250 (citing
cases) (noting the benefit of a fully developed record so courts “will not
have to decide ’important and difficult’ questions of constitutional law in
the absence of a factual background”). As the Board notes, where the
agency can consider at least some constitutional arguments and grant some
form of relief to remedy alleged harms, and the Legislature has assigned
some factual inquiry to the agency, exhaustion generally is required.
Building on Estate of Bohn, this court has stated that “exhaustion of
administrative remedies is of particular importance when the case raises
constitutional issues. The administrative agency may decide in favor of the
aggrieved party on other grounds, thus mooting the constitutional issue
and relieving the courts of the need to decide it.” Third & Catalina Assocs. v.
City of Phoenix, 182 Ariz. 203, 207 (App. 1994); accord Canyon del Rio Invs.,
L.L.C., 227 Ariz. at 343 ¶ 28. For these reasons, the court rejects plaintiff’s
futility argument.

C. Plaintiffs’ “Public Rights”/”Private Rights” Argument Does
Not Excuse the Exhaustion Requirement.

¶24 Plaintiffs argue exhaustion would be futile because at least
some of their claims implicate “‘private rights’ that can only be determined
by courts, as opposed to ‘public rights,’ such as government benefits, that
can be determined by executive agencies.” Plaintiffs cite no authority
suggesting that such a distinction is binding under Arizona law. Indeed,
plaintiffs concede that the United States Supreme Court has neither
“definitively explained” nor been “entirely consistent” in using such a
distinction. And the law review articles and dissents plaintiffs cite are not
binding.

¶25 The Board correctly notes that, under Arizona law,
administrative agencies offer an appropriate forum for adjudicating
various types of claims, including those involving “public rights” and
“private rights.” See Batty v. Ariz. State Dental Bd., 57 Ariz. 239, 247 (1941)
(citation omitted) (noting the “’power to hear and determine matters more
or less affecting public and private rights may be conferred upon and
exercised by administrative and executive officers without offending
constitutional provisions relating to the judicial power vested in the

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courts’”). “[A]dministrative action cannot be deemed futile if the agency
has the power to provide some relief.” Moulton, 205 Ariz. at 514 ¶ 24. Here,
the Board clearly has the power to provide some relief (if not complete
relief), the availability of which negates plaintiffs’ futility assertion.

D. Plaintiffs’ Assertions of Irreparable Harm Arising Out of
Administrative Fact Finding Do Not Excuse Exhaustion.

¶26 Plaintiffs note that the administrative process involves an
executive agency first adjudicating their rights and that any final Board
decision “can be judicially reviewed only in an ‘administrative appeal’ as
provided by” A.R.S. § 12-902(B), further asserting that “in this judicial
review, the courts are required to be biased in favor of the Board’s fact-
finding.” This administrative process, plaintiffs argue, should not be
applied here because it “is the exact process that Plaintiffs argue violates
their constitutional rights to due process and the separation of powers, the
injury they are suing to prevent.” Not so.

¶27 First, contrary to plaintiffs’ claims, the superior court must
defer only to the Board’s findings that are “supported by substantial
evidence.” Gaveck v. Ariz. State. Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436 ¶
11 (App. 2009). Moreover, if the Board’s “’actions do not satisfy the
aggrieved party, then [the party] may seek redress in the court system. The
plaintiff may not choose its administrative remedy through the framing of
its own complaint. If that were possible, the purpose of the exhaustion
doctrine would be thwarted.’” Moulton, 205 Ariz. at 514 ¶ 21 (citation
omitted). Similarly, the Board can determine whether plaintiffs complied
with the statutory requirements and also has the power to provide relief,
also showing that exhaustion is both required and appropriate. Id. at 514
¶¶ 23–24 (citing cases). Moreover, this is not -- as plaintiffs suggest -- a case
in which exhaustion is not required because the Board “has predetermined
a decision in the matter.” In sum, plaintiffs can seek judicial review after
they exhaust the Board’s administrative process. See A.R.S. § 32-128(J).

¶28 The authority plaintiffs cite does not support their argument
that administrative exhaustion is not required given a threat of irreparable
harm. In Zeigler, the primary case relied on by plaintiffs, the court
addressed a class action against the Arizona Health Care Cost Containment
System seeking declarations that past eligibility and claims practices for
services to be provided to Medically Indigent/Medically Needy
individuals were illegal and seeking injunctive relief preventing those
practices in the future. 162 Ariz. at 81. Given the claims for “classwide
declaratory and injunctive relief,” Zeigler stated that the court could not

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properly conclude as a matter of law on the bare
allegations of the complaint that pursuit and
exhaustion of the named plaintiffs’
administrative remedies would have had
realistic potential as a means for seeking to
induce the director to abandon or alter the
allegedly illegal documentation and verification
requirements affecting the putative class, or that
enforcement of the exhaustion doctrine would
not result in irreparable harm to members of the
class.

Id. at 86. This case, by contrast, is not a class action, plaintiffs’ challenges are
as applied (not facial) and plaintiffs are not being denied essential services.3
For these reasons, plaintiffs’ claims do not obviate exhaustion.

E. Plaintiffs’ Assertions Regarding the Board’s Jurisdiction Do
Not Excuse Exhaustion.

¶29 Plaintiffs argue that exhaustion does not apply “because this
case both challenges the jurisdiction of the Board to act and the Board does
not have ‘expertise’ to exercise in the administrative process.” Citing Collins
v. State, plaintiffs argue that “[a]n allegation relating to the competency of
[an agency] to impose sanctions on [a plaintiff] . . . is jurisdictional” and is
not subject to exhaustion. See Collins, 166 Ariz. at 413. But Collins is
distinguishable.

¶30 Collins addressed a complaint asking that an administrative
“order be set aside.” 166 Ariz. at 412. Here, by contrast, no final Board
decision has issued and the Board has taken no final action that plaintiffs
challenge. Simply put, plaintiffs are incorrect in claiming that Collins means
“a litigant may turn to a court at any time to challenge an agency’s legal
ability to impose penalties.” Collins also involved the application of A.R.S.
§ 12-902(B), which provides that an agency decision that becomes final
given the failure to timely object or respond “shall not be subject to judicial
review under the provisions of this article except for the purpose of questioning
the jurisdiction of the administrative agency over the person or subject matter.”
Collins, 166 Ariz. at 412 (citing A.R.S. § 12-902(B)). Here, by contrast, the

3 The other authority cited by plaintiffs -– a three Justice plurality in Elrod
v. Burns –- is not binding and did not discuss exhaustion, addressing
instead whether plaintiffs had an adequate remedy at law in given a request
for a preliminary injunction. 427 U.S. 347, 373 (1976).

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Board has not yet begun formal proceedings, let alone issued a final agency
decision. Finally, plaintiffs’ complaint sought declaratory relief based on
various constitutional theories, but did not press a claim that the Board
lacked jurisdiction over plaintiffs. In sum, plaintiffs have not shown the
superior court erred in dismissing their complaint for failure to exhaust
administrative remedies.

II. Lack of Standing and Ripeness.

¶31 “While the Declaratory Judgments Act is remedial and should
be liberally construed, A.R.S. § 12–1842, ‘the complaint must set forth
sufficient facts to establish that there is a justiciable controversy.’” Yes on
Prop 200 v. Napolitano, 215 Ariz. 458, 468 ¶ 29 (App. 2007) (quoting Planned
Parenthood Ctr. of Tucson, Inc. v. Marks, 17 Ariz. App. 308, 310 (1972)). “[A]
justiciable controversy exists if there is an assertion of a right, status, or legal
relation in which the plaintiff has a definite interest and a denial of it by the
opposing party.” Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 45 ¶
10 (App. 2000) (quotation omitted). In Arizona courts, standing and
ripeness are prudential doctrines applied “as a matter of sound judicial
policy.” Bennett v. Napolitano, 206 Ariz. 520, 524 ¶ 16 (2003).

¶32 Among other things, standing and ripeness prevent courts
“from rendering a premature decision on an issue that may never arise.”
Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 280 ¶ 36 (2019). As
applied in this case, a factual dispute remains about whether plaintiffs were
practicing, offering to practice or by implication purporting to be qualified
to practice any Board regulated profession or obligation, in violation of
applicable regulatory law. Without any administrative hearing (let alone,
final administrative action), this is not a case where the record is
“sufficiently developed” to allow the parties to brief “in detail, the legal
claims and arguments based on” concrete facts of record. See id. at 280 ¶ 37;
see also Marks, 17 Ariz. App. at 309-10 (“A ‘justiciable controversy’ arises
where adverse claims are asserted upon present existing facts, which have
ripened for judicial determination;” addressing a post-trial special action in
a case involving no administrative proceedings and concluding that a
declaratory action challenging statutory restrictions on abortion was “a
justiciable controversy;” rejecting argument that “’the complaint does not
state a justiciable controversy because the plaintiffs do not allege that they
are being” criminally prosecuted or threatened with criminal prosecution“).

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¶33 Should any such formal investigation ever proceed,
depending on the facts presented, the Board might rule in plaintiffs’ favor.
Such a finding would obviate any final agency decision adverse to
plaintiffs. Moreover, even if the Board ruled against plaintiffs, they could
then pursue a superior court challenge. Factually, of course, the Board is in
the better position to address that inquiry in the first instance. See, e.g., Sw.
Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 444-45 ¶ 26 (App. 2001).
Thus, plaintiffs’ claims are not yet ripe and may never become so. For
similar reasons, plaintiffs have not shown that the superior court erred in
concluding they lacked standing. See Brewer v. Burns, 222 Ariz. 234, 237 ¶
12 (2009) (Standing requires a party to “allege a particularized injury that
would be remedial by judicial decision.”).4

CONCLUSION

¶34 The dismissal is affirmed.

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

4 Other standing cases cited by plaintiffs are distinguishable. See City of
Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 210 ¶¶ 9, 11–12 (2019) (in
special action proceeding, concluding A.R.S. § 40-285(A) did not give the
Arizona Corporation Commission power over City’s exercise of eminent
domain, meaning the Commission acted without jurisdiction to enter an
order, meaning the order issued “constitutes an injury to the City” and the
City had standing); Ariz. Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347,
351 ¶ 15 (2012) (noting that one plaintiff “unquestionably has standing . . .
Therefore, we need not decide whether [another plaintiff] also has
standing”); Estate of Stewart, 230 Ariz. 480, 483–84 ¶¶ 8–12 (App. 2012)
(concluding decedent’s son had standing to challenge decedent’s will and
trust disinheriting son and that dispute was ripe).

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