Cottonwood resident Jennifer Richards filed a legal action in Yavapai County Superior Court known as a petition of a writ of mandamus against the individual members of the Cottonwood Planning and Zoning Commission — Lindsay Masten, Randy Garrison, Daniel Comella, James Glascott, George Gehlert and Bob Rothrock, and Cottonwood Community Development Director Scott Ellis — on Feb. 5, asking the court to compel them to vote to revoke Minerals Research Inc.’s conditional use permit related to the slag pile in Cottonwood.
A writ of mandamus is a court order directing a government official to fulfill their official duties properly or correct an abuse of discretion.
Acting as the city attorney, John A. Gaylord, of Gust Rosenfeld PLC, filed a motion to dismiss the petition on Feb. 25, for failure to state a claim, failure to provide a notice of claim and failure to set forth a non-discretionary duty of the commission, which is a deliberative legislative body, that a court can compel.
“Mandamus is an extraordinary remedy issued by a court to compel a public officer to perform an act which the law specifically imposes as a duty,” Gaylord wrote.
Gaylord first asserted that Richards’ petition had failed to meet basic legal standards: “[M]ere conclusory statements are insufficient to state a claim upon which relief can be granted … [A] complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona’s notice pleading standard.”
To satisfy Arizona’s mandatory notice of claim statute, a plaintiff must file a notice of claim against a public entity and each public employee in court, but Richards skipped that necessary step. Under state law, a public entity cannot be sued unless a plaintiff properly files a notice of claim.
“A notice of claim is not required for writs because they do not seek any financial damages,” Richards, who is acting as her own attorney, said on March 14. “The issue he is trying to bring up is that historically you had to file a verified complaint with the petition for writ, but that just changed last month, where now you can just file the writ with no complaint. But the courts would not accept just the petition for writ, so I had to file the complaint as well.”
“Plaintiff’s failure to comply with the notice of claim requirement necessitates dismissal of the complaint as anything other than a vehicle for her petition for mandamus,” Gaylord asserts.
In light of the recent rule change, Gaylord asked the court to rule on whether Richards intended her complaint as a vehicle for petition for mandamus or if the complaint stands apart from her petition for writ.
“I filed both an amended complaint and a response to the motion to dismiss, but apparently I only needed to file the amended complaint as it counts as a response, so the defense asked me to choose which one to proceed with and I chose the amended complaint,” Richards said. Richards filed her amended complaint on Feb. 27.
Second, Richards failed to state a claim for which the court could grant relief, Gaylord wrote.
“Her factual allegations do not amount to a cause of action,” Gaylord asserts. “Her recitation leads to her ultimate request for mandamus, and the city therefore presumes that mandamus is the only relief sought. In short, plaintiff falls short of the Rule 8 pleading requirements and has failed to state a claim upon which relief can be granted, even taking her allegations as true. Accordingly, the city respectfully requests dismissal of the complaint as anything other than a vehicle for mandamus.”
“A writ of mandamus is not a typical civil lawsuit but rather an extraordinary judicial remedy,” Richards said. “At least that is what I have found in my research. I am representing myself and the attorney for the city in our required pre-trial conference agreed that notice of claim is not necessary for the writ, but he [Gaylord] is trying to argue the portion that is a complaint would have needed it if I am asking for damages, which I am not.”
Third, mandamus cannot command non-discretionary acts, such as the personal decisions made by members of a legislative body, which, in the opinion of the members of the body, are in the best interest of the citizens of the public entity, Gaylord wrote.
“The commission does not have any general duty to hold public hearings, to hold a public hearing whenever one is requested or to hold a public hearing upon the receipt of a complaint,” Gaylor further asserts. “Rather, a public hearing is held when, in the opinion of the commission, a hearing is both in the best interest of the citizens of the city and necessary.”
“Plaintiff cites to the above-subsections (a), (b), and (e), which are each controlled by the opening line, which states that the commission ‘may.’ This is an expressly discretionary matter, and therefore not subject to mandamus,” Gaylord wrote.
Regarding Ellis in his role as a city employee, “plaintiff cites [the] language in the job description of a community development director. A human resources job description is not a law, and it does not create a legal duty that can be compelled by mandamus,” Gaylord wrote. “Furthermore, the language she has cited is descriptive, which means it does not even purport to establish a duty. The language also does not say anything about setting public hearings or revoking CUPs. Plaintiff’s citation to the word ‘coordinate’ within the job description simply does not support the argument she is making.”
“Defendants respectfully request the dismissal of the complaint and the petition for a writ of mandamus,” Gaylord concluded. “Plaintiff’s complaint fails to state a claim upon which relief can be granted, and plaintiff did not file the requisite notice of claim. Further, the petition does not identify any mandatory duty of the commission to hold a public hearing on any alleged violations of the CUP. The holding of a hearing in these circumstances is an explicitly discretionary duty. Accordingly, mandamus cannot be granted.
“The complaint and petition, and therefore this original special action, should be dismissed with prejudice.”
