Arizona Court OfAppeals Division One Holds That Constable Was Entitled To Notice, An Opportunity To Be Heard, And An Explanation Before The Presiding Judge Exercised His Authority To Reduce The Constable’s Duties.

The Maricopa County Court System Coordinator wrote to the Constable Ethics Committee to inform the Committee that Constable Annette Clark had received “‘regular formal and informal complaints’ . . . about Clark’s ‘lack of professionalism, rudeness toward county and court staff as well as citizens, and a lack of diligence in performing her duties.’”  The Committee agreed, reprimandingClark and recommending that she retire from office.  During the same timeframe, Clark also had been the subject of an injunction against harassment of court employees.  Clark nevertheless did not retire.  A few months later, the Presiding Judge of the Maricopa County Superior Court, relying on A.R.S. § 22-131(A), which gives the presiding judge supervisory authority over the Constable’s duties, “advised Clark [that] her services would not be needed and the Justice Court would no longer be directing any process to her for service.”  Clark then brought a quo warranto action in her own name, alleging that the presiding judge “deprived [her] from her duly elected position as Constable . . . without legal cause or due process.”  The trial court granted summary judgment against Clark because (1) the presiding judge had inherent supervisory authority over whether Clark could continue to provide service to the justice court, (2) although “the Presiding Judge had not stated any reasons for taking the supervisory actions, the court found ‘the only reasonable inference [wa]s that’ the Injunction and Reprimand had ‘contribute[d] heavily to’” the presiding judge’s actions and that his actions were not arbitrary, capricious, or an abuse of discretion, and (3) Clark was not entitled to due process because she did not have a property right in her elected position, and in any event, “she had not been removed from office because she had continued to hold her title and collect her salary.”  Clark appealed.     

The Arizona Appeals Court affirmed in part, reversed in part, and remanded.  The court first held that the presiding judge acted within his supervisory authority over the justice courts: “based upon authority granted by the Legislature and the supreme court as allowed by the Arizona Constitution, the Presiding Judge had both the right and the responsibility to exercise supervisory authority over Clark and was empowered to determine whether she was properly performing the statutory duties required of her in her capacity as an officer of the court.”  The court next held that, although Clark was not entitled to due process to “protect the right to hold [elected] office,” the presiding judge’s supervisory authority must be exercised “reasonably,” citing Merrill v. Phelps, 52Ariz. 526, 84 P.2d 74 (1938).  The court concluded that “[p]roviding notice, an opportunity to be heard before implementation of disciplinary action, and an explanation of why that action is necessary is, in our view, not only consistent with a presiding judge’s obligation to act reasonably but is also a measure of its exercise.”  BecauseClark did not receive this “reasonable” procedure, the court remanded for further proceedings.          

Judge Norris authored the opinion; Judges Weisberg and Portley concurred.