Chalmers v. City of Tucson

829 P.2d 846, 171 Ariz. 162, 98 Ariz. Adv. Rep. 73, 1991 Ariz. App. LEXIS 295
CourtCourt of Appeals of Arizona
DecidedOctober 29, 1991
DocketNo. 2 CA-CV 91-0112
StatusPublished

This text of 829 P.2d 846 (Chalmers v. City of Tucson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chalmers v. City of Tucson, 829 P.2d 846, 171 Ariz. 162, 98 Ariz. Adv. Rep. 73, 1991 Ariz. App. LEXIS 295 (Ark. Ct. App. 1991).

Opinion

OPINION

HOWARD, Judge.

This is an appeal from the granting of summary judgment in favor of appellees. Appellants have raised three issues, one of which is dispositive — does the Tucson Charter vest exclusive original jurisdiction in the Tucson City Court to adjudicate and impose penalties for violations of city ordinances? The trial court ruled, on cross-motions for summary judgment, that the city charter did not vest exclusive original jurisdiction. We disagree and reverse.

Appellants are residents of the City of Tucson who were assessed fines by the Tucson City Administrative Hearing Office on diverse occasions from 1985 through 1989. On June 26, 1989, appellants filed this special action in the superior court.1 Appellants initially sought injunctive and restitutionary relief for themselves and others similarly situated. Subsequently, both sides moved for summary judgment and stipulated that all class action and damage issues would be deferred pending the trial court’s ruling on these motions.

Appellants have been issued citations alleging various civil infractions under the Tucson Code. Appellants Rosenberg and Chalmers have been cited for civil infractions of local Tucson parking ordinances. Of the more than 63 parking citations issued to Rosenberg from 1985 through [163]*1631990, he has either been found responsible on or paid 59 of them. Chalmers received a citation for illegally parking overtime on March 24, 1989. Following a hearing on June 27, 1989, default was entered and $20 assessed against her. In December 1988, appellant Beeck was issued a citation for the civil infraction of owning a barking dog in violation of the Tucson Code’s noise ordinance. A technical division administrative hearing officer found Beeck responsible for the civil infraction and assessed a $100 fine against him. Beeck did not appeal the decision.

In 1983, the city council passed an ordinance creating the “Administrative Hearing Office,” which added §§ 28-1 through 28-20 to Chapter 28 of the Tucson Code. The office was created because there was “a need for an efficient and economical means for certain Code violations to be heard and decided in a forum familiar with the technical aspects thereof ...” Tucson Code, § 28-1. The office created by the code consists of hearing officers appointed by the city manager. The office has a technical and a nontechnical division. § 28-2. The technical division was given exclusive jurisdiction to hear and decide complaints alleging violation of Tucson Code provisions relating to: address numbering, administrative, building, dangerous building, electrical, fire, housing safety, outdoor lighting, mechanical, plumbing and gas, sign, solar system, swimming pool and zoning. Tucson Code § 28-4.

Under Article II an action can be commenced either by the issuance of a citation by an employee responsible for the enforcement of any of the codes enumerated in § 28-4(1) or by the city attorney filing a civil complaint with the office. §§ 28-5(1) and 28-5(2). Article II provides for a hearing and the entry of a written judgment. Section 28-12 provides for the imposition of penalties which can be a fine of not less than $50 nor more than $1,000 per violation or any other order deemed necessary in the hearing officer’s discretion, including a correction or abatement of the violation. Section 28-13 provides that any civil fine not paid within 30 days after judgment constitutes a lien against the defendant’s real property which may be filed with the county recorder’s office. It further provides that the city attorney may commence a legal action in a court of competent jurisdiction to collect the fine. When the hearing officer orders correction or abatement of a violation and there is no compliance within 30 days the violation is deemed a public nuisance and the city attorney may seek injunctive relief in a court of competent jurisdiction. Section 28-14 allows the appeal of any judgment by way of special action to the superior court.

Article III contains provisions which give the nontechnical division exclusive jurisdiction to hear and decide complaints alleging violation of all parking ordinances under the code. It provides that “an action may be filed under this article by the issuance of a citation.” § 28-16. Under § 28-19 the person cited is entitled to a hearing and may contest the citation. Section 28-19(5) provides for the imposition of a fine of $12. In a contested citation the person assessed with a fine can appeal to the city court where he is entitled to a de novo trial. § 28-20.

We begin our discussion of the applicable law with the propositions that Tucson’s Charter is its organic law, Kendall v. Malcolm, 98 Ariz. 329, 404 P.2d 414 (1965), and the city’s legislation must be consistent with the framework established by the charter. Paddock v. Brisbois, 35 Ariz. 214, 276 Pac. 325 (1929). An ordinance which conflicts with a provision of a city charter is void. City of Phoenix v. Yates, 69 Ariz. 68, 208 P.2d 1147 (1949).

The provision of the Tucson City Charter at issue is Chapter XII, sec. 2, which provides:

Sec. 2. Jurisdiction generally.
Said Court shall, within the territorial limits of said city, have and exercise jurisdiction as follows:
It shall have and exercise exclusive original jurisdiction of all proceedings of a criminal nature for the violation of any ordinance of said city, and of every action of a civil nature for the enforcement of a penalty or the recovery of a [164]*164penalty, or forfeiture imposed by any ordinance of said city for violation thereof, or for neglect to perform any duty by any ordinance imposed, and óf every action for the collection of any license, fine, or penalty due from any person to said city, and required to be paid, or which is due and collectible under the ordinance[s] of said city.

(Emphasis added.) The city contends this section requires that all civil actions brought by the city to collect an unpaid fine must be filed in the city court but does not require that the city court make the initial determination whether a civil infraction was committed or assess the proper fine in the first instance.

The city rests this contention on several bases. First, it relies on the plain language of the charter provision which it claims supports its position. We do not agree. The plain language of the charter gives the city court exclusive jurisdiction over the following: (1) proceedings that are criminal in nature; (2) every action of a civil nature for the enforcement of a penalty, or the recovery of a penalty or forfeiture for violating a city ordinance; (3) every action of a civil nature for the enforcement of a penalty, or the recovery of a penalty or forfeiture for neglecting to perform any duty imposed by an ordinance; and (4) every action for the collection of any license, fine, or penalty due from any person to the city which is required to be paid or which is due and collectible under the city’s ordinance. The actions before both the technical and nontechnical divisions are civil actions. Any action for the enforcement of a penalty is, except where the charter states to the contrary, within the exclusive jurisdiction of the city court.

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Related

Kendall v. Malcolm
404 P.2d 414 (Arizona Supreme Court, 1965)
Allred v. Graves
134 S.E.2d 186 (Supreme Court of North Carolina, 1964)
Arnold v. Arizona Department of Health Services
775 P.2d 521 (Arizona Supreme Court, 1989)
City of Phoenix v. Yates
208 P.2d 1147 (Arizona Supreme Court, 1949)
Paddock v. Brisbois
276 P. 325 (Arizona Supreme Court, 1929)

Cite This Page — Counsel Stack

Bluebook (online)
829 P.2d 846, 171 Ariz. 162, 98 Ariz. Adv. Rep. 73, 1991 Ariz. App. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chalmers-v-city-of-tucson-arizctapp-1991.