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Burns v. City of Tucson

Court of Appeals of Arizona, Second Division

November 23, 2018

Michael Burns, a single man, Plaintiff/Appellant,
v.
City of Tucson, a municipal corporation, Defendant/Appellee.

          Appeal from the Superior Court in Pima County No. CR20170196 The Honorable Cynthia T. Kuhn, Judge

          Sammartino Law Group P.L.L.C., Tucson By Carl Sammartino Counsel for Plaintiff/Appellant

          Jennings, Strouss & Salmon P.L.C., Tucson By John J. Kastner Jr., Danielle J. K. Constant, and Laura R. Curry and Michael J. Rankin, Tucson City Attorney By Damian Fellows, Principal Assistant City Attorney, Tucson Counsel for Defendant/Appellee

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring concurred and Judge Brearcliffe specially concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE.

         ¶1 Michael Burns appeals from the trial court's order dismissing his complaint that alleged violations of his rights under Arizona's relocation-assistance statutes. He argues those statutes imply a private right of action, that he was entitled to bring a negligence action to remedy his inadequate relocation-assistance award, and that the superior court should have exercised special-action jurisdiction. We affirm.

         Factual and Procedural History

         ¶2 On review of a motion to dismiss, "we assume the truth of all material facts alleged by [the plaintiff]." Phelps Dodge Corp. v. El Paso Corp., 213 Ariz. 400, ¶ 8 (App. 2006). In October 2015, following condemnation of certain property belonging to Burns, an agent for the City of Tucson notified him that he was entitled to receive a total of $38, 284.72 in relocation-assistance benefits. See A.R.S. § 11-963. In December, Burns filed an appeal with that agent claiming he was entitled to a larger benefit. The agent, with the concurrence of the Project Manager of the City's Real Estate program, affirmed the assistance award a month later. In July 2016, Burns served a notice of claim on the City and, in January 2017, brought suit, alleging negligence, a claim under the relocation-assistance statutes, and that the City had denied him due process.

         ¶3 The City filed a motion to dismiss asserting the superior court lacked subject matter jurisdiction because the relocation-assistance statutes do not provide for judicial review.[1] Following a hearing, the trial court determined neither the relocation-assistance statutes nor the Administrative Review Act authorized judicial review and dismissed Burns's complaint with prejudice. See A.R.S. § 12-902(A). The court further declined to treat the complaint as a petition for special action. Burns appealed; we have jurisdiction. A.R.S. §§ 12-120.21(A)(1), 12-2101 (A)(1).

         Implied Right of Action

         ¶4 Burns argues our relocation-assistance statutes, see A.R.S. §§ 11-961 to 11-974, imply a private right of action in favor of displaced persons aggrieved by the amount of relocation-assistance benefits an acquiring agency offers. Whether a statute implies a private right of action is a question of law we review de novo. Gersten v. Sun Pain Mgmt, P.L.L.C, 242 Ariz. 301, ¶ 8 (App. 2017).

         ¶5 In relevant part, our relocation-assistance statutes require a "displacing agency, as a part of the cost of the project, [to] make a payment to a displaced person . . . for . . . [a]ctual reasonable expenses in moving himself and his family, business, . . . or other personal property." A.R.S. § 11-963(A)(1). Further, the statute provides that a "displaced person aggrieved by . . . the amount of a payment, may have his application reviewed by the chief executive officer of the acquiring agency whose decision shall be final." A.R.S. § 11-967.

         ¶6 In determining whether the relocation-assistance statutes provide a private right of action, we begin with the statutory language, which is "the best and most reliable index of its meaning." Arpaio v. Steinle, 201 Ariz. 353, ¶ 5 (App. 2001). "[W]hen the statute is plain and unambiguous, we will not engage in any other method of statutory interpretation." City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 13 (App. 2008). However, in the absence of express language, Arizona law more broadly implies a private right of action "when consistent with 'the context of the statutes, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law.'"[2] Chavez v. Brewer, 222 Ariz. 309, ¶ 24 (App. 2009) (quoting Transamerica Fin. Corp. v. Superior Court, 158 Ariz. 115, 116 (1988)).

         ¶7 The statute neither expressly confers nor forecloses a private right of action. Accordingly, we must consider not only the statutory language, but also its context, subject matter, effects and ...


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