David B Smith v. Clean elections/hon Terry Goddard

SUPREME COURT OF ARIZONA
En Banc

DAVID BURNELL SMITH, a citizen ) Arizona Supreme Court
and resident of the State of ) No. CV-06-0021-PR/A
Arizona, )
) Court of Appeals
Petitioner/Appellant, ) Division One
) No. 1 CA-SA 05-0292A
v. )
) Maricopa County
ARIZONA CITIZENS CLEAN ELECTIONS ) Superior Court
COMMISSION, an agency of the ) No. CV 2005-093310
State of Arizona; STATE OF )
ARIZONA, a State of the United )
States of America; STATE OF ) O P I N I O N
ARIZONA ex rel. TERRY GODDARD, )
ARIZONA ATTORNEY GENERAL, )
)
Real Parties in Interest )
/Appellees. )
__________________________________)

Appeal from the Superior Court in Maricopa County
Honorable Mark F. Aceto, Judge
AFFIRMED

Court of Appeals, Division One
Memorandum Decision (filed Jan. 19, 2006)
AFFIRMED
________________________________________________________________

CHARLES M. BREWER, LTD. Phoenix
By David L. Abney
Attorneys for David Burnell Smith

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Diana L. Varela, Assistant Attorney General
Jessica Gifford Funkhouser, Special Counsel
Attorneys for Arizona Citizens Clean Elections Commission,
State of Arizona, Terry Goddard, Arizona Attorney General
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 In 2004, David Burnell Smith was elected to serve in
the Arizona State Legislature as a Representative from District

7. He chose to run as a publicly funded candidate. In return

for the receipt of public funds, he and the other participating

candidates each signed a form promising to adhere to the

provisions of the Citizens Clean Elections Act, Ariz. Rev. Stat.

(“A.R.S.”) §§ 16-940 to -961 (Supp. 2005), and to the campaign

finance rules promulgated by the Arizona Clean Elections

Commission. See Ariz. Admin. Code (“A.A.C.”) R2-20-215 to -228.

The Citizens Clean Elections Act provides sanctions for

violations of the campaign finance laws, including fines,

criminal sanctions, and, for serious cases, removal from office.

A.R.S. § 16-942.

¶2 Following an investigation of Smith’s campaign

expenditures, the Commission determined that Smith violated

campaign finance rules by spending approximately seventeen

percent more on his election than is permitted by law. See

§ 16-942(C). For that violation, the Commission decided that

Smith should forfeit his office. This is Smith’s final review

of several determinations — at the administrative level, on

review by the superior court, and following a decision by the

court of appeals — all affirming the Commission’s determination

that Smith violated campaign finance laws and must leave office

or concluding that Smith did not timely appeal the Commission’s

decision.

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¶3 On January 26, 2006, this court issued an order

denying Smith’s request for a stay of proceedings, granting his

petition for review, and affirming the judgment of the superior

court. This opinion explains our reasoning. We have

jurisdiction over this case pursuant to A.R.S. § 12-120.24

(2005) and Article 6, Section 5(3) of the Arizona Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶4 The factual and procedural background of this case is

lengthy. Rather than set it forth in detail here, matters will

be set forth as necessary to the resolution of each claim.

II. DISCUSSION

A. Constitutional Privilege

¶5 Smith raises a preliminary matter that, if resolved in

his favor, would obviate the need to address any other issue.

Accordingly, we address it first. Smith claims that this

litigation cannot proceed because, as a state legislator, he

enjoys a constitutional immunity to civil process during, and

for fifteen days preceding, the legislative session. This

privilege is set forth in Article 4, Part 2, Section 6 of the

Arizona Constitution, which provides as follows:

Members of the Legislature shall . . . not be subject
to any civil process during the session of the
Legislature, nor for fifteen days next before the
commencement of each session.

¶6 We construe constitutional provisions in light of the

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purpose of the enactment and the “evil sought to be remedied.”

Ruth v. Indus. Comm’n, 107 Ariz. 572, 575, 490 P.2d 828, 831

(1971). Although there is little history surrounding the

passage of Article 4, Part 2, Section 6,1 this court has noted

that a similar provision in the Federal Constitution was

designed to avert an arrest, either criminal or civil, that

would prevent a legislator from attending session. See Yuma

Greyhound Park, Inc. v. Hardy (Steiger), 106 Ariz. 178, 179, 472

P.2d 47, 48 (1970) (citing Long v. Ansell, 293 U.S. 76 (1934),

discussing Article 1, § 6 of the United States Constitution);

accord State v. Beno, 341 N.W.2d 668, 676 (Wis. 1984) (noting

that the Wisconsin privilege, worded almost identically to

Arizona’s, is designed to ensure a legislator’s availability to

represent his constituents). The federal privilege provision

has been described as extending to “a subpoena ad respondendum,

aut testificandum, or a summons to serve on a jury” because such

seizures of the person would preclude a representative from

doing his public duty. Joseph Story, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES § 857 (1833).

¶7 That rationale does not pertain here. Smith is not

defending a suit brought by another. Instead, Smith has invoked

1
See John S. Goff, THE RECORDS OF THE ARIZONA CONSTITUTIONAL
CONVENTION OF 1910, 902 (1991) (noting simply that the provision
was read, but reflecting no comments on it).

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the jurisdiction of the courts. On January 24, 2006, for

example, Smith filed a petition for review urging this court to

accept jurisdiction and reverse the court of appeals’ memorandum

decision, which affirmed the superior court’s judgment that

Smith should forfeit his seat in the legislature. Had Smith not

invoked the jurisdiction of the courts, the Clean Elections

Commission’s removal order would have become final on September

8, 2005,2 and Smith’s removal from office would have occurred

more than fifteen days before the legislative session began.

¶8 A legislator may not seek the court’s intercession

solely for the purpose of keeping alive a case that would remove

him from office, then claim immunity from participating in the

very case he has brought. Having participated in the case

before the Commission during his last legislative term and lost,

and then having instituted suit and appeals in an attempt to

overturn the administrative result, Smith cannot claim

legislative immunity.

B. The Stay Request

¶9 Smith requested that this court stay the effect of the

court of appeals’ order finding that he had not properly

appealed his case. See ARCAP 7(c) (authorizing court to enter a

stay to preserve the status quo pending review of a case).

2
The Commission’s order was dated August 25, 2005. As will
be discussed, Smith had fourteen days from that date to appeal.
See infra ¶¶ 22-26.

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While this court has not had occasion to set forth the

analytical framework for evaluating requests for stays in the

appellate context, Arizona courts have applied to such stay

requests the traditional criteria for the issuance of

preliminary injunctions, see Shoen v. Shoen, 167 Ariz. 58, 63,

804 P.2d 787, 792 (App. 1991) (preliminary injunction

standards); Burton v. Celentano, 134 Ariz. 594, 595, 658 P.2d

247, 248 (App. 1982) (same), as did the appellate court and the

parties in this case. We find the construct useful and

therefore adopt it.

¶10 A party seeking a stay on appeal must thus establish

the following elements:

1. a strong likelihood of success on the merits;
2. irreparable harm if the stay is not granted;
3. that the harm to the requesting party outweighs
the harm to the party opposing the stay; and
4. that public policy favors the granting of the
stay.

See Shoen, 167 Ariz. at 63, 804 P.2d at 792; Burton, 134 Ariz.

at 595, 658 P.2d at 248. The scale is not absolute, but

sliding. Nor should the result turn on counting the factors

that weigh on each side of the balance. Rather, “the moving

party may establish either 1) probable success on the merits and

the possibility of irreparable injury; or 2) the presence of

serious questions and [that] ‘the balance of hardships tip[s]

sharply’” in favor of the moving party. Shoen, 167 Ariz. at 63,

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804 P.2d at 792 (quoting Justice v. Nat’l Collegiate Athletic

Ass’n, 577 F. Supp. 356, 363 (D. Ariz. 1983)). The greater and

less reparable the harm, the less the showing of a strong

likelihood of success on the merits need be. Conversely, if the

likelihood of success on the merits is weak, the showing of

irreparable harm must be stronger.

¶11 We applied these criteria to Smith’s request for a

stay. Because we concluded, for the reasons set forth below,

that Smith would not succeed on his claims and that the judgment

of the superior court should be affirmed, we denied his stay

request.

C. The Merits

1. Removal only by impeachment or recall

¶12 Smith’s primary claim is that he can be removed from

office only by “impeachment or recall” and then only for the

reasons set forth in the constitution. He bases his claim on

Article 8, Part 2, Section 1 of the Arizona Constitution, which

provides that, on vote of two-thirds of the members of the

Senate, a state officer may be removed from office for “high

crimes, misdemeanors, or malfeasance in office.”

¶13 The argument that a state officer may be removed from

office only as prescribed in the constitution was squarely

raised and rejected in State ex rel. DeConcini v. Sullivan, 66

Ariz. 348, 355, 188 P.2d 592, 596 (1948). In Sullivan, this

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court observed that while the constitution may limit legislative

powers, unless a power is expressly or by implication precluded,

the legislature retains power to act. Id. at 356-57, 188 P.2d

at 597. The court concluded that Article 8, Part 2 does not

limit the power of the legislature to devise additional methods

of and causes for removal and therefore does not provide the

exclusive means of removal from public office. Id. at 357, 188

P.2d at 598; cf. A.R.S. § 1-253(B) (2002) (permitting

“impeachment, removal, deposition or suspension” from office for

certain offenses, even if the offense does not specify removal

from office as a potential penalty). If, as Smith contends, the

constitutional means were exclusive, the legislature would be

unable to enact laws allowing removal of one who had become

mentally incompetent or physically unable to hold office. As

this court noted in Sullivan, that constitutional provision was

intended to protect the public by making it easier to remove

public officers, not to protect malfeasing public servants. 66

Ariz. at 358-59, 188 P.2d at 599.

¶14 In this case, the public, acting in its legislative

capacity, authorized removal from public office as a sanction

for serious violations of the campaign finance laws. See A.R.S.

§ 16-942(C). Smith agreed to abide by those terms when he

sought to finance his campaign with public funds. A.R.S. § 16-

947(A), (B) (requiring participating candidates to file an

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affidavit with the Secretary of State’s Office pledging

adherence to campaign finance laws). His removal was not

precluded by any provision of the Arizona Constitution.

¶15 Smith counters that Holmes v. Osborn, 57 Ariz. 522,

115 P.2d 775 (1941), “held” that impeachment and recall are the

sole means of removing elected officials from office. The

language on which he relies from that case, however, is dictum,

as that case dealt with the legislature’s unquestioned power to

provide the means for removal of members of the Industrial

Commission. Id. at 537, 115 P.2d at 782. Moreover, the records

of the Arizona Constitutional Convention suggest that the

drafters of our constitution anticipated that the legislature

could devise other grounds for removal. See John S. Goff,

RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1910, 921-22 (1991)

(noting that “there is no need to make a provision in the

constitution” for removal of elected officials and executive

appointees because “the legislature will have the power to do

that without authorization in the constitution”). Impeachment

is therefore not the sole means of removal for elected

officials, nor are the reasons for removal limited to those

listed in Article 8, Part 2, Section 2 of the Arizona

Constitution.

¶16 Smith’s claim that he cannot be removed except by

impeachment or recall fails.

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2. Failure to timely appeal

a. Background

¶17 The superior court held, and the court of appeals

agreed, that Smith failed to timely appeal the Commission’s

decision that he had overspent his campaign limits and therefore

must forfeit his office. We agree that Smith failed to timely

appeal.

¶18 Determining the procedure for review of administrative

decisions involves the interpretation of rules and statutes,

which we review de novo. Pima County v. Pima County Law

Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119

P.3d 1027, 1030 (2005). We apply the same rules in construing

both statutes and rules. State ex rel. Romley v. Martin, 205

Ariz. 279, 281, ¶ 6, 69 P.3d 1000, 1002 (2003). To determine

whether Smith’s appeal was timely, some procedural background is

necessary.

¶19 On March 25, 2005, following its investigation of

Smith’s campaign spending, the Citizens Clean Elections

Commission issued an Order and Notice of Appealable Agency

Action. That preliminary order concluded that Smith had

violated the Clean Elections Act and must forfeit his seat in

the legislature. The order would have been final had Smith

elected to take no further action in the case. But the order

advised Smith that he could appeal “pursuant to the

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Administrative Procedures Act,” A.R.S. §§ 41-1092 to -1092.12

(2004 & Supp. 2005), within thirty days, and Smith pursued this

avenue of redress by requesting a hearing before an

administrative law judge (“ALJ”).

¶20 On August 22, 2005, following a two-day hearing, the

ALJ issued a lengthy decision concluding that the Commission had

carried its burden of proving its case and recommending to the

Commission that Smith’s appeal be denied. The Commission

adopted that recommendation three days later, on August 25,

2005, incorporating in its Final Order the ALJ’s detailed

findings of fact and conclusions of law and issuing sanctions of

repayment of public funds, a fine, and forfeiture of office.

¶21 Smith sought review of the August 25 order in two

ways: First, he filed a Motion for Rehearing or Review on

September 23, 2005; that motion was denied on October 4.

Second, on September 26, 2005, he filed a complaint for judicial

review in superior court.

b. Waiver of fourteen-day rule

¶22 The statute providing for judicial review of Citizens

Clean Election Commission rulings, A.R.S. § 16-957(B), provides

that “[t]he violator has fourteen days from the date of issuance

of the order assessing the penalty to appeal to the superior

court.” Smith’s appeal, filed September 26, was filed more than

fourteen days after the Commission’s August 25 order assessing

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the penalty of removal from office. Smith, however, argues that

for several reasons his appeal was nonetheless timely.

¶23 Smith first argues that the Commission’s March 25

order waived the jurisdictional appeal time set forth in A.R.S.

§ 16-957(B) and “gave Representative Smith extended appellate

deadlines” that became applicable five months later, on August

25, after the Commission’s ruling became final. His claim is

not clear, but he appears to contend that permitting him to

pursue redress through the administrative process rather than

requiring him to appeal the March 25 preliminary order

immediately to superior court precludes the Commission and the

courts from demanding timely adherence to the fourteen-day time

limit imposed by A.R.S. § 16-957(B) following the final

administrative determination. This argument misapprehends the

administrative review structure and misconstrues the record.

¶24 The administrative rules that supplement the statutory

processes for obtaining review of administrative actions by the

Clean Elections Commission, A.A.C. R2-20-214 to -231, provide

any person who has been administratively sanctioned the due

process right to challenge the decision within the

administrative structure, pursuant to the Administrative

Procedures Act (“APA”), A.R.S. §§ 41-1092 to -1092.12. The

March 25 order notified Smith of this right, after which Smith

requested and was afforded this process. The Commission’s March

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25 notice to Smith that he could file an administrative appeal

did not nullify the fourteen-day time limit for seeking judicial

review once the administrative hearing process had resulted in a

final administrative order. Rather, the order simply stayed the

effectiveness of the Commission’s order while Smith exhausted

the available administrative process.

¶25 It is well settled that the time for filing an appeal,

whether by appeal or by complaint for judicial review following

the conclusion of the administrative process, is jurisdictional.

See Ariz. Comm’n of Agric. & Horticulture v. Jones, 91 Ariz.

183, 187, 370 P.2d 665, 668 (1962); Ariz. Dep’t of Econ. Sec. v.

Holland, 120 Ariz. 371, 372, 586 P.2d 216, 217 (App. 1978). The

Commission has no power to waive it because the failure to

timely appeal “deprive[s] th[e] court of jurisdiction to review

the [administrative] decision.” Holland, 120 Ariz. at 372, 586

P.2d at 217; see also Jones, 91 Ariz. at 188, 370 P.2d at 669.

¶26 Smith points to no language in the Commission’s March

25 order purporting to excuse the time limits of A.R.S. § 16-

957(B), and we find none. The order advises Smith only that he

has the right to administratively appeal the preliminary

determination that he has violated campaign finance rules by

invoking the procedures set forth in the Administrative

Procedures Act. It confirmed the procedure that existed as a

matter of law. The Commission did not waive the provisions of

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A.R.S. § 16-957(B) by any language in the March 25, 2005 order.3

c. Premature appeal

¶27 Smith claims that the Complaint for Judicial Review he

filed in superior court on September 26 should be considered a

“premature” appeal that sprang to life after the Commission

subsequently issued its October 4 order denying Smith’s Motion

for Rehearing or Review. He maintains that the appeal was

timely because, while it was filed eight days before the ruling

appealed from, it nonetheless came “within” fourteen days of the

Commission’s issuance of the order assessing the penalty.

¶28 On August 25, 2005, the Clean Elections Commission

adopted the ALJ’s decision and recommendation and entered the

Commission’s “Final Order,” which assessed penalties requiring

repayment of $34,625.09 to the Clean Elections Fund, imposing a

civil penalty of $10,000, and requiring Smith to forfeit his

public office.

¶29 Smith had the right to seek judicial review of that

decision pursuant to the Judicial Review of Administrative

Decisions Act (“JRADA”), A.R.S. §§ 12-901 to -914 (2003), which

3
Smith seems to confuse the right to administrative appeal
within the administrative process pursuant to the APA, found in
Title 41, with judicial review of the ultimate administrative
order pursuant to the Judicial Review of Administrative
Decisions Act (“JRADA,” sometimes formerly called the
Administrative Review Act), found in Title 12. A statement
regarding Smith’s rights under the APA did not affect later-
attaching rights under the JRADA.

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allows thirty-five days to file an appeal. A.R.S. § 12-904(A).

The provisions of the JRADA do not apply, however, if a more

definite procedure is set forth in “the act creating or

conferring power on an agency or a separate act.” A.R.S. § 12-

902(A)(1). If more definite provisions exist, those more

specific provisions control. Id.; see also Ariz. State Tax

Comm’n v. Phelps Dodge Corp., 116 Ariz. 175, 177, 568 P.2d 1073,

1075 (1977) (observing that specific statutes displace general

statutes). In this case, the Clean Elections Act itself

contains a definite term for appeals: A.R.S. § 16-957(B)

requires that appeals be taken no later than “fourteen days from

the date of issuance of the order assessing the penalty.” The

time to appeal is jurisdictional; any appeal not filed within

the stated period is barred. A.R.S. § 12-902(B).

¶30 The penalty-assessing order in this case was issued on

August 25, 2005. Smith’s appeal should therefore have been

filed on or before September 8. Smith filed nothing between

August 25 and September 8.

¶31 On September 23, however, Smith filed a Motion for

Rehearing or Review. He did so pursuant to an invitation in the

last paragraph of the Commission’s August 25 “Final Order,”

which contains the following directions to the aggrieved party:

Pursuant to A.R.S. § 41-1092.09, any party that is
aggrieved by this Order may file with the Commission,
not later than thirty (30) days after service of this

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decision, a written motion for rehearing or review
. . . . In the alternative, any party may file an
action for judicial review in the Superior Court of
Arizona, pursuant to A.R.S. § 16-957(B) and A.A.C. R2-
20-228.

Under the JRADA, a motion for rehearing tolls the time to

appeal. See A.R.S. § 12-901(2) (providing that no

administrative order is final until any motion for rehearing or

review has been decided). Smith therefore claims that his time

to appeal was extended until the disposition of the rehearing

motion.

¶32 Smith’s argument fails because A.R.S. § 16-957(B)

expressly requires that an appeal must be taken no later than

“fourteen days from the date of issuance of the order assessing

the penalty.” In this case, the penalty-assessing order was

issued on August 25, 2005, and Smith did not file an action

within fourteen days of that date. Moreover, when that time

expired, Smith had not yet filed his motion for rehearing or

review. His time to appeal therefore lapsed.

¶33 Even if section 12-901(2) applied, however, and would

have extended the time to appeal if a timely motion for

rehearing had been filed, Smith’s motion for rehearing was filed

too late to extend the time to appeal. Because the JRADA time

provisions do not control when an administrative agency’s

statute provides a definite appeal time, it follows that the

Citizens Clean Elections Act’s fourteen-day appeal provision for

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seeking judicial review cannot be extended by a rehearing motion

filed after the fourteen days have expired. The Commission may,

by its August 25 order, have bound itself to consider Smith’s

rehearing motion, but it could not have conferred jurisdiction

on the superior court to consider an untimely appeal.

¶34 We recognize that Smith might have been misled by the

language in the Commission’s August 25 Final Order regarding the

filing of a motion for rehearing or review. But even assuming

that he was misled by the August 25 order to believe that a

motion for rehearing or review filed after the appeal time has

run can stay the effect of an otherwise final order, the fact

remains that even after the Commission denied the motion on

October 4, 2005, Smith took no action in the fourteen days

following that date to appeal his case. The record reflects

that Smith did nothing until he amended his September 26

complaint on October 28, twenty-four days after the latest

possible appealable order. Thus his appeal time expired.

¶35 If, on the other hand, the August 25 order is viewed

as the final “order assessing a civil penalty,” Smith filed his

September 26 complaint thirty-one days after the August 25 order

and his amended complaint, dated October 28, 2005, more than two

months after the August 25 order. Under any state of the facts,

Smith failed to timely appeal the Commission’s order, and it

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became final.4 This court is not free to ignore the clear

statutory language of A.R.S. § 16-957(B) and create jurisdiction

in the superior courts where the legislature has provided to the

contrary.

¶36 Smith seeks to avoid the consequences of the late

filing of his appeal by arguing that the September 26 complaint

was timely because it was “within” fourteen days of the October

4 order denying rehearing or review. Section 16-957(B),

however, does not require that a notice of appeal be filed

“within” a certain number of days of a ruling; it says that the

“violator has fourteen days from the date of issuance of the

order assessing the penalty to appeal.” Id. (emphasis added).

“From” means “after.” Until an order has been entered, there

can be no appeal. See A.R.S. § 12-909 (requiring complaint in

appeal from an administrative decision to contain a statement of

the findings and decision sought to be reviewed).

¶37 Smith asserts that Barassi v. Matison holds that an

appellate court may exercise jurisdiction over a premature

appeal if the appellant displayed an intent to appeal, appellees

4
For the reasons discussed supra ¶¶ 31-35, we encourage the
Commission to revise its form to avert any possible confusion in
future cases. In this case, because Smith did not file his
complaint within thirty days of any relevant order and would not
have prevailed in any event on his claim that he could be
removed only by impeachment or recall, see supra ¶¶ 12-16, he
suffered no prejudice from any confusion that might have been
engendered by language in the Commission’s order.

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were not prejudiced, and the appeal was only mistakenly filed

early. 130 Ariz. 418, 636 P.2d 1200 (1981). Barassi, however,

creates only a limited exception to the final judgment rule that

allows a notice of appeal to be filed after the trial court has

made its final decision, but before it has entered a formal

judgment, if no decision of the court could change and the only

remaining task is merely ministerial. Compare id. at 422, 636

P.2d at 1204 (notice filed after issuance of minute entry but

before entry of the order), and Comeau v. Ariz. State Bd. of

Dental Exam’rs, 196 Ariz. 102, 106, ¶ 16, 993 P.2d 1066, 1070

(App. 1999) (notice filed after court issued unsigned minute

entry, but before clerk entered the judgment), with Baumann v.

Tuton, 180 Ariz. 370, 372, 884 P.2d 256, 258 (App. 1994)

(holding that notice of appeal filed while a motion for a new

trial was pending in the trial court did not confer jurisdiction

on the appellate court).

¶38 Smith does not fall under the Barassi exception.

Before filing his complaint for judicial review, he had

requested that the Commission review his case or, in the

alternative, grant him a new hearing. These are substantive

matters requiring the discretion of the decision-maker. They

are not ministerial tasks. We noted in Barassi that appellate

courts should dismiss a case for lack of jurisdiction while such

a motion was still pending in the trial court. Barassi, 130

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Ariz. at 422, 636 P.2d at 1204.5 Smith’s reliance on Barassi is

thus unavailing.

¶39 Beyond this limited exception, Arizona courts have

consistently and with good reason held that premature notices of

appeal are ineffective because they disrupt court processes.

Baumann, 180 Ariz. at 372, 884 P.2d at 258. The better practice

is to give litigants “the opportunity to persuade the trial

court of its error so that the trial court’s ruling on a pending

motion may cure any error and obviate the necessity for an

appeal.” Id. (citation omitted); see also, e.g., Flagstaff

Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d

985, 990 (1978). Requiring timely notices of appeals following

entry of final judgments also prevents two courts from assuming

jurisdiction and acting at the same time. See Clifton Power

Corp. v. Fed. Energy Reg. Comm’n, 294 F.3d 108, 110 (D.C. Cir.

2002). Sound reasons thus support the rule that one may appeal

only from a final judgment.

¶40 In short, an appeal will lie only from a final

administrative order. Any person who fails to seek review

“within the time and in the manner provided in this

article . . . shall be barred from obtaining judicial review of

5
Because we conclude that Barassi does not apply to Smith’s
situation, we do not consider his arguments that he meets the
further requirements of Barassi that he displayed an intent to
appeal, that the Appellees were not prejudiced, and that the
notice of appeal was only mistakenly filed prematurely.

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the decision.” A.R.S. § 12-902(B) (emphasis added). In

concluding that Smith’s action was barred, the superior court

and court of appeals simply followed established law. Even

under the most charitable interpretation of the record, Smith’s

appeal was untimely.

3. Jury trial on quo warranto claim

¶41 Smith next claims that the Arizona Constitution

guarantees him the right to a jury trial on the Attorney

General’s request for a writ of quo warranto to remove him from

office. We review such legal questions de novo. See US West

Commc’ns, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244, ¶ 17,

34 P.3d 351, 353 (2001).

¶42 The Attorney General is authorized to bring a quo

warranto action to oust from office “any person who usurps,

intrudes into or unlawfully holds or exercises any public office

. . . within the state.” A.R.S. § 12-2041(A) (2003). On

October 20, 2005, sixteen days after the Commission denied

Smith’s request for a rehearing, after the time for filing a

complaint for judicial review of the Commission’s final

administrative decision had run, the Attorney General filed a

petition for a writ of quo warranto to have Smith removed from

his public office. At that time, the administrative review

process was final. The Commission’s findings of fact were

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conclusive, as was the Commission’s legal determination that

Smith must forfeit his office.

¶43 In response to the Attorney General’s complaint, Smith

asserted a right to a jury trial pursuant to Article 2, Section

23 of the Arizona Constitution, which guarantees that “[t]he

right of trial by jury shall remain inviolate.” This court

recently observed, however, that Arizona’s jury trial provision

merely preserves a right to jury trial if such a right existed

at common law; it does not create a right where none existed

before. See Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 8, 104

P.3d 147, 150 (2005). As the court of appeals correctly

concluded, that right has never extended to civil cases that

turn on uncontested facts. Smith v. Ariz. Citizens Clean

Elections Comm’n, 1-CA-SA 05-0292A, slip op. ¶¶ 65, 67-68 (Ariz.

App. Jan. 19, 2006) (mem. decision); see also K.B. v. State Farm

Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App.

1997) (stating that the rules of civil procedure do not require

jury trial if no facts are in dispute).

¶44 In this case, we must resolve only whether Smith

timely appealed, a matter controlled by law. See A.R.S. § 16-

957(B). As a matter of law, when the deadline passed without

Smith having filed a timely complaint for judicial review, he

lost his right to appeal. See State v. Dawson, 164 Ariz. 278,

280, 792 P.2d 741, 743 (1990). Because no fact question arises

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from these circumstances, there is no right to a jury trial.

See Preston v. Denkins, 94 Ariz. 214, 221, 382 P.2d 686, 690

(1963). While contested facts might arise if we were

determining whether Smith overspent, Smith’s failure to timely

appeal removes that question from the case.

¶45 Smith cites State ex rel. Bullard v. Jones, 15 Ariz.

215, 222, 137 P. 544, 547 (1914), in support of his quest for a

jury trial, incorrectly stating that this court held that one is

entitled to a jury trial in quo warranto proceedings. More

correctly, the court observed, in dictum, that “issues of fact

arising in quo warranto proceedings were triable by jury.” Id.

(emphasis added) (quoting II BAILEY ON HABEAS CORPUS § 328). That

statement is correct. But, as noted, there are no facts extant

here for a jury to decide.

¶46 Smith’s demand for a jury trial therefore fails.

4. Declaratory judgment action as an independent
lawsuit

¶47 Smith next claims that his September 26 complaint

should stand on its own as a self-sufficient lawsuit raising

constitutional challenges to the Citizens Clean Elections Act

that are independent of his challenges to the Commission’s

rulings against him. These claims, he asserts, are not subject

to the fourteen-day time limit imposed by A.R.S. § 16-957(B).

¶48 To the contrary, a party may not use a complaint for

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declaratory relief as a substitute for a timely complaint for

judicial review of an administrative order. Smith was required

to raise all of his challenges to the Commission’s actions and

his related constitutional claims in a timely complaint for

judicial review under the JRADA. See Hurst v. Bisbee Unified

Sch. Dist. No. Two, 125 Ariz. 72, 75, 607 P.2d 391, 397 (App.

1979) (stating that constitutional challenges to an

administrative act must be raised through appeal of the final

agency decision); see also Thielking v. Kirschner, 176 Ariz.

154, 156, 859 P.2d 777, 779 (App. 1993) (noting that “[a] party

. . . cannot substitute a declaratory relief action for a timely

appeal” of an administrative decision).

¶49 The reasons for requiring challenges to administrative

actions to be raised in appeals from agency decisions rather

than in separate declaratory judgment actions parallel those for

requiring notices of appeals to be timely filed following an

agency’s final decision: cases should proceed in only one forum

at a time, and administrative decisions should become final on

an identifiable date. If independent collateral challenges to

the constitutionality of the underlying statutes were allowed,

agency decisions would not be final until the time for filing

declaratory judgment actions has run. Id. The appropriate

method for raising such claims is a timely complaint for

judicial relief filed pursuant to the JRADA.

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¶50 Smith’s untimely complaint therefore does not survive

as an independent lawsuit on the merits of this claim or any

other of his substantive claims.

III. CONCLUSION

¶51 The issues Smith has raised are not novel nor, in the

circumstances of this case, is Smith shielded by legislative

immunity. The record shows that Smith was afforded all

appropriate process in the administrative proceedings, and he

simply failed to timely pursue review of the Commission’s Final

Order.

¶52 We therefore grant the Petition for Review, but deny

relief. We affirm the judgment of the superior court and the

memorandum decision of the court of appeals.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_____________________________________
Ruth V. McGregor, Chief Justice

______________________________________
Michael D. Ryan, Justice

______________________________________
Andrew D. Hurwitz, Justice

______________________________________
W. Scott Bales, Justice

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