Gaffney v. Hon. Verdin/State

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RUPERT EDWARD GAFFNEY, Petitioner/Appellant, v. HONORABLE MARIA DEL MAR VERDIN, Respondent Judge/Appellee, STATE OF ARIZONA; MARICOPA COUNTY ATTORNEY, Real Parties in Interest/ Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02/16/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CV 08-0825 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. LC2008-000681-001 DT The Honorable Joseph Kreamer, Judge AFFIRMED Rupert Edward Gaffney Petitioner/Appellant In Propria Persona Phoenix Andrew P. Thomas, Maricopa County Attorney By Terri L. Clarke, Deputy County Attorney Attorneys for Appellees, Real Parties in Interest Phoenix K E S S L E R, Judge ¶1 from Appellant the superior Rupert court s Edward Gaffney dismissal of ( Gaffney ) his special appeals action petition. For the reasons stated below, we affirm the dismissal. FACTUAL AND PROCEDURAL HISTORY ¶2 Gaffney was indicted on a charge of burglary in the third degree stemming from a theft of equipment from a Phoenix ice manufacturing plant. Gaffney claimed his trial counsel was failing to pursue the case properly and requested a new attorney on a number occasions. Gaffney requests. of then The filed court a repeatedly special action denied his petition in superior court challenging these denials. ¶3 one In reviewing Gaffney s petition, the court held that superior review the Accordingly, grounds court judge decision the that court only an does of not have another the jurisdiction superior dismissed Gaffney s appellate court has court petition to judge. on jurisdiction the to consider special action petitions seeking review of a superior court decision. ¶4 Gaffney timely appealed 1 . pursuant to Arizona Revised This court has jurisdiction Statutes ( A.R.S. ) sections 12- 120.21 and -2101(A) (2003). 1 Gaffney originally appealed from an unsigned minute entry. We revested jurisdiction in the superior court to permit Gaffney to request a final signed judgment. See Eaton Fruit Co. v. Cal. Spray-Chemical Corp., 102 Ariz. 129, 426 P.2d 397 (1967). Gaffney requested, and received, a final signed judgment from the superior court giving this Court jurisdiction pursuant to 2 DISCUSSION ¶5 The only issue on appeal is whether the superior court erred in dismissing Gaffney s special action petition for lack of jurisdiction. We review the superior court s determination to accept or decline jurisdiction in a special action for an abuse of discretion. See e.g., Pima County Assessor v. Ariz. State Bd. of Equalization, 195 Ariz. 329, 332, ¶ 8, 987 P.2d 815, 818 (App. 1999); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984). We focus solely on the dismissal of the special action petition and do not consider the underlying merits of Gaffney s claim. ¶6 by An abuse of discretion occurs when the reasons given the court for its action are clearly untenable, incorrect, or amount to a denial of justice. legally State v. Fish, 222 Ariz. 109, 114, ¶ 8, 213 P.3d 258, 263 (App. 2009)(quoting State v. Chapple, 135 Ariz. 281, 297, n.18, 660 P.2d 1208, 1224 n.18 (1983)). Abuse of discretion also occurs when a discretionary finding of fact is not based on any evidence. Fish, 222 Ariz. at 114, ¶ 8, 213 P.3d at 263. ¶7 Both the Arizona Constitution and the Arizona Revised Statutes limit possess. See Ariz. Const., art. 6, § 16 (2001) ( The superior the appellate A.R.S. § 12 2101(B) (2003). order dated May 15, 2009. jurisdiction superior courts We reinstated jurisdiction in an 3 court shall have appellate jurisdiction in cases arising in justice and other courts inferior to the superior court as may be provided by law. ); A.R.S. § 12-124(A) (2003) ( The superior court shall have appellate jurisdiction in all actions appealed from justices of the peace, inferior courts, boards and officers . . . . ); A.R.S. § 12-124(B) (2003) ( The superior court may issue writs of certiorari to inferior courts, boards or officers to compel a return of their proceeding, examine or try such proceedings and give any judgment or make any order necessary in furtherance of justice. ). Neither the Arizona Constitution nor state statutes confer jurisdiction on the superior court to rule on a petition for special action emanating from another superior court. Accordingly, a special action filed in superior court is only proper if it challenges the ruling of an inferior body. ¶8 The appellate jurisdiction of superior analyzed, with respect to special actions, in both courts is Green v. Thompson, 17 Ariz. App. 587, 590-91, 499 P.2d 715, 718-19 (1972) and Dunlap v. Super. Ct., 169 Ariz. 82, 817 P.2d 27 (App. 1991). In Green this jurisdiction to Court review held the a superior decision commissioner through a special action. 591, 499 P.2d at 719. of court a judge lacks superior court Green, 17 Ariz. App. at We stated that while a superior court commissioner s jurisdiction is narrower than that of a regular superior court judge, [] within the confines of that authority, 4 he acts as a superior court judge. 590. We then reviewed the Id. at 718, 499 P.2d at Arizona Constitution and state statutes, finding that there is no indication of an intent to give the superior commissioners. court appellate jurisdiction at its own The commissioners acts have the same force and effect as if done by a superior court judge. P.2d over 591. While Green does not state Id. at 719, 499 so expressly, it clearly stands for the proposition that if a superior court cannot review the decision of a superior court commissioner through a special action petition, a fortiori, it cannot review the decision of a superior court judge under the same circumstances. ¶9 In Dunlap, the issue was whether the superior court has jurisdiction to accept a special action challenge to the decisions of magistrate. court a superior judge acting as a committing Dunlap, 169 Ariz. at 84, 817 P.2d at 29. distinguished commissioner, court by Green, pointing which out involved that a a superior magistrate is This court not an officer of the superior court, but is an inferior officer whose authority and powers are separate from any court. 817 P.2d at 31. Id. at 86, Because we found that the office of magistrate is inferior to the superior court we held that the superior court has jurisdiction to accept a special action challenge of a decision by a superior court judge sitting as a magistrate. 5 Id., 817 P.2d at 31. The fact the magistrate in Dunlap also happened to be a superior court judge was immaterial because [a]ll judicial officers sitting as magistrates have equal rank. . . . [A] judge when exercising the functions of a magistrate has only the magistrates. jurisdiction and power conferred by law on Id. at 85, 817 P.2d at 30 (quoting from Sheridan v. Super. Ct., 91 Ariz. 211, 214, 370 P.2d 949, 951 (1962)). ¶10 The decisions in Green and Dunlap delineate a clear line regarding petitions. to confer Gaffney s when superior courts may hear special action Petitions must come from inferior courts or bodies jurisdiction special on action a superior petition court. asked one In this division of case the superior court to review the decision of another division of the superior court. have been a To find jurisdiction in such a situation would clear established case law. violation of both state statute and The reviewing court correctly determined that it lacked jurisdiction to consider the special action and properly dismissed the petition. 6 CONCLUSION ¶11 For the forgoing reasons, we affirm the superior court s judgment dismissing Gaffney s special action petition. /s/ DONN KESSLER, Judge CONCURRING: /s/ PATRICK IRVINE, Presiding Judge /s/ MICHAEL J. BROWN, Judge 7

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