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Monday, March 29, 2004
City Of Phoenix v. Phoenix Employment Relations Board: Division One Holds That the Phoenix Employment Relations Board Has Jurisdiction Over an Unfair Labor Practice Charge Even When the Charging Employee Has Sought a Disciplinary Hearing Before the Phoenix Civil Service Board
The Phoenix City Charter grants the Phoenix Civil Service Board (“PCSB”) broad authority to review disciplinary actions. The City’s Meet and Confer Ordinance grants the Phoenix Employment Relations Board (“PERB”) authority to adjudicate a charge for which no appeal has been taken to PCSB, as well as exclusive authority to determine the existence of unfair labor practices. The issue here is whether PERB has authority to adjudicate an unfair labor practice charge when the charging employee also appeals his or her discipline case to PCSB.
Appellants Patrick Brown and Tracie Lowe, City of Phoenix employees, sought review of their employee discipline cases with PCSB. Thereafter, they filed unfair labor practice charges with PERB. The City moved to dismiss the unfair labor practice charges on the grounds that PERB had no jurisdiction in cases in which a timely appeal already had been filed with the PCSB. The employees and their union contended that PERB has exclusive jurisdiction to consider unfair labor practices. After PERB denied the motion to dismiss, the City filed a special action in superior court. The superior court found that PERB lacked jurisdiction to hear an unfair labor practice charge on the same case in which PCSB is hearing a disciplinary appeal. The employees, their union, and PERB brought this appeal.
Division One reversed the superior court’s decision and remanded, concluding that PERB may hear an unfair labor practice charge even when the charging employee appeals a related discipline case to PCSB. After performing an in-depth review of the language and legislative history of the Ordinance, City Charter, and PERB’s Rules, the court rejected the City’s position that an employee forfeits the right to have PERB determine whether an unfair labor practice has been committed by seeking PCSB’s review of a disciplinary action. The court noted that the events surrounding the two types of actions were not necessarily interrelated. The court further noted that the City’s position would force an employee to choose between filing one action or the other, which would render significant portions of the Ordinance meaningless.
Judge Irvine authored the opinion; Judge Ehrlich and Mohave County Superior Court Judge Chavez joined him in the opinion.
The Phoenix City Charter grants the Phoenix Civil Service Board (“PCSB”) broad authority to review disciplinary actions. The City’s Meet and Confer Ordinance grants the Phoenix Employment Relations Board (“PERB”) authority to adjudicate a charge for which no appeal has been taken to PCSB, as well as exclusive authority to determine the existence of unfair labor practices. The issue here is whether PERB has authority to adjudicate an unfair labor practice charge when the charging employee also appeals his or her discipline case to PCSB.
Appellants Patrick Brown and Tracie Lowe, City of Phoenix employees, sought review of their employee discipline cases with PCSB. Thereafter, they filed unfair labor practice charges with PERB. The City moved to dismiss the unfair labor practice charges on the grounds that PERB had no jurisdiction in cases in which a timely appeal already had been filed with the PCSB. The employees and their union contended that PERB has exclusive jurisdiction to consider unfair labor practices. After PERB denied the motion to dismiss, the City filed a special action in superior court. The superior court found that PERB lacked jurisdiction to hear an unfair labor practice charge on the same case in which PCSB is hearing a disciplinary appeal. The employees, their union, and PERB brought this appeal.
Division One reversed the superior court’s decision and remanded, concluding that PERB may hear an unfair labor practice charge even when the charging employee appeals a related discipline case to PCSB. After performing an in-depth review of the language and legislative history of the Ordinance, City Charter, and PERB’s Rules, the court rejected the City’s position that an employee forfeits the right to have PERB determine whether an unfair labor practice has been committed by seeking PCSB’s review of a disciplinary action. The court noted that the events surrounding the two types of actions were not necessarily interrelated. The court further noted that the City’s position would force an employee to choose between filing one action or the other, which would render significant portions of the Ordinance meaningless.
Judge Irvine authored the opinion; Judge Ehrlich and Mohave County Superior Court Judge Chavez joined him in the opinion.
Posted date: Mon, Mar 29, 2004
Martineau v. Maricopa County: Division One Holds That Notice-of-Claim Statutes Need Not be Complied with Prior to Filing of Action for Declaratory Relief.
A.R.S. 12-821.01 requires a person with a claim against a public entity to file his claim with the public entity itself, and to give the public entity sixty days to offer to settle the claim, before filing the claim in court. A.R.S. 11-622 requires a person with a claim against a county to present the claim to the county board of supervisors. In this lawsuit, two Maricopa County constables brought a claim for declaratory relief against Maricopa County and the members of its board of supervisors without complying with either of those statutes. (The constables alleged that a new county policy requiring constables to complete enhanced safety training before being permitted to carry certain types of weapons was unlawful.) The trial court granted summary judgment for the county without addressing the issue of the constables' non-compliance with the notice-of-claim statutes. In affirming, the Court of Appeals addressed the notice-of-claim issue, and, deciding a matter of first impression, held that the statutes need not be complied with in an action for declaratory relief. The Court noted that the statutes' purposes were to allow the public entity in question to take the opportunity to settle the claim, and to assist the entity in financial planning and budgeting -- purposes that were not implicated by a claim for declaratory relief. The Court also noted that the language of the statutes, requiring "minutely" itemized claims, did not make sense as applied to such a claim. The Court also observed that California's courts had held that that state's notice-of-claim statute does not apply to claims for declaratory relief. The Court noted that, in a separate unpublished opinion, it was affirming the trial court's ruling granting the county summary judgment on the merits of the constables' claim.
The decision was authored by Judge Winthrop and joined by Judges Thompson and Gemmill.
Practice Notes: The Court divided its opinion into published and unpublished components, noting that only the ruling on the notice-of-claim issue "merits publication." The Court expressly declined to rule on an argument that was raised before, but not addressed by, the trial court, and that the county did not press on appeal. The Court did, however, address an argument (the notice-of-claim argument) that the trial court did not address, but that the county pressed both before the trial court and on appeal.
A.R.S. 12-821.01 requires a person with a claim against a public entity to file his claim with the public entity itself, and to give the public entity sixty days to offer to settle the claim, before filing the claim in court. A.R.S. 11-622 requires a person with a claim against a county to present the claim to the county board of supervisors. In this lawsuit, two Maricopa County constables brought a claim for declaratory relief against Maricopa County and the members of its board of supervisors without complying with either of those statutes. (The constables alleged that a new county policy requiring constables to complete enhanced safety training before being permitted to carry certain types of weapons was unlawful.) The trial court granted summary judgment for the county without addressing the issue of the constables' non-compliance with the notice-of-claim statutes. In affirming, the Court of Appeals addressed the notice-of-claim issue, and, deciding a matter of first impression, held that the statutes need not be complied with in an action for declaratory relief. The Court noted that the statutes' purposes were to allow the public entity in question to take the opportunity to settle the claim, and to assist the entity in financial planning and budgeting -- purposes that were not implicated by a claim for declaratory relief. The Court also noted that the language of the statutes, requiring "minutely" itemized claims, did not make sense as applied to such a claim. The Court also observed that California's courts had held that that state's notice-of-claim statute does not apply to claims for declaratory relief. The Court noted that, in a separate unpublished opinion, it was affirming the trial court's ruling granting the county summary judgment on the merits of the constables' claim.
The decision was authored by Judge Winthrop and joined by Judges Thompson and Gemmill.
Practice Notes: The Court divided its opinion into published and unpublished components, noting that only the ruling on the notice-of-claim issue "merits publication." The Court expressly declined to rule on an argument that was raised before, but not addressed by, the trial court, and that the county did not press on appeal. The Court did, however, address an argument (the notice-of-claim argument) that the trial court did not address, but that the county pressed both before the trial court and on appeal.
Posted date: Mon, Mar 29, 2004
Wednesday, March 24, 2004
Case Summaries for Tomorrow’s Oral Arguments Before the Arizona Supreme Court
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court tomorrow, Thursday, March 25. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: 1) Arizona Water Company v. Arizona Department of Water Resources, N.W. Plummer, (former) Director, involving a number of issues related to the 1980 Groundwater Management Act and the authority of the Director of the Department of Water Resources to impose mandatory conservation requirements; and 2) State v. Aguilar, a criminal matter involving the issue of whether the scope of the propensity exception codified in Arizona Rule of Evidence 404(c) encompasses violent sexual assaults against adults as well as sex-related crimes against children.
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court tomorrow, Thursday, March 25. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: 1) Arizona Water Company v. Arizona Department of Water Resources, N.W. Plummer, (former) Director, involving a number of issues related to the 1980 Groundwater Management Act and the authority of the Director of the Department of Water Resources to impose mandatory conservation requirements; and 2) State v. Aguilar, a criminal matter involving the issue of whether the scope of the propensity exception codified in Arizona Rule of Evidence 404(c) encompasses violent sexual assaults against adults as well as sex-related crimes against children.
Posted date: Wed, Mar 24, 2004
Tuesday, March 23, 2004
Petitions for Review Granted Tuesday, March 16, 2004
The Arizona Supreme Court granted four civil petitions for review and accepted jurisdiction for one petition for special action.
Nancy May v. Lindsay Ellis. Issues as presented by Petitioner in the special action petition: 1) “Is this a matter where Nancy May should have relief by way of special action jurisdiction?” 2) “Whether insurance proceeds which have been paid to a named beneficiary are exempt from claims of creditors of the deceased’s estate.”
NOTE: According to the petition, this case involves a purported conflict between A.R.S. § 20-1131, which exempts life insurance proceeds from claims of creditors of the decedent's estate, and recently enacted A.R.S. § 14-6102, which makes a transferee of a non-probate transfer subject to liability to decedent's probate estate.
Stephan G. Zajac and Evelia S. Zajac v. City of Casa Grande and Wal-Mart Incorporated. There were two petitions for review granted in this case as each Defendant/Appellee filed a separate petition. The issues presented by City of Casa Grande for review were as follows: 1) “Whether the Court of Appeals erred in reversing the trial court when it failed to determine gravity of the procedural error before invalidating the ordinance and Plaintiff-Appellant’s silence during the referendum election evidences lack of gravity of the error;” 2) “Whether the court of appeals erred when it did not heed the holding of Hart and apply evidence of unreasonable delay and detrimental reliance to uphold the trial court ruling.”
The issue presented by Wal-Mart for review was, “whether a municipality’s reasonable and good faith efforts to provide mailed notice of a proposed rezoning to neighboring lots, which fully complied with the state enabling statute and later was successfully affirmed in a referendum election by the City’s voters, may be overturned by a single disgruntled lot owner who leased his premises to a third party and lived off site with his mother in a house in her name in Casa Grande, and therefore argued that he did not technically receive the mailed notice, in the most heavily publicized zoning case in Casa Grande’s history.”
The remaining two petitions for review and the petition for special action were matters involving criminal procedure: 1) State of Arizona ex rel. Richard M. Romley v. Superior Court of the State of Arizona and the Honorable Eddward J. Ballinger, Jr., involving the Arizona Rules of Criminal Procedure and an administrative order to modify release conditions; 2) In re the Commitment of: Robert Flemming, involving the due process rights of a sex offender committed to the Arizona State Hospital; 3) Kerby James McKaney v. Superior Court of the State of Arizona and the Honorable John Foreman, special action petition involving a capital case and the State’s notice of intent to seek the death penalty.
The Arizona Supreme Court granted four civil petitions for review and accepted jurisdiction for one petition for special action.
Nancy May v. Lindsay Ellis. Issues as presented by Petitioner in the special action petition: 1) “Is this a matter where Nancy May should have relief by way of special action jurisdiction?” 2) “Whether insurance proceeds which have been paid to a named beneficiary are exempt from claims of creditors of the deceased’s estate.”
NOTE: According to the petition, this case involves a purported conflict between A.R.S. § 20-1131, which exempts life insurance proceeds from claims of creditors of the decedent's estate, and recently enacted A.R.S. § 14-6102, which makes a transferee of a non-probate transfer subject to liability to decedent's probate estate.
Stephan G. Zajac and Evelia S. Zajac v. City of Casa Grande and Wal-Mart Incorporated. There were two petitions for review granted in this case as each Defendant/Appellee filed a separate petition. The issues presented by City of Casa Grande for review were as follows: 1) “Whether the Court of Appeals erred in reversing the trial court when it failed to determine gravity of the procedural error before invalidating the ordinance and Plaintiff-Appellant’s silence during the referendum election evidences lack of gravity of the error;” 2) “Whether the court of appeals erred when it did not heed the holding of Hart and apply evidence of unreasonable delay and detrimental reliance to uphold the trial court ruling.”
The issue presented by Wal-Mart for review was, “whether a municipality’s reasonable and good faith efforts to provide mailed notice of a proposed rezoning to neighboring lots, which fully complied with the state enabling statute and later was successfully affirmed in a referendum election by the City’s voters, may be overturned by a single disgruntled lot owner who leased his premises to a third party and lived off site with his mother in a house in her name in Casa Grande, and therefore argued that he did not technically receive the mailed notice, in the most heavily publicized zoning case in Casa Grande’s history.”
The remaining two petitions for review and the petition for special action were matters involving criminal procedure: 1) State of Arizona ex rel. Richard M. Romley v. Superior Court of the State of Arizona and the Honorable Eddward J. Ballinger, Jr., involving the Arizona Rules of Criminal Procedure and an administrative order to modify release conditions; 2) In re the Commitment of: Robert Flemming, involving the due process rights of a sex offender committed to the Arizona State Hospital; 3) Kerby James McKaney v. Superior Court of the State of Arizona and the Honorable John Foreman, special action petition involving a capital case and the State’s notice of intent to seek the death penalty.
Posted date: Tue, Mar 23, 2004
Thursday, March 18, 2004
Arizona Supreme Court Issues Minutes
The Arizona Supreme Court has issued Part A and Part B of its Minutes for March 16, 2004. Of the 76 cases that the Court ruled on, 28 were criminal, 43 were civil, and five were state bar petitions. The Court granted four civil petitions and one criminal petition, and accepted jurisdiction of one civil special action.
The Arizona Supreme Court has issued Part A and Part B of its Minutes for March 16, 2004. Of the 76 cases that the Court ruled on, 28 were criminal, 43 were civil, and five were state bar petitions. The Court granted four civil petitions and one criminal petition, and accepted jurisdiction of one civil special action.
Posted date: Thu, Mar 18, 2004
Wednesday, March 10, 2004
Arizona Supreme Court Issues Summaries of Cases Set for Argument March 23
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court on Tuesday, March 23. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: American Pepper Supply v. Federal Insurance Co., involving the question of whether an insurer must establish the contract defense of misrepresentation in a first-party insurance claim by a preponderance of the evidence or instead by the heightened standard of clear and convincing evidence, and Phillips v. Araneta, involving the questions of whether the judge in the petitioner's capital trial erred in requiring the petitioner to submit to a mental health examination by the state's chosen doctor and in holding that the preclusion of petitioner's mental-health-related mitigation at the penalty phase of the case was the appropriate remedy for petitioner's refusal to submit to the examination.
The Arizona Supreme Court Staff Attorney's Office has issued summaries of the cases to be argued before the Court on Tuesday, March 23. The summaries are prepared solely for educational purposes and should not be considered official commentary by the Court or any member of the Court. The Court will hear two cases: American Pepper Supply v. Federal Insurance Co., involving the question of whether an insurer must establish the contract defense of misrepresentation in a first-party insurance claim by a preponderance of the evidence or instead by the heightened standard of clear and convincing evidence, and Phillips v. Araneta, involving the questions of whether the judge in the petitioner's capital trial erred in requiring the petitioner to submit to a mental health examination by the state's chosen doctor and in holding that the preclusion of petitioner's mental-health-related mitigation at the penalty phase of the case was the appropriate remedy for petitioner's refusal to submit to the examination.
Posted date: Wed, Mar 10, 2004
A Report on Hibbs v. Winn by the Attorneys Involved
The Arizona State Bar Appellate Practice Section is presenting an educational program entitled, “ORAL ARGUMENT IN THE U.S. SUPREME COURT: A Report on Hibbs v. Winn by the Attorneys Involved.” The speakers will be Attorney General Terry Goddard and Marvin Cohen. It is scheduled for Thursday, March 18, 2004 at 4:00 p.m. at the Arizona Supreme Court Building, 1501 W. Washington, Conf. Rm. 119A/B, Phoenix, Arizona.
Link to the Hibbs v. Winn oral argument transcript.
Link to the briefs.
Link to the 9th Circuit Court Opinion.
Previous AZAPP postings regarding Hibbs v. Winn:
February 11, 2004
January 16, 2004
October 2, 2003
Posted date: Wed, Mar 10, 2004
Monday, March 1, 2004
Arizona Attorney Article
An article in this month's Arizona Attorney details potential record traps on appeal for the unwary trial lawyer.
An article in this month's Arizona Attorney details potential record traps on appeal for the unwary trial lawyer.
