Sаmuel RASH, a Single Man, Petitioner/Plaintiff/Appellant, v. TOWN OF MAMMOTH, Mammoth Police Department, and Pinal County Employee Merit System Commission, Respondents/Defendants/Appellees.
No. 2 CA-CV 2013-0062
Court of Appeals of Arizona, Division 2
Dec. 13, 2013
315 P.3d 1234
HOWARD, Chief Judge
ders. Forde‘s relationship with Bush supports a conclusion that they shared the same motive. The jury did not abuse its discretion by finding the (F)(8) aggravator.
4. A.R.S. § 13-751(F)(9)
¶ 154 Although Forde challenges the constitutionality of the (F)(9) aggravator as аpplied to her, see supra ¶¶ 109-10, she does not contest, and sufficient evidence shows, that Forde was an adult at the time of the murders, and Brisenia was under the age of fifteen. See
C. Propriety of Death Sentences
¶ 155 A death sentence is appropriate if the jury does not find “mitigating circumstances sufficiently substantial to call for leniency.”
¶ 156 The jury‘s Enmund/Tison findings show that Forde did not prove the initial two categories of mitigation. See
¶ 157 A reasonable juror could have concluded that the mitigation evidence was not sufficiently substantial to call for leniency. Because the jury properly found the existenсe of more than one aggravating circumstance for each murder, the jury did not abuse its discretion in finding that death sentences were appropriate.
D. Other Constitutional Claims
¶ 158 Forde lists seventeen other constitutional claims that she acknowledges this Court has previously rejected but that she seeks to preserve for federal review. We decline to revisit these claims.
CONCLUSION
¶ 159 We affirm Forde‘s convictions and sentences, but order that her sentences for armed robbery (count seven) and aggravated robbery (count eight) run concurrently.
Jackson Lewis LLP, By Justin S. Pierce and Victoria Torrilhon, Phoenix, Counsel for Respondents/Defendants/Appellees, Town of Mammoth and Mammoth Police Department.
Leonard & Felker, P.L.C., By Donna M. Aversa, Tucson, Counsel for Respondent/Defendant/Appellee, Pinal County Employee Merit System Commission.
Chief Judge HOWARD authored the opinion of the Court, in which Presiding Judge VÁSQUEZ and Judge MILLER concurred.
OPINION
HOWARD, Chief Judge.
¶ 1 In this appeal from a statutory special action, appellant Samuel Rash appeals the trial court‘s dismissal of his сlaims challenging his termination from the Town of Mammoth police force. On appeal, he argues the court erred by finding the time limits of the Arizona Rules of Civil Appellate Procedure applicable to statutory special actions and in
Factual and Procedural Background
¶ 2 The record supports the following procedural history. On March 22, 2011, the Town of Mammoth (“the Town“) terminated Rash‘s employment. Rash appealed that decision, which the Pinal County Employee Merit System Commission (“the Commission“) heard at the Town‘s request. After a hearing on Novembеr 29, 2011, the Commission voted to uphold his termination. Rash, however, did not receive a written decision from the Commission until March 31, 2012.1 On May 25, 2012, Rash filed a statutory special action pursuant to
¶ 3 The Town and the Commission moved to dismiss the special action as untimely and for failure to timely join an indispensable party.2 Finding applicable the thirty-day time limit of
Timeliness
¶ 4 Rash first argues the superior court erred by dismissing his statutory special action after finding the thirty-day time limit for bringing an appeal in
¶ 5 The superior court concluded that
¶ 6
¶ 7 Moreover, reading the Rules of Procedure for Special Actions as a whole, see Hornbeck, 217 Ariz. 581, ¶ 6, 177 P.3d at 325, the term “appellate court” as used in
¶ 8 The Arizona Rules of Civil Appellate Procedure provide additional support for this distinction. They define “appellate court” as “the Court of Appeals and the Supreme Court.”
¶ 9 Here, Rash filed his special action pursuant to
¶ 10 The Town argues that even if the rules do not apply, dismissal was appropriate under
¶ 11
¶ 12 The cases to which the Town cites as support for the opposite conclusion deal with Department of Public Safety (DPS) employee appeals, which fall under a different statutory scheme,3 were subject to a different procedural framework that implicated the Administrative Review Act, or did not address the issue of which statutory framework was proper. See Taylor v. Ariz. Law Enforcement Merit Sys. Council, 152 Ariz. 200, 202, 731 P.2d 95, 97 (App.1986) (DPS employee); Bishop v. Law Enforcement Merit Sys. Council, 119 Ariz. 417, 418, 581 P.2d 262, 263 (App.1978) (same); Ayala v. Hill, 136 Ariz. 88, 92, 664 P.2d 238, 242 (App.1983) (local rules made appeal by ARA applicable);4 Williams v. Pima County, 164 Ariz. 170, 172, 791 P.2d 1053, 1055 (App.1989) (considering appeal pursuant to ARA but not considering whether it was proper vеhicle for appeal). We apply the plain language of the statutes, decline to revisit our conclusion in Justice, and therefore conclude this statutory special action was not governed by the time limit imposed by
¶ 13 The Town and the Commission finally argue that even in the absence of a time limit in the rules or by statute, case law establishes that the “normal appеal period” still governs. Quoting Felix v. Superior Court, 92 Ariz. 247, 375 P.2d 730 (1962), they argue our supreme court held that “in the absence of a statutory time to file a petition for certiorari, the normal period granted to file an appeal will apply to bar the remedy of certiorari unless circumstances of extraordinary character justifying the delay are shown.” Id. at 250 n. 1, 375 P.2d at 732 n. 1. This statement was in a footnote and was preceded by the words: “Many jurisdictions have adopted the rule that....” Id. But our supreme court did not adopt this rule or apply it in that case, and it appears to have been provided merely for context. Id. at 249-50, 375 P.2d at 732. Instead, the court discussed and applied the doctrine of laches. Id. Thus, Felix does not support the Town‘s position.
¶ 14 They also argue that, in State v. Mahoney, 25 Ariz. App. 217, 542 P.2d 410 (1975), this court applied the rule Felix mentioned in a footnote and dismissed a special action where the state, as petitioner, “presented no reason or excuse for the delay in filing its special action petition” appealing the dismissal of a criminal prosecution. Id. at 219, 542 P.2d at 412. But Mahoney concerned the dismissal of a criminal prosecution and we limited our reasoning to that context. Id. And in any event, our rationale was based on an application of thе laches doctrine, which “would be the traditional equitable procedural time-bar to a petition seeking relief from” the non-appealable order at issue in that case. See State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 77, 796 P.2d 876, 879 (1990) (discussing Mahoney).
¶ 15 The Town and Commission also emphasize the portion of Rodriguez that states “[w]e decline to extend such an open-ended time limit to cases in which a right to appeal exists and is ignored by the party seeking extraordinary relief.” 165 Ariz. at 77, 796 P.2d at 879. But Rodriguez was issued when the jurisdiсtion of the court of appeals to hear special actions was limited to its appellate jurisdiction. See 1990 Ariz. Sess. Laws, ch. 395, § 2 (granting court of appeals “[j]urisdiction to hear and determine petitions for special actions... without regard to its appellate jurisdiction” several months after Rodriguez opinion). And in that case, the party seeking to challenge the order by special action had failed to exercise its right to appeal within the applicable twenty-day time limit. Rodriguez, 165 Ariz. at 75, 796 P.2d at 877. As already discussed above, Rash‘s appeal was not subject to a distinct time limit for appeal and therefore Rodriguez does not
¶ 16 Here, the statutory procedure for appealing the Commission‘s decision does not have a time limit, and thus there is no “nоrmal” time for bringing an appeal of this kind. See
Laches
¶ 17 Rash also argues the superior court erred in concluding the doctrine of laches barred his claim. He reasons that, absent a showing of unreasonable delay on his part and prejudice to the Town or the Commission, the laches doctrine could not bar his appeal. “We review a trial court‘s decision on laches for abuse of discretion.” McLaughlin v. Bennett, 225 Ariz. 351, ¶ 5, 238 P.3d 619, 621 (2010). The court abuses its discretion if no substantial evidence in the record supports the court‘s conclusion. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155 (App.2007). We defer to the court‘s factual findings unless clearly erroneous, but review de novo its legal conclusions. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 27, 181 P.3d 219, 229 (App.2008).
¶ 18 Where neither statute nor procedural rule establish a time limit for filing a special action, “only the equitable doctrine of laches... bar[s] an extraordinary remedy.” Rodriguez, 165 Ariz. at 77, 796 P.2d at 879. That doctrine “will generally bar a claim when the delay [in filing a lawsuit] is unreasonable and results in prejudice to the opposing party.” Sotomayor v. Burns, 199 Ariz. 81, ¶ 6, 13 P.3d 1198, 1200 (2000). We determine whether a delay is unreasonable by examining “the justification for delay, including the extent of plaintiff‘s advance knowledgе of the basis for challenge.” Harris v. Purcell, 193 Ariz. 409, ¶ 6, 973 P.2d 1166, 1169 (1998). The unreasonable delay must also cause prejudice to either the opposing party or the administration of justice, “which may be demonstrated by showing injury or a change in position as a result of the delay.” League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, ¶ 6, 201 P.3d 517, 519 (2009). The Town and the Commission, as the parties asserting the defense, had the burden of showing unreasonableness and prejudice. See Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992).
¶ 19 Hеre, the superior court‘s only finding on the issue of laches was that it served “as a separate and independent bar to this action, considering Petitioner Rash‘s six-month delay from the date on which he became aware of the Commission‘s decision on November 29, 2011, in light of the policy in favor of finality of decisions.” The court did not discuss whether the six-month delay was unreasonаble. And the Town introduced no evidence about the reasonableness of Rash‘s delay. We note that, although the Commission upheld Rash‘s termination on November 29, 2011, it did not state its reasoning at the hearing and it therefore would have been difficult for Rash to know the basis of his challenge before he received the written decision on March 31, 2012. See Harris, 193 Ariz. at 409, ¶ 6, 973 P.2d at 1169. Additionally, the court did not find that either the Town or the Commission was prejudiced by the delay. Nor could the court have so found, as they presented no evidence of “substantial harm” or a change in position based on the delay. See Martin, 219 Ariz. 556, ¶ 9, 201 P.3d at 520.
¶ 20 On a more fully developed record after a motion to dismiss, the superior court might conclude Rash‘s delay was unreasonable or that the Town, the Commission, or the administrаtion of justice was prejudiced by the delay. On the record before us, however, we cannot agree substantial evidence supports the conclusion that the doctrine of laches should bar this action. The court therefore abused its discretion in applying laches as a bar to the case proceeding. See McLaughlin, 225 Ariz. 351, ¶ 5, 238 P.3d at 621; Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d at 1155. Accordingly, we vacate the dismissal based on laches and remand to the superior court for further proceedings, including, if the parties pursue the issue, a determination of whether the laches doctrine should bar this action.
¶ 21 The Town and the Commission further argue that under Rash‘s theory of the case, the trial court lacked subject matter jurisdiction to proceed pursuant to
¶ 22 Despite Rash‘s inconsistent argument below, his petition clearly challenges the actions of the Commission. And, although he did not originally include the Commission as a party, he added the Commission in his amended petition pursuant to
Disposition
¶ 23 For the foregoing reasons, we vacate the dismissal of Rash‘s appeal and remand to the superior court for proceedings consistent with this opinion.
HOWARD, Chief Judge.