ruco/thaler v. Acc

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RESIDENTIAL UTILITY CONSUMER OFFICE; STUART THALER,
Petitioners,

v.

ARIZONA CORPORATION COMMISSION, an agency
of the State of Arizona; KEVIN THOMPSON, in his official capacity
as a member of the Arizona Corporation Commission; NICK MYERS,
in his official capacity as a member of the Arizona Corporation
Commission; LEA MARQUEZ PETERSON, in her official capacity
as a member of the Arizona Corporation Commission; RACHEL
WALDEN, in her official capacity as a member of the Arizona
Corporation Commission; RENE LOPEZ, in his official capacity as a
member of the Arizona Corporation Commission; ARIZONA WATER
COMPANY; ARIZONA PUBLIC SERVICE COMPANY; EPCOR WATER
ARIZONA, INC.; GLOBAL WATER - SANTA CRUZ WATER
COMPANY, INC.; GLOBAL WATER - PALO VERDE UTILITIES
COMPANY, INC.; TUCSON ELECTRIC POWER COMPANY, UNS
ELECTRIC, INC.; UNS GAS, INC.; LIBERTY UTILITIES
(LITCHFIELD PARK WATER & SEWER) CORP.,
Respondents.

No. 1 CA-SA 25-0209
FILED 11-21-2025

Petition for Special Action from the Superior Court in Maricopa County
No. CV2025-011288
The Honorable Susanna C. Pineda, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED
 COUNSEL

Coppersmith Brockelman PLC, Phoenix
By D. Andrew Gaona, Austin C. Yost, Kelleen Mull
Counsel for Petitioner Residential Utility Consumer Office

Residential Utility Consumer Office, Phoenix
By Daniel W. Pozefsky, Sarah Barrios Cool
Counsel for Petitioner Residential Utility Consumer Office

Arizona Center for Law in the Public Interest, Phoenix
By Daniel J. Adelman, Chanele N. Reyes
Counsel for Petitioner Stuart Thaler

Arizona Corporation Commission, Phoenix
By Thomas Van Flein, Mike Dailey, Maureen A. Scott
Counsel for Respondent Arizona Corporation Commission

Osborn Maledon, P.A., Phoenix
By Mary R. O’Grady, Joseph N. Roth, Michael Moorin
Counsel for Respondent Arizona Public Service Company

Osborn Maledon, P.A., Phoenix
By Meghan H. Grabel, Phillip W. Londen, Elias J. Ancharski, Jacob E.
Abrahamian
Counsel for Respondent Arizona Water Company

Papetti Samuels Weiss McKirgan LLP, Scottsdale
By Randy Papetti, Lawrence Kasten
Counsel for Respondent EPCOR Water Arizona Inc.

Snell & Wilmer LLP, Phoenix
By Paloma M. Scheiferstein
Counsel for Respondent Global Water – Santa Cruz Water Company, Inc. and
Global Water – Palo Verde Utilities Company, Inc.

Global Water Resources, Inc., Phoenix
By Robert J. Metli
Counsel for Respondent Global Water

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Snell & Wilmer L.L.P., Phoenix
By Michael W. Patten
Counsel for Respondents Tucson Electric Power Company, UNS Electric, Inc.,
UNS Gas, Inc.

Tucson Electric Power Company, Tucson
By Megan C. Hill
Counsel for Respondent Tucson/UNS

Osborn Maledon, P.A., Phoenix
By Timothy J. Sabo
Counsel for Respondent Liberty Utilities (Litchfield Park Water & Sewer) Corp.

Arizona Attorney General’s Office, Phoenix
By Mary M. Curtin, Andy McCoy
Counsel for Amicus Curiae State of Arizona

Holland & Hart LLP, Phoenix
By Michelle Brandt King, Austin W. Jensen
Counsel for Amicus Curiae Arizona Large Customer Group

Scharf-Norton Center for Constitutional Litigation, Phoenix
By Timothy Sandefur
Counsel for Amicus Curiae Goldwater Institute

OPINION

Acting Presiding Judge Michael J. Brown delivered the opinion of the
Court, in which Judge Cynthia J. Bailey and Judge Veronika Fabian joined.

B R O W N, Judge:

¶1 Petitioners Residential Utility Consumer Office and Stuart
Thaler (collectively “RUCO” except as noted), requested a judgment
declaring that the Arizona Corporation Commission (“Commission”)
improperly authorized utility companies to propose using formula rates in
lieu of following traditional ratemaking methods. RUCO filed its complaint
under the Administrative Procedure Act (“APA”), which authorizes any
person affected by a “substantive policy statement” to seek a judicial
declaration on whether the statement “constitutes a rule,” and thus requires
compliance with the APA’s rulemaking procedures. See A.R.S. § 41-1034(B).

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The superior court granted the Commission’s motion to dismiss, holding
the APA is inapplicable and the complaint was untimely. Because the
Commission is subject to the APA, generally, and RUCO timely filed its
complaint for declaratory relief, we vacate the court’s ruling and remand
for further proceedings.

BACKGROUND

¶2 The Arizona Constitution gives the Commission authority to
set rates that a public service corporation (utility) may charge its customers.
Ariz. Const. art. 15, § 3; Ariz. Pub. Serv. Co. v. Ariz. Corp. Comm’n, 255 Ariz.
16, 18, ¶ 2 (App. 2023). The Commission’s ratemaking power is full and
exclusive. Johnson Utils., L.L.C. v. Ariz. Corp. Comm’n, 249 Ariz. 215, 221,
¶¶ 21, 23 (2020). When setting rates, the Commission “is required to
ascertain the fair value of the company’s property and use that value as a
rate base for calculating just and reasonable rates.” Residential Util.
Consumer Off. v. Ariz. Corp. Comm’n (“RUCO I”), 240 Ariz. 108, 112, ¶ 15
(2016). The Commission may use a “full rate case” to determine fair value
or it can utilize alternative methods, including reliance on updated versions
of earlier submissions or summarized financial information. Id. at 113,
¶ 19. The full rate case uses a historical test year to calculate rates, with a
“test year” defined as the “one-year historical period used in determining
rate base, operating income and rate of return.” See Ariz. Admin. Code
(“A.A.C.”) R14-2-103(A)(3)(p); Freeport Minerals Corp. v. Ariz. Corp. Comm’n,
244 Ariz. 409, 411, ¶ 7 (App. 2018) (explaining that a rate case determines
rates using data from a test year).

¶3 In 2023, the Commission opened a “generic” docket
(“Docket”) to consider modifications to the test year rules. Several
individuals and entities filed responses or comments. The Commission
held a special open meeting in March 2024 to discuss potential changes to
the test year rules, including authorizing future use of a formula rate plan.
The Commission explained that the plan would use “pre-specified
formulas” to “guarantee a return to the utilities – with any costs in excess
of expectations given to the customers and any lessened costs paid back to
the customer base.”

¶4 In September 2024, RUCO sought leave from the Commission
to intervene as a party in interest in the Docket under its statutory authority
to intervene or appear on behalf of residential utility consumers before the
Commission. See A.R.S. § 40-464(A)(2). A few days later, the Commission
issued a procedural order explaining that “[g]eneric and rulemaking
dockets do not have parties” and because “there are no parties to this

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Opinion of the Court

matter,” any person desiring notice of the filings in the Docket must sign
up to follow it on the Commission’s website.

¶5 After the Commission held a second open meeting, two
commissioners filed a draft policy statement on formula rates. In response,
the Arizona Attorney General and RUCO filed statements opposing a
policy that would allow alternative ratemaking methods, asserting such a
change must be enacted through the APA’s rulemaking procedures. The
Commission then voted 3-2 to approve the policy statement authorizing use
of formula rates. On December 31, 2024, the Commission issued an order,
Decision No. 79647 (“Decision”), setting forth findings of fact and
conclusions of law, and formally adopting the policy statement.

¶6 Although not a party, RUCO applied for rehearing and the
Commission denied the application on February 19, 2025. Citing Article 15,
Section 3 of the Arizona Constitution, which grants the Commission
authority to “prescribe just and reasonable rates . . . by public service
corporations,” the Commission explained that such authority extends to
“the method to be used in creating those rates,” and the Decision was “an
expression of this authority.” At least eight companies have since filed
applications with the Commission to implement formula rate plans.

¶7 On March 28, 2025, RUCO filed its complaint for declaratory
judgment in the superior court under § 41-1034(B). RUCO alleged the
Commission’s adoption of the policy statement improperly authorized
utilities to implement formula rates. Claiming such action should be
confined in formal rulemaking procedures, RUCO asked the superior court
to declare the Decision constitutes a “rule[,] not a substantive policy
statement and is subject to the rulemaking mandates of the APA.” 1 The
APA requires public notice of proposed rulemaking and a 30-day window
for public comment. A.R.S. §§ 41-1022(A), (D), -1023(B).

1 A rule is “an agency statement of general applicability that
implements, interprets or prescribes law or policy, or describes the
procedure or practice requirements of an agency.” A.R.S. § 41-1001(21). A
“substantive policy statement” is a “written expression which informs the
general public of an agency’s current approach to, or opinion of, the
requirements of the federal or state constitution, federal or state statute,
administrative rule or regulation, or final judgment of a court of competent
jurisdiction, including, where appropriate, the agency’s current practice,
procedure or method of action based upon that approach or opinion. A
substantive policy statement is advisory only.” A.R.S. § 41-1001(24).
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¶8 Thaler and the Arizona Large Customer Group intervened as
plaintiffs seeking the same relief. Several utilities, including Arizona Public
Service Company (“APS”), intervened as defendants. The Commission
then moved to dismiss RUCO’s complaint, asserting the APA does not
govern the Commission’s “rulemaking or policymaking” when it exercises
“constitutional ratemaking authority.” The Commission also argued
RUCO failed to timely appeal the Decision under A.R.S. § 40-254.01, which
authorizes a party in interest to challenge any order of the Commission
relating to ratemaking or rate design by appealing to this court.

¶9 After briefing and oral argument, the superior court granted
the motion because (1) “RUCO’s claim for declaratory relief is solely based
on the erroneous premise that the Commission’s actions are subject to the
APA,” and (2) the complaint was untimely under A.R.S. § 40-254, which
requires a “party in interest” to file a complaint in the superior court within
30 days after a rehearing is denied.

¶10 RUCO timely appealed to this court and also sought special
action relief in the Arizona Supreme Court, which declined jurisdiction
without prejudice to seeking special action relief in this court. This special
action followed.

SPECIAL ACTION JURISDICTION

¶11 “The decision to accept or reject special action jurisdiction is
highly discretionary.” Am. Fam. Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511,
¶ 9 (App. 2009). We accept jurisdiction for the following reasons.

¶12 First, RUCO has no “equally plain, speedy, or adequate”
remedy by appeal. Ariz. R.P. Spec. Act. 12(a). We recognize the unique
posture this case presents: RUCO has a remedy by appeal, which is pending
in this court. But given the cases pending before the Commission and the
timeframe under which the Commission must proceed on those cases, see
A.C.C. R14-2-103(B)(11)(d)–(g), we accept jurisdiction to avoid unnecessary
litigation likely to occur after public utilities implement formula rates as
authorized by the Decision. See Arizonans for Second Chances, Rehab. & Pub.
Safety v. Hobbs, 249 Ariz. 396, 405, ¶ 20 (2020) (accepting special action
jurisdiction to provide time-sensitive clarification). And significantly, we
have a statutory obligation to prioritize this case. See A.R.S. § 40-255 (stating
that when the Commission is a party, the case “shall be preferred and shall
be heard and determined in preference to other civil matters except election
actions”).

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¶13 Second, acceptance of special action jurisdiction may be
appropriate when the questions raised are of statewide importance.
Inzunza-Ortega v. Superior Court, 192 Ariz. 558, 560 (App. 1998). The
Arizona Constitution outlines the legislative authority to “prescribe rules
and regulations to govern” Commission proceedings. Ariz. Const. art. 15,
§ 6. Ensuring that all state agencies, including the Commission, abide by
constitutional limits is of statewide importance. Dobson v. State ex rel.
Comm’n on Appellate Ct. Appts., 233 Ariz. 119, 121, ¶ 7 (2013) (“Special action
jurisdiction is appropriate here because the petition presents purely legal
questions of statewide importance that turn on interpreting Arizona’s
Constitution.”). Also, because the Commission’s rules and ratemaking
authority affect a substantial portion of Arizona’s population, the questions
raised in this petition have statewide importance.

¶14 Third, accepting jurisdiction here reflects our attempt to
provide “immediate appellate court guidance” on legal issues to further
“the substantial interest in achieving judicial economy.” State ex rel.
Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 9 (App. 2001); see also Chevron
Chem. Co. v. Superior Court, 131 Ariz. 431, 434 (1982) (accepting special action
jurisdiction “because it appears from the pleadings that there are numerous
litigants who are uncertain as to the law, and that a decision of this court is
necessary to settle the matter and prevent further and unnecessary
litigation”). Under these circumstances, we can resolve this more
expeditiously as a special action.

¶15 Finally, while the Commission and APS argue against
accepting jurisdiction, nothing in their extensive briefing asserts that the
Commission or any of the respondents will be harmed by addressing the
narrow questions presented here through a special action. No party has
complained of insufficient time to brief the issues presented, interested
stakeholders submitted amicus briefs, and the respondents, as well as the
Commission, were able to respond to that briefing.

DISCUSSION

¶16 We address whether the superior court erred in concluding
(1) the APA does not apply to the Commission, and (2) the timeliness of
RUCO’s petition is governed by statutes specific to the Commission
(§§ 40-254, -254.01) instead of § 41-1034(B), which is part of the APA.
Because these are purely legal issues requiring us to interpret statutes, our
review is de novo. Johnson Utils., 249 Ariz. at 219, ¶ 11. We also review a
ruling on a motion to dismiss de novo. City of Mesa v. Ryan, 258 Ariz. 297,
299, ¶ 8 (2024).

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¶17 Interpreting statutes “requires us to determine the meaning
of the words the legislature chose to use.” S. Ariz. Home Builders Ass’n v.
Town of Marana, 254 Ariz. 281, 286, ¶ 31 (2023). “We do so neither narrowly
nor liberally, but rather according to the plain meaning of the words in their
broader statutory context, unless the legislature directs us to do otherwise.”
Id. We interpret statutory provisions in view of the entire text, considering
the context and related provisions. See Fann v. State, 251 Ariz. 425, 434, ¶ 25
(2021).

¶18 To begin, and contrary to the assertion made by intervening
respondent APS, because RUCO seeks a declaratory judgment challenging
the validity of the Decision, the case was ripe once the Commission issued
the Decision. Under the plain language of § 41-1034(B), a person may seek
declaratory relief when “the plaintiff asserts that a rule is invalid due to an
agency’s failure to comply with the applicable statutory procedures when
promulgating the rule.” Samaritan Health Sys. v. Ariz. Health Care Cost
Containment Sys. Admin., 198 Ariz. 533, 537, ¶ 22 (App. 2000).

A. Applicability of the APA

¶19 RUCO argues the superior court erred in holding that the
Commission was exempt from the entire APA. Under Arizona law, the
APA governs the rulemaking process for all state agencies unless expressly
exempted. A.R.S. § 41-1002(A). The Commission is considered a state
agency, albeit one with its own constitutional grant of authority. A.R.S.
§ 41-1001(1) (“‘Agency’ means any board, commission, department, officer
or other administrative unit of this state, . . . whether created under the
Constitution of Arizona or by enactment of the legislature.”). The APA’s
requirements for public notice, public comment, and other procedural
safeguards ensure transparency and accountability in rulemaking. See
Carondelet Health Servs., Inc. v. Ariz. Health Care Cost Containment Sys.
Admin., 182 Ariz. 221, 229 (App. 1994) (“[T]he intent of the APA [is] to
increase public access to agencies and facilitate and encourage public
participation in the formulation of rules.”).

¶20 The Commission acknowledged the APA’s applicability, at
least generally, when it adopted the purported substantive policy statement
and declared that any person who believes “this substantive policy
statement . . . impose[s] additional requirements or penalties on regulated
parties . . . may petition the agency under section 41-1033, Arizona Revised
Statutes, for a review of the statement.” The cited statute is from the APA’s
chapter on rulemaking, A.R.S. §§ 41-1021 through -1039. And in denying
RUCO’s request for rehearing, the Commission explained that following

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“the APA rulemaking process when setting or testing a rate formula” is not
required “as long as the [Commission’s] actions fall within the . . .
constitutional adjudicatory or ratemaking functions and do not involve the
promulgation of substantive rules.” (Emphasis added.) These statements
contradict the Commission’s assertion in this proceeding that it is exempt
from the entire APA.

¶21 Even assuming the Commission’s statements do not
constitute waiver of its attempt to distance itself from the APA, we are not
persuaded by the Commission’s suggestion that caselaw supports a blanket
exemption. The Commission cites US West Communications, Inc. v. Arizona
Corp. Comm’n, which held that the Commission’s rulemaking is not subject
to the Governor’s Regulatory Review Council but is subject to attorney
general review under § 41-1044(A). 197 Ariz. 16, 22–23, ¶ 26 (App. 1999)
(“Rules are invalid if not adopted and approved in accordance with the
procedure outlined by [§ 41-1044].”). That section is itself part of the APA,
so US West supports RUCO’s argument that the Commission is subject to
the APA. Next, the Commission cites State ex rel. Corbin v. Arizona
Corporation Commission, 143 Ariz. 219 (App. 1992), for the proposition that
the Commission’s procedural orders are not subject to the APA. But Corbin
also supports RUCO’s position because this court rejected

the Commission’s contention that its constitutional genesis
gives rise to the claimed complete procedural autonomy in
rate proceedings, free from legislative control or judicial
scrutiny and review. . . . [A]rt. 15, § 6 of the Arizona
Constitution authorizes the legislature to regulate the
procedural aspects of [the] Commission. . . . The legislature
has exercised this constitutionally delegated power . . . by
making Arizona’s administrative procedure act applicable to
commissions created by constitutional provisions.

Id. at 224–25. The Commission also cites a footnote in a dissent that
conflates an exemption to one article with an exemption to the entire
chapter. See Sw. Paint & Varnish Co. v. Ariz. Dep’t of Env’t Quality, 194 Ariz.
22, 29, ¶ 30 n.7 (1999) (McGregor, J., dissenting) (listing the Commission,
along with other agencies, as being exempt from the entire APA because
A.R.S. § 41-1092.02 exempts the Commission from the article describing the
Uniform Administrative Hearing Procedures).

¶22 We recognize the Commission is exempt from various
provisions of the APA, including Article 5, which creates the Governor’s
Regulatory Review Council. A.R.S. § 41-1057(A)(2) (“[T]his article does not

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apply to . . . [t]he corporation commission, which shall adopt substantially
similar rule review procedures.”). But exempting the Commission from
one article of the APA does not indicate the legislature intended to exempt
it from the APA broadly. Indeed, if the Commission was already exempt
from the APA, specific exemptions such as § 41-1057(A)(2) would be
meaningless.2 See Ariz. Dep’t of Revenue v. Action Marine, Inc., 218 Ariz. 141,
143, ¶ 10 (2008) (“We . . . avoid interpretations that render statutory
provisions meaningless, unnecessary, or duplicative.”).

¶23 Finally, the legislature knows how to exempt certain agencies
from various provisions of the APA when it deems such exemptions are
appropriate. See, e.g., A.R.S. § 41-1005(D) (exempting the Arizona Board of
Regents and the institutions under its jurisdiction from articles 2–5 of the
APA); § 41-1009(N)(4) (exempting the Commission from certain inspection
and audit requirements when issuing certificates of convenience and
necessity). But the legislature has not granted the Commission an
exemption from the entire APA. Contrary to the superior court’s decision,
the Commission is subject to the declaratory relief the legislature
authorized under § 41-1034, which provides a specific remedy for any
person to seek a judicial declaration whether an agency’s substantive policy
statement should have been adopted as a rule.

B. Timeliness

¶24 The superior court also reasoned that dismissal of RUCO’s
complaint was appropriate based on untimeliness, citing § 40-254’s
requirement that “any party in interest . . . [who is] dissatisfied with an
order or decision of the [C]ommission” may file a complaint “within thirty
days after a rehearing is denied or granted, and not afterwards.” RUCO
asserts its complaint was timely under § 41-1034 because it falls within the
one-year limitation for a claim against a public entity under A.R.S. § 12-821.
The Commission argues timeliness is governed instead by § 40-254.01(A),
which mandates that “any party to a proceeding before the [C]ommission”
must file a notice of appeal in the court of appeals within 30 days after
rehearing is denied or granted. A.R.S. § 40-254.01(A) (emphasis added).
But the Commission ignores the plain language of the APA, which directs
any declaratory judgment action to be brought “in the superior court in

2 The parties dispute the applicability of this court’s opinion in
Republican National Committee v. Fontes, __ Ariz. __, 566 P.3d 984 (App. 2025),
addressing whether promulgation of the Election Procedures Manual is
subject to the APA. However, our supreme court vacated the opinion
through an order filed Oct. 16, 2025.
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Maricopa county.” A.R.S. § 41-1034(B) (emphasis added). A person
seeking a declaratory judgment under § 41-1034 cannot possibly comply
with both statutes.

¶25 According to APS, however, RUCO’s complaint was untimely
because the Commission issued a decision denying RUCO’s application for
rehearing on February 19, and thus an action to challenge that decision was
due at the latest by March 21. See A.R.S. § 40-254(A) (requiring the
challenging action to begin within 30 days of the denial or grant of a
rehearing “and not afterwards”). Applying that requirement, the superior
court found that RUCO’s complaint was untimely because it was filed on
March 28. For several reasons, we disagree.

¶26 First, § 40-254 describes how a “party in interest” may seek
review of a Commission action, but RUCO was not a party in interest.
RUCO tried to intervene in the Docket according to the process outlined in
the Arizona Administrative Code, which explains the rules of practice and
procedure before the Commission. A.A.C. R14-3-105(A), (B). But the
Commission rejected RUCO’s effort to intervene, explaining that generic
and rulemaking dockets do not have parties. And even though RUCO
attended the open meetings and provided testimony and comments about
formula rates, such an appearance does not make RUCO a party. See A.A.C.
R14-3-105(C) (“[A]ny consumer . . . may appear at any proceeding and
make a statement on his own behalf . . . [but a] person so appearing shall
not be deemed a party to the proceedings.”). Thus, neither RUCO nor
Thaler was a party in interest to the Commission proceeding and could not
challenge the Decision under § 40-254.

¶27 Nonetheless, APS argues RUCO’s claim is barred for failure
to comply with § 40-254, regardless of whether the APA applies. This
argument fails because APS does not explain how a party can possibly
challenge an order covered by § 40-254 when the Commission uses a
generic docket, thereby precluding intervention by those seeking to
formally participate in the proceeding.

¶28 Second, § 40-254 states that the “action shall be tried and
determined as other civil actions except as provided in this section,” and
the party in interest must “show by clear and satisfactory evidence that [the
Commission’s order or decision] is unreasonable or unlawful.” A.R.S.
§ 40-254(A), (E). That burden is higher than the burden required in most
other civil matters. See Tucson Elec. Power Co. v. Ariz. Corp. Comm’n, 132
Ariz. 240, 243 (1982) (“Clear and satisfactory is the same as clear and
convincing and is a standard of proof greater than by a preponderance of

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the evidence.” (citation modified)). APS’s position would hold RUCO to a
higher standard of proof and thereby undermine the legislature’s choice to
authorize declaratory relief under the APA to any person who desires to
challenge a substantive policy statement.

¶29 Third, accepting the superior court’s reasoning would
deprive § 41-1034 of any meaning as applied to the Commission. See Mussi
v. Hobbs, 255 Ariz. 395, 401, ¶ 30 (2023) (“[W]e interpret statutory language
in view of the entire text, considering the context and related statutes on the
same subject.” (quoting Molera v. Hobbs, 250 Ariz. 13, 24, ¶ 34 (2020)); Burns
v. Ariz. Pub. Serv. Co., 254 Ariz. 24, 30, ¶ 23 (2022) (“We seek to give effect
to every word, so as to render superfluous none of text. We also read the
provision at issue in its broader context.” (citation omitted)).

¶30 APS, but not the Commission, urges us to apply § 40-254(F),
which states that “no court of this state shall have jurisdiction to enjoin,
restrain, suspend, delay or review any order or decision of the commission”
except in accordance with the other subsections of that section. The
superior court agreed, holding it lacked jurisdiction to grant the requested
relief. But § 40-254, including subsection (F), must be interpreted in context
with the legislature’s enactment of § 41-1034.

¶31 Accepting APS’s position would require us to presume that
the legislature, in adopting § 41-1034, intended that any person desiring to
pursue such relief—as it relates to the Commission—(1) would need to
apply for a rehearing, even though the person may not be a party; (2) would
then have to file an action in superior court within 30 days after denial of
the application for rehearing, seeking to “vacate, set aside, affirm in part, or
remand with instructions” the order or decision; (3) would have to meet a
higher burden of proof than what is required under § 41-1034; and (4)
would need to show the order or decision is either “unreasonable” or
“unlawful” instead of the much narrower legal question contemplated
under § 41-1034: whether a substantive policy statement constitutes a rule.
See A.R.S. §§ 40-253(A), -254(A),(E). Thus, APS essentially asks us to rewrite
§ 41-1034’s unambiguous language to make it fit the requirements of
§§ 40-253 and -254, which we cannot do. In re McLauchlan, 252 Ariz. 324,
326, ¶ 15 (2022) (“Absent the essential predicate of ambiguity, we cannot
rewrite a statute based on the surmise that the legislature meant to draft it
a different way.”).

¶32 Also, the legislature adopted the current versions of
§§ 40-254 and -254.01 in 1991 but added § 41-1034(B) in 2000. See 1991 Ariz.
Sess. Laws, ch. 247, §§ 1–2 (1st Reg. Sess.) (H.B. 2410); 2000 Ariz. Sess. Laws,

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ch. 374, § 3 (2nd Reg. Sess.) (S.B. 1418). Thus, the APA’s provision
authorizing declaratory relief is a specific, later-adopted statute. See Est. of
Winn v. Plaza Healthcare, Inc., 214 Ariz. 149, 152, ¶ 16 (2007) (describing the
rule of statutory construction that a more recent, specific statute will govern
over a conflicting older, more general statute); State v. Jones, 235 Ariz. 501,
503, ¶¶ 8, 11 (2014) (holding that when two statutes conflict, the more
recent, specific statute governs over the older, more general statute).

¶33 Because we reject the superior court’s conclusion that the
Commission is exempt from the entire APA, RUCO had the right to pursue
declaratory relief as provided by the APA:

Any person who is or may be affected by . . . [a] substantive
policy statement that the person alleges to constitute a rule
may obtain a judicial declaration on whether the . . .
substantive policy statement constitutes a rule by filing an
action for declaratory relief in the superior court in Maricopa
county.

A.R.S. § 41-1034(B). This specific remedy is also highlighted in the APA’s
regulatory bill of rights, which explains that “[t]o ensure fair and open
regulation by state agencies, a person . . . [m]ay allege that [a] . . . substantive
policy statement constitutes a rule and have that . . . substantive policy
statement declared void because [it] constitutes a rule as provided in
§ 41-1033.” A.R.S. § 41-1001.01(A)(10). Nor can we ignore the plain
legislative distinction as to who may seek relief under the statutes at issue
here. Compare A.R.S. § 40-254(A) (providing judicial review to a “party in
interest”) with A.R.S. § 41-1034(B) (offering declaratory relief to “[a]ny
person who is or may be affected by a rule”).

¶34 Moreover, the APA “creates . . . procedural rights . . . in
addition to those created . . . by other statutes,” and if “any other statute
would diminish a right created or duty imposed by this chapter, the other
statute is superseded by this chapter, unless the other statute expressly
provides otherwise.” A.R.S. § 41-1002(B). The APA authorizes “any person
who is or may be affected by” a substantive policy statement to seek
declaratory relief. A.R.S. § 41-1034(B). Thus, this right to declaratory
judgment supersedes other statutes that may narrow or diminish a right,
including A.R.S. § 40-254(F). For these reasons, we conclude that RUCO’s
action for declaratory relief under § 41-1034(B) was timely filed within one
year under § 12-821.

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 RUCO/THALER v. ACC, et al.
Opinion of the Court

¶35 In sum, § 41-1034(B) authorizes judicial review under the
circumstances presented in this litigation. Both RUCO and Thaler are
“persons” who allege the Decision constitutes a rule. They further allege
the Commission adopted the purported rule disguised as a substantive
policy statement without the procedural protections provided by the APA
for rulemaking. The Commission filed the draft policy statement on
November 20, 2023, and voted to adopt it on December 3, 2023, but that
timeline does not comply with the required 30-day window for public
comment on proposed rulemaking. A.R.S. §§ 41-1001.01(A)(6)(a), -1022(A),
(D), -1023(B). As explained above, neither RUCO nor Thaler could properly
file a § 41-1034(B) challenge under § 40-254 or § 40-254.01. Instead, the only
avenue petitioners have to exercise their statutory right to obtain a judicial
determination on whether the Decision constitutes a substantive policy
statement or a rule is under § 41-1034(B). Because they were denied that
opportunity, the superior court erred in dismissing their complaint.

C. Attorneys’ Fees and Costs

¶36 Thaler requests an award of reasonable attorneys’ fees under
A.R.S. § 12-348(A)(4), which mandates an award of fees and other expenses
to “any party . . . that prevails by an adjudication on the merits” in a “special
action proceeding brought by the party to challenge an action by this state.”
We deny Thaler’s request without prejudice, deferring to the superior court
to decide whether to award fees incurred in this special action after a
resolution on the merits. See Yauck v. W. Town Bank & Tr., __ Ariz. __, __,
¶ 46, 568 P.3d 386, 397 (App. 2025). As a successful party in this special
action, we award Thaler taxable costs upon compliance with Arizona Rule
of Procedure for Special Actions 17(c).

CONCLUSION

¶37 We accept jurisdiction and grant relief by vacating the
superior court’s order that dismissed RUCO’s complaint. We express no
opinion whether the Decision is a substantive policy statement or a rule.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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