Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Cochise County No. S0200CV201200499 The Honorable Ann R. Littrell, Judge
Bays Law, P.C., Sierra Vista By P. Randall Bays Counsel for Plaintiff/Appellant
Law Office of John A. MacKinnon, PLLC, Bisbee By John A. MacKinnon Counsel for Defendants/Appellees
Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Howard concurred.
¶1 The City of Tombstone (Tombstone) appeals from the judgment dismissing all of its water rights claims against Beatty's Guest Ranch and Orchard, LLC, et al. (the Beattys). Before we can review the trial court's decision, we must address the Beattys' argument that Tombstone's appeal is null and void because the decision to prosecute the appeal was not made in compliance with the open meeting law.
Factual and Procedural Background
¶2 The following pertinent facts are undisputed. Tombstone, a public body pursuant to A.R.S. § 38-431(6), timely appealed the dismissal of its water rights claims and filed its opening brief. In their timely answering brief, the Beattys contended this court lacked jurisdiction over Tombstone's appeal because the decision to appeal was made in violation of open meeting law; therefore, the appeal was null and void. After Tombstone filed its reply brief, we issued an order directing each party to "file supplemental briefs on this court's jurisdiction as it pertains to compliance with A.R.S. 38-431.03(D)." Both parties filed a supplemental brief.
¶3 Although Tombstone raises multiple issues on appeal, we address only the matter of jurisdiction, which we find dispositive. The Beattys' argument in their answering brief was based, in part, on the result of a records search submitted to the Tombstone City Clerk. Those records indicated that Tombstone consulted with the city attorney about pending litigation against the Beattys during an executive session held several days after the trial court denied Tombstone's request for a new trial. Other than the executive session, the decision to appeal the court's judgment did not appear as an agenda item for any public meeting held between the date of the court's judgment and the filing of the notice of appeal. In its reply brief, Tombstone argued that there was no evidence Tombstone's city council decided to file this appeal during an executive session.
¶4 To determine if there were additional public records relevant to our jurisdiction, we allowed supplemental briefing and instructed Tombstone to "address whether a public vote was taken to make this appeal and provide any supporting documentation." Tombstone's supplemental brief includes minutes of a city council meeting held on October 8, 2013, as well as an affidavit from the mayor avowing that "no vote or other final action was taken" during the executive session with respect to an appeal of the Beattys' case. Tombstone also argues its attorney was not required to seek city council approval in order to file this appeal. Thus, Tombstone does not explicitly concede that its appeal was undertaken without a public, affirmative vote, but appears to stand on its arguments that it did not authorize the appeal in executive session and that a public vote was not necessary to prosecute this appeal. Tombstone argues in the alternative that it ratified the decision to file an appeal at a subsequent open meeting.
¶5 The Beattys provide documentation reflecting that the city council did not discuss the Beattys litigation or approve the appeal during an open session. They contend this was a failure to comply with Arizona's open meeting law that rendered Tombstone's notice of appeal null and void. We now address these arguments.
¶6 Arizona's open meeting law was enacted "to ensure that the public could attend and monitor the meetings of all public bodies." Fisher v. Maricopa Cnty. Stadium Dist, 185 Ariz. 116, 122-23, 912 P.2d 1345, 1351-52 (App. 1995), citing A.R.S. §§ 38-431 through 38-431.09. Section 38-431.03(D) requires a public vote "before any legal action binds the public body." "'Legal action' means a collective decision, commitment or promise made by a public body pursuant to the constitution, the public body's ...