Welch v. Cochise Cnty. Bd. of Supervisors

250 Ariz. 186

477 P.3d 110

David WELCH, individually and on behalf of all citizens of Cochise County, Precinct Five, Petitioner/Appellant,

v.COCHISE COUNTY BOARD OF SUPERVISORS, Patrick G. Call, Ann English, and Peggy Judd, Respondents/Appellees.

No. 2 CA-CV 2019-0101

Court of Appeals of Arizona, Division 2.

Filed October 9, 2020

Ahwatukee Legal Office P.C., Phoenix, By David L. Abney, Counsel for Petitioner/Appellant

Jellison Law Offices PLLC, Carefree, By James M. Jellison, Counsel for Respondents/Appellees

Mark Brnovich, Arizona Attorney General, By Linley Wilson, Deputy Solicitor General and Katherine H. Jessen, Assistant Attorney General, Phoenix, Counsel for Amicus Curiae Arizona Attorney General

Presiding Judge Eppich authored the opinion of the Court, in which Judge Eckerstrom and Judge Brearcliffe concurred.

EPPICH, Presiding Judge:

¶1 David Welch appeals from the trial court's dismissal of his claims against the Cochise County Board of Supervisors and members Peggy Judd, Ann English, and Patrick Call (collectively, "the board") relating to the board's decision to appoint Call as a justice of the peace. Welch contends the court erred in concluding he lacked standing and had failed to state claims on which relief could be granted. Because Welch has standing as a taxpayer and has sufficiently pleaded violations of Arizona's open-meeting and conflict-of-interest statutes, we reverse.

Factual and Procedural Background

¶2 "In reviewing a trial court's decision to dismiss a claim, we accept as true all facts asserted in the complaint." Harris v. Cochise Health Sys. , 215 Ariz. 344, ¶ 2, 160 P.3d 223 (App. 2007). On or about February 10, 2019, the Cochise County Board of Supervisors posted a public notice for a meeting and possible executive session to be held the morning of February 12. Two items were listed on the agenda: "Discussion regarding the process for filling the vacancy for Justice of the Peace in Justice Precinct 5" and "Appoint _______ as Justice of the Peace for Justice Precinct 5." The meeting began around the scheduled time, and the board discussed the process for filling the justice-of-the-peace position, rejecting the idea of an application process or a committee-driven process. In particular, Call agreed with the others that accepting applications would be a lengthy process, and if the board formed a committee but did not agree with its suggested candidate, it would be disappointing to those involved. English subsequently moved to go into executive session to discuss the matter; Call seconded the motion and it passed unanimously. The board met in executive session for approximately thirty minutes. When it returned, the board unanimously voted to table the matter and recess until 11:30 a.m.

¶3 The board reconvened the meeting just after 12:30 p.m., citing time conflicts with previously scheduled matters as the reason it was more than an hour late. English immediately moved to appoint Call as justice of the peace. After brief remarks by English and Judd, the board appointed Call to the position by a two to zero vote, with Call abstaining.

¶4 Two days later, Welch sued the board, alleging that Call's appointment had been illegal because the appointment process violated Arizona's open-meeting laws, see A.R.S. § 38-431.01 to -431.09, and involved a prohibited conflict of interest, see A.R.S. § 38-503 (requiring public officers to disclose and refrain from voting or otherwise participating in any matter in which the officer has a substantial interest in the decision). He sought (1) an order declaring that Call's appointment was null and void; (2) a writ of mandamus ordering the board "to comply with the open meeting statutes and properly notify the public of its intent to appoint one of its own members to fill the vacancy of Justice of the Peace and to open the position to the public for application (bidding) by other qualified candidates"; (3) a writ of mandamus ordering the board to convene a committee and consider other qualified applicants; (4) a writ of mandamus ordering the board to produce the minutes of the executive session for in camera review and possible public release under § 38-431.07(C); (5) an injunction prohibiting any further closed meetings in filling the vacancy; (6) an injunction prohibiting any further executive sessions on the issue and ordering the board to comply with open-meeting statutes; (7) an injunction requiring the board to notify the public of its intent to fill the vacancy with one of its own members and to open the position to public applications from qualified candidates; (8) monetary penalties against the individual board members; and (9) attorney fees and costs.

¶5 On February 24, the board noticed a meeting on February 26 to ratify its actions appointing Call. The next day, Welch petitioned for a temporary restraining order and preliminary injunction prohibiting the board from appointing Call or taking further action on that matter. Later that day, the trial court issued a restraining order prohibiting the board from taking further action on the issue and ordering the board to appear at a hearing to show cause why the injunction should not be granted.

¶6 Despite the temporary restraining order, Call took the oath of office later that day. Welch promptly filed a motion for contempt against Call, alleging that Call had violated the order by taking the oath. Shortly thereafter, Welch filed an amended complaint seeking additional injunctive and declaratory relief, including (1) prohibiting the board from paying and Call from receiving a salary for justice-of-the-peace services; (2) requiring Call to pay any salary received as justice of the peace back to the county; (3) prohibiting Call from further serving as justice of the peace; (4) prohibiting the board from taking any action to ratify Call's appointment; (5) removing Call, English, and Judd from office for knowing violation of open-meeting laws and § 38-503 ; and (6) declaring Call to be unfit to serve as justice of the peace because of his knowing and intentional violation of those laws.

¶7 A different judge presided over the injunction hearing; the judge who had issued the temporary restraining order had recused herself because she had criticized Call's appointment in an email to another judge. The trial court vacated the temporary restraining order and ruled it void ab initio , finding abuse of discretion because the issuing judge had failed to disclose her conflict and the order failed to state several required findings.¹ The court denied Welch's subsequent motion for a new temporary restraining order and other emergency relief. A few days after the temporary restraining order was vacated, the board ratified its decision to appoint Call in a noticed public meeting.

¶8 The board then moved to dismiss Welch's action for lack of standing and failure to state claims, and after a hearing, the trial court granted the motion on both grounds. As to the requests for declaratory and injunctive relief, the court found that Welch lacked standing because he had made "no attempt to show distinct, palpable injury or particularized harm" and had no standing as a taxpayer because "[t]he county's expenditure of the tax monies on Justice of the Peace #5 would be spent regardless of the person appointed." The court also found that Welch lacked standing to bring a mandamus action against the Board of Supervisors for the alleged open-meeting and conflict-of-interest violations because Welch was not a "person affected" under A.R.S. §§ 38-431.07(A) and 38-506(B), the standing provisions of the open-meeting and conflict-of-interest laws. Finally, the court found that Welch lacked standing to seek Call's removal from office, concluding that remedy was statutorily limited to the attorney general, a county attorney, or a person claiming present entitlement to the office who had first sought action by the attorney general or county attorney.

¶9 The trial court also concluded that even if Welch had standing, he had failed to state any claims upon which it could grant relief. The court found that the board had "cured any issue of open meetings laws improprieties at the ... ratification meeting." And it found no actionable conflict of interest because the board had discretion to appoint any qualified candidate—even without opening the application process or convening a selection committee. Lastly, the court denied as moot Welch's request to compel production of the executive session minutes for in camera review.

¶10 Welch timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(b).

Taxpayer Standing

¶11 Welch argues the trial court erred in dismissing his claims for lack of standing, contending that as a resident and taxpayer of Precinct 5 he had standing to enforce the open-meeting and conflict-of-interest statutes. We review de novo a trial court's grant of a motion to dismiss, Premier Physicians Grp., PLLC v. Navarro , 240 Ariz. 193, ¶ 6, 377 P.3d 988 (2016), and its determination of whether standing exists, Judson C. Ball Revocable Tr. v. Phx. Orchard Grp. I, L.P. , 245 Ariz. 519, ¶ 5, 431 P.3d 589 (App. 2018). We read the allegations in the complaint in conjunction with the exhibits attached to the complaint and other public records in the trial court record. See Workman v. Verde Wellness Ctr., Inc. , 240 Ariz. 597, ¶ 10, 382 P.3d 812 (App. 2016) (exhibits attached to complaint and public records regarding matters referenced in the complaint not considered matters outside the pleadings). We assume the truth of well-pled factual allegations and any reasonable inferences that can be drawn from them. Cullen v. Auto-Owners Ins. , 218 Ariz. 417, ¶ 7, 189 P.3d 344 (2008).

¶12 As the board points out, Welch did not explicitly state in his complaint that he was a taxpayer, alleging only that he was a "resident living within the Justice Court Five precinct" and had a matter pending in that court when he filed his...