Do v. Board of Regents

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

SARA DO, Plaintiff/Appellant,

v.

ARIZONA BOARD OF REGENTS, Defendant/Appellee.

No. 1 CA-CV 22-0752
FILED 10-19-2023

Appeal from the Superior Court in Maricopa County
No. LC2022-000220-001
The Honorable Daniel J. Kiley, Judge, (Retired)

REVERSED AND REMANDED

COUNSEL

Beyers Farrell PLLC, Phoenix
By Michael J. Farrell
Counsel for Plaintiff/Appellant

Affeld Grivakes LLP, Los Angeles, California
By Brian R. England
Counsel for Plaintiff/Appellant

Osborn Maledon, P.A., Phoenix
By Mary R. O’Grady, Kristin L. Windtberg, Joshua J. Messer
Counsel for Defendant/Appellee

DO v. BOARD OF REGENTS
Opinion of the Court

OPINION

Judge Anni Hill Foster delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.

F O S T E R, Judge:

¶1 Statutes that outline procedures for judicial review of
administrative decisions provide notice to Arizona’s citizens of the
requirements when pursuing grievances against the government. Likewise,
the government must follow the statutory requirements, including
providing proper notice of its resolution of the grievance. This Court is
tasked with interpreting those statutes and deciding whether, in this case,
the superior court erred in dismissing appellant Sara Do’s appeal of a
decision made by the Arizona Board of Regents (“ABOR” or “Board”) as
untimely. Because ABOR, the state agency that oversees Arizona’s
universities, failed to properly serve Do with its final administrative
decision, the time for her to appeal never began. Thus, this Court reverses
the decision finding her appeal was untimely and remands to the superior
court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 In the Summer of 2021, Do was enrolled in the Arizona State
University Edson College of Nursing and Health Innovation (“ASU”) when
she received a failing “E” grade for her NUR 478 Nursing Practice: Complex
Care course. Pursuant to the Edson grievance policy, Do challenged her
grade through ASU’s informal grievance process on August 19, 2021. When
that did not resolve her complaint, Do initiated a formal grievance and a
formal hearing was held before the Edson Grievance Committee about two
weeks later.

¶3 In an October 19, 2021 email, Associate Dean Kenny
forwarded Do an email from Dean Karshmer upholding the failing “E”
grade:

I’ve carefully reviewed the information provided to me by the
Grievance Committee regarding the grievance filed by Ms.
Sara Do against Professor Candace Keck in regard to

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DO v. BOARD OF REGENTS
Opinion of the Court

receiving an E grade for NUR 478 – Nursing Practice:
Complex Care in Summer 2021.

I support the recommendation of the Edson Grievance
Committee to uphold the grade of E based on evidence
presented.

As the Dean’s designee for academic grievance processes,
please inform Ms. Do of my decision.

Edson’s grievance policy stated that the Dean’s decision was final.

¶4 Almost nine months later, Do filed a Notice of Appeal for
Judicial Review of Administrative Decision (“Administrative Appeal”) in
superior court. ABOR moved to dismiss the action for lack of subject matter
jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12-904. The
superior court granted the Board’s motion and entered judgment, finding
Do’s appeal untimely under section 12-904 and noting it was bound by
United Farm Workers of Am., AFL-CIO v. Arizona Agr. Emp. Rels. Bd., 149 Ariz.
70, 73 (App. 1986) (“UFW”). Do timely appealed the superior court’s
judgment.

DISCUSSION

¶5 This Court reviews the interpretation of rules and statutes de
novo. Shea v. Maricopa Cnty., 255 Ariz. 116, 119, ¶ 11 (2023). In doing so, this
Court “turn[s] first to the text because unambiguous text is dispositive.” Id.
at 120-21, ¶ 19 (quoting State ex rel. Brnovich v. City of Phx., 249 Ariz. 239,
244, ¶ 21 (2020)). Courts have “no authority to extend a law beyond the fair
and reasonable meaning of its terms”; rather, “it is the duty of all courts to
confine themselves to the words of the Legislature—nothing adding
thereto.” State ex rel. Ariz. Dep’t of Revenue v. Tunkey, 254 Ariz. 432, 438, ¶ 28
(2023) (Bolick, J., concurring) (quoting Flowing Wells Co. v. Culin, 11 Ariz.
425, 429 (1908)).

¶6 Do contends her Administrative Appeal was timely because
the 35-day window to appeal under section 12-904(A) never began to run.
She argues ABOR never served her with the final decision, instead only
emailing it to her, which failed to satisfy the statutory requirement of
personal delivery or certified mailing. See A.R.S. § 12-904(A).

¶7 The relevant portion of section 12-904(A), which specifies that
the time to challenge an administrative decision is triggered when “the
decision sought to be reviewed is upon the party affected,” states:

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DO v. BOARD OF REGENTS
Opinion of the Court

The method of service of the decision shall be as provided by
law governing procedure before the administrative agency, or
by a rule of the agency made pursuant to law, but if no
method is provided a decision shall be deemed to have been
served when personally delivered or mailed by certified
mail to the party affected at the party’s last known residence
or place of business.

(Emphasis added.) Neither party cites any other statute or administrative
rule that addresses service in this context and the Court finds none. Because
section 12-904(A) is the default statute when no other law or rule governs,
its text is what applies. Failure to timely file an action to review a final
agency decision bars the parties “from obtaining judicial review of the
decision.” A.R.S. § 12-902(B).

¶8 Citing Scott v. G. A. C. Fin. Corp., ABOR counters that Do had
actual notice of ASU’s final decision, which satisfied the statutory purpose,
and Do suffered no prejudice. 107 Ariz. 304, 305 (1971) (“[T]he purpose of
process is to give the party to whom it is addressed actual notice.”). But
email did not exist when Scott was decided. Even then, the Scott court
supported its holding with Arizona Rule of Civil Procedure 4(d)(1), which
(as it read in 1971), provided for service by leaving documents at a party’s
“dwelling house or usual place of abode.” Id. Citing Nowell v. Nowell, 384
F.2d 951 (5th Cir. 1967), the Scott court adopted a reading of Rule 4(d)(1)
that “[n]o hard and fast rule can be fashioned” to define “dwelling house
or usual place of abode,” but that “the practicalities of the particular fact
situation determine whether service meets the requirements of 4(d)(1).”
Scott, 107 Ariz. at 306. No such ambiguity exists in section 12-904. Scott is
not applicable.

¶9 Both the Board and the superior court relied on this court’s
1986 opinion holding a plaintiff who received an agency’s decision “by
ordinary mail and not by registered mail or personal service” was
nonetheless “served within the meaning of § 12-904” even though
“improperly served.” United Farm Workers, 149 Ariz. at 73. While UFW
addressed the issue of service under section 12-904, the court provided no
authority for its conclusion. Arizona’s Supreme Court “ha[s] long held that,
where no party is misled or prejudiced, non-statutory defects in a timely
notice of appeal do not preclude jurisdiction.” Shea, 255 Ariz. at 120, ¶ 16
(emphasis added) (citation omitted). But here, the requirement is one
enacted by the Legislature. It is not this Court’s role to rewrite the statute,
especially when the statutory language is clear. Ballesteros v. Am. Standard
Ins. Co. of Wisc., 226 Ariz. 345, 349, ¶ 17 (2011).

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DO v. BOARD OF REGENTS
Opinion of the Court

¶10 Do contends that Thielking v. Kirschner, 176 Ariz. 154 (App.
1993), overruled UFW and therefore both the Board’s and the superior
court’s reliance on it are misplaced. But Thielking is not instructive. Though
the case examined section 12-904 extensively, it concerned whether extra
days for mailing could be included in the time frame, not the issue
presented here. Thielking, 176 Ariz. at 157-160. Thielking did not address
whether actual notice sufficed in lieu of conformance to statutory notice
requirements in section 12-904.

¶11 Even if the UFW analysis was correct when decided, unlike
the superior court, this Court is not bound by UFW. “The trial judge, of
course, was obliged to follow UFW; [this Court] owe[s] it only our
respectful consideration.” Thielking, 176 Ariz. at 162. Having found
improper service under the statute, the Court in UFW stated service was
sufficient merely because plaintiff “did receive” the administrative
decision. This Court declines to follow UFW insofar as it holds that actual
notice excuses statutory compliance. The statute expressly states service via
personal delivery or certified mail are the default methods unless another
law or rule applies. ABOR does not contend that such a law or rule applies,
and this Court finds none.

¶12 “Certified mail” is commonly understood as a service
provided by the United States Postal Service where the sender is given a
receipt of the mailing and a subsequent verification after the article is
delivered. See Jones v. Flowers, 547 U.S. 220, 247 (2006) (Alito, J., dissenting).
This method provides the opportunity for parties to challenge or defend
whether notice was proper. Id. Because the email sent to Do does not meet
this definition, it does not meet the requirement of section 12-904. The
second option for providing service under the statute allows for “personal
delivery.” While Title 12, Article 6, Chapter 7, section 12-901 provides
definitions applicable to the chapter, the phrase “personal delivery” is not
defined. Other statutes in Arizona’s code use the phrase “personal
delivery,” but it is followed by a clause that states, “or by any other method
that is reasonably calculated to give actual notice.” See, e.g., A.R.S.
§ 15-534.03. If section 12-904 contained such a clause, the Board’s argument
would be compelling. Without that clause, this Court will not read
language into section 12-904 that the Legislature has not put there.

¶13 Finally, section 12-903 delegates authority to the Supreme
Court to “make rules of pleading, practice and procedure supplementary
to but not inconsistent with the provisions of this article” which could
arguably provide for clarification on what constitutes “personal delivery”
under section 12-904. A.R.S. § 12-903. Under this authority, the Supreme

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DO v. BOARD OF REGENTS
Opinion of the Court

Court adopted the Rules of Procedure for Judicial Review of Administrative
Decisions (“JRAD”). Those rules, though, only apply once a final
administrative decision is appealed to the superior court. See JRAD 1(a).
Even though Rule 2 of the JRAD dictates that service be consistent with
Arizona Rule of Civil Procedure 5 allowing for “delivering it by any other
means, including electronic” with the consent of the receiving party, the
Board’s argument that actual notice was sufficient is flawed. Reading
section 12-904 together with the JRAD provides no guidance to assist in
defining “personal delivery” in any way other than handing the decision to
the recipient.

¶14 While this state’s Supreme Court in other contexts has
determined that actual notice is sufficient to meet due process
requirements, see, e.g., Scott, 107 Ariz. at 306, it has also stated: “Statutes . . .
creating a special procedure for the protection of personal rights must be
strictly followed and the failure of either party to comply therewith loses
whatever rights the law was intended to protect.” Tempe Union High Sch.
Dist. v. Hopkins, 76 Ariz. 228, 233 (1953) (citation omitted). Actual notice
does not meet the requirements of section 12-904. The plain language of
section 12-904 is unambiguous.

¶15 Under section 12-904(A), service of the agency’s final decision
is only effective upon personal service or via certified mail, which means
the 35-day time for appealing does not start until proper service of the
decision has been accomplished.

¶16 ABOR references the unpublished decision Minor v. City of
Scottsdale from this Court last year to support its position that service was
sufficient. 1 CA-CV 21-0450, 2022 WL 774874 (Ariz. Ct. App. Mar. 15, 2022).
Minor is not binding on this Court, although it may be considered for its
persuasive value. Ariz. R. Sup. Ct. 111(c)(1)(C). Minor cited UFW and other
cases for the general proposition that a party may be served upon receiving
actual notice in lieu of strict compliance with service under a statute. Minor,
1 CA-CV 21-0450, at *5, ¶ 25. But Minor is distinguishable from UFW and
this case. The Minor court determined that section 12-904 did not apply to
the defendants in that case and instead applied the Arizona Rules of Civil
Procedure. Id. at *3, ¶ 16, *4, ¶ 19. Minor’s citation to UFW stands merely for
the principle that actual notice may compensate for improper notice in
circumstances when section 12-904 is not applicable.

¶17 While other Arizona cases have permitted actual notice in lieu
of strict notice compliance, many have dealt with notice under procedural
rules instead of statutes. In Scott, the Court reviewed service under then

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DO v. BOARD OF REGENTS
Opinion of the Court

Arizona Rule of Civil Procedure 4(d)(1), specifically addressing whether a
party was served at his “dwelling house or usual place of abode.” Scott, 107
Ariz. at 305-06. The Court determined that if a party received actual notice,
then the court’s construction of the Rule should be broad. Id. at 306; see also
Marks v. LaBerge, 146 Ariz. 12, 15 (App. 1985). In a case involving the
Arizona Rules of Family Law Procedure, this Court took a similar approach,
holding that “strict technical compliance with rules governing service may
be excused when the court has already acquired jurisdiction over the
receiving party and that party receives actual, timely notice.” Kline v. Kline, 221 Ariz. 564, 570, ¶ 21 (App. 2009).

¶18 Two other cases applied an actual notice standard in lieu of
technical adherence to statutory notice but did so independent of section
12-904. In Matter of Estate of Dobert, a life-insurance company received notice
by regular mail and facsimile at an auxiliary office that a policy owner
divorced his beneficiary. 192 Ariz. 248, 250, ¶ 3, 255, ¶ 29 (App. 1998). The
applicable statute required personal service or certified mailing to the
company’s main office. Id. at 254, ¶ 26. The court followed “the general rule
that ‘one having actual notice is not prejudiced by and may not complain
of the failure to receive statutory notice.’” Id. at 255, ¶ 32 (quoting Matter of
Est. of Ivester, 168 Ariz. 323, 327 (App. 1991)). Similarly, in Ivester, the
relevant statute required personal service or service by regular mail, but the
party received actual notice. 168 Ariz. at 327.

¶19 By contrast, Arizona cases have, from time to time, found
actual notice insufficient, particularly when statutes govern notice. Before
statehood and adoption of the Rules of Civil Procedure, the Supreme Court
dealt with a case where a stranger told a party “that the stranger had been
served with process in a case against the” party. Nat’l Metal Co. v. Greene
Consol. Copper Co., 11 Ariz. 108, 113 (1907). In that scenario, the court held
the party “nevertheless could appropriately ignore the matter[] and assume
that the court would not proceed to judgment until service should be
made.” Id. While acknowledging that informal or deficient service could
provide notice, the court held “where there is no service there is no notice,
irrespective of any knowledge which the defendant may acquire
informally.” Id. And when construing statutory service on a nonresident
motorist, this Court found “failure to comply with the statutes and rules
concerning legal notice to (or service of process upon) the defendants”
meant that the trial court lacked jurisdiction to enter judgment against
them. Stinson v. Johnson, 3 Ariz. App. 320, 321 (1966). The court stressed that
such statutes are “in derogation of the common law and must be strictly
construed.” Id. at 321-22 (quoting Lendsay v. Cotton, 123 So. 2d 745, 746 (Fla.
App. 1960) and Kohler v. Derderian, 187 F. Supp. 173, 175 (S.D.N.Y. 1960)).

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Opinion of the Court

¶20 Section 12-902(B) supports the strict reading of statutory
provisions in the article by holding parties to strict compliance with the
process outlined for judicial review of administrative decisions. It states
that “[i]f under the terms of the law governing procedure before an agency
an administrative decision becomes final because of failure to file any
document . . . within the time allowed by the law, the decision is not subject
to judicial review,” with an exception for a challenge to jurisdiction. A.R.S.
§ 12-902(B). As held in Tempe Union High Sch. Dist., the failure of either party
to comply with procedural requirements results in a loss of “whatever
rights the law was intended to protect.” 76 Ariz. at 233. Section 12-904
provides clear notice of the requirements for service, and due process
requires that ABOR must be held to the same standard as Do.

¶21 It is not this Court’s role to second guess the plain language
enacted by the Legislature when the Legislature has explicitly outlined the
procedures that a government agency must follow in a contested
proceeding. See Ballesteros, 226 Ariz. at 349, ¶ 17. Nor is it this Court’s role
to take up the role of the Legislature in its decisions; Arizona’s Constitution
prohibits such endeavors. See Ariz. Const. art. 3. (“The powers of the
government of the state of Arizona shall be divided into three separate
departments…and no one of such departments shall exercise the powers
properly belonging to either of the others.”). It is especially not so when the
Legislature delegated the authority to ABOR, if it so chose, to adopt a rule
to provide for service by email. ABOR’s statutory defect in service cannot
be overcome. Due to the unambiguous meaning of section 12-904(A), this
Court holds that ABOR failed to properly serve Do with notice of its final
decision and therefore her appeal was timely.

CONCLUSION

¶22 For the foregoing reasons, this Court reverses and remands to
the superior court for further proceedings consistent with this decision.

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

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