                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 RICHARD CLAXTON, Plaintiff/Appellant,

                                        v.

  ARIZONA BOARD OF EXECUTIVE CLEMENCY, Defendant/Appellee.

                             No. 1 CA-CV 18-0196
                               FILED 2-7-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-013458
             The Honorable Hugh E. Hegyi, Judge (Retired)

                      REVERSED AND REMANDED


                                   COUNSEL

Richard William Claxton, Phoenix
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Kelly Gillilan-Gibson
Counsel for Defendant/Appellee



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
                           CLAXTON v. ABOEC
                           Decision of the Court

C R U Z, Judge:

¶1            Richard Claxton appeals the superior court’s order declining
jurisdiction over his complaint challenging the revocation of his parole. For
the following reasons, we reverse and remand for further proceedings.

                  FACTS AND PROCEDURAL HISTORY

¶2            The Arizona Board of Executive Clemency (the “Board”)
released Claxton on parole in 2014. Three years later, Claxton became
involved in a custody dispute between his girlfriend, Laura Cavness, and
her daughter, Caitlin Cavness, concerning Laura’s son. As a result, Caitlin
and her husband, Carl Engstrand1, obtained an injunction prohibiting
Claxton from contacting them or Laura’s son. Claxton violated the
injunction by calling the son.

¶3            Caitlin and Engstrand notified Claxton’s parole officer that he
had violated the injunction. The officer instructed Claxton not to have any
contact with Caitlin, Engstrand, or Laura’s son—including through a third
party—and modified Claxton’s conditions of parole to include that
restriction. Claxton signed a written acknowledgement of the new
condition.

¶4            Claxton then allegedly contacted Engstrand through a third
party. Engstrand notified Claxton’s parole officer about the contact, and
the Department of Corrections (“Department”) arrested Claxton and
returned him to custody. Claxton requested a revocation hearing, after
which the Board determined he had violated the terms and conditions of
his supervision and revoked his parole.

¶5            Claxton filed a complaint in the superior court seeking special
action relief directing the Board to schedule a new hearing at which he
could call and cross-examine witnesses and present additional evidence.
He asserted that the Board denied him due process of law because it did
not allow him to cross-examine his parole officer or Engstrand, did not
allow his witness to finish her testimony, and did not allow him to take a
polygraph test.

¶6           He also asked the court to declare, under Arizona’s
Declaratory Judgments Act, Arizona Revised Statutes (“A.R.S.”) sections

1     The record and appellate briefs contain conflicting spellings of Mr.
Engstrand’s name. We adopt this spelling based on our review of the
record and the related custody case.


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                            CLAXTON v. ABOEC
                            Decision of the Court

12-1831 to -1846, that the Board’s revocation hearing violated his right to
call and cross-examine witnesses, denied him evidence he needed to prove
his defense, and did not comply with Department policies. He asked the
superior court to declare that there was no evidence to support the Board’s
determination that Claxton had violated the terms and conditions of his
parole.

¶7            The Board urged the superior court to decline jurisdiction of
Claxton’s complaint and dismiss the action, arguing he had waived his
right to present and cross-examine witnesses at the revocation hearing and
had not demonstrated he suffered any prejudice. The court declined
jurisdiction of the complaint “without prejudice to [Claxton] bringing his
claims as an appeal from a lower court order, rather than as a special
action.”2

¶8              Claxton timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1). See State v. Chopra, 241 Ariz. 353, 355, ¶ 8 (App. 2016)
(concluding § 12-2101(A)(1) confers appellate jurisdiction over the superior
court’s final judgment declining to accept jurisdiction over a special action).

                                DISCUSSION

¶9           Claxton argues the superior court abused its discretion by
declining special action jurisdiction of his complaint.

¶10            The superior court has discretion to accept or decline
jurisdiction over a special action, Stapert v. Ariz. Bd. of Psychologist Exam’rs,
210 Ariz. 177, 182, ¶ 21 (App. 2005), and we conduct a bifurcated review of
the court’s ruling. Chopra, 241 Ariz. at 355, ¶ 9. If the court accepted
jurisdiction, we review the decision on the merits. Id. If it declined
jurisdiction, “we determine only whether it abused its discretion by doing
so.” Id. Although the decision to accept jurisdiction is highly discretionary,
Carrington v. Ariz. Corp. Comm’n, 199 Ariz. 303, 305, ¶ 6 (App. 2000); Ariz.
R.P. Spec. Act. 3, State Bar Committee Note, the court abuses its discretion
if it commits an error of law in reaching its decision. Files v. Bernal, 200 Ariz.
64, 65, ¶ 2 (App. 2001); Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56



2       The superior court declined jurisdiction of the complaint and
certified under Arizona Rule of Civil Procedure 54(c) that no further
matters remained pending. We presume, therefore, that it also intended to,
and did, dismiss Claxton’s declaratory judgment claim.



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                            CLAXTON v. ABOEC
                            Decision of the Court

(1982) (noting the superior court may abuse its discretion by committing an
error of law in the process of reaching a discretionary decision).

¶11             Special action jurisdiction “is appropriate when no equally
plain, speedy, and adequate remedy by appeal exists.” State ex rel. Romley
v. Fields, 201 Ariz. 321, 323, ¶ 4 (App. 2001) (citations omitted); Ariz. R.P.
Spec. Act. 1(a). The superior court declined jurisdiction of Claxton’s
complaint, “without prejudice to [him] bringing his claims as an appeal
from a lower court order, rather than as a special action.” The court’s
decision to decline jurisdiction, therefore, appears to have been based upon
its belief that Claxton had an equally plain, speedy, and adequate remedy
by appeal. However, Claxton had no right to appeal the Board’s decision.
See Sheppard v. Ariz. Bd. of Pardons & Paroles, 111 Ariz. 587 (1975) (noting that
the Administrative Review Act [now the Judicial Review of Administrative
Decisions Act] does not apply to the Board of Pardons and Paroles [now the
Board of Executive Clemency]); cf. Rose v. Ariz. Dep’t of Corr., 167 Ariz. 116,
120-21 (App. 1991) (holding the [Judicial Review of Administrative
Decisions Act] does not provide judicial review of Arizona Department of
Corrections inmate disciplinary hearings and decisions).

¶12           Because the superior court based its decision to decline
special action jurisdiction on an error of law, it abused its discretion. Files,
200 Ariz. at 65, ¶ 2; Grant, 133 Ariz. at 455-56. Accordingly, we reverse the
court’s order declining jurisdiction and remand for the superior court to
reconsider Claxton’s complaint.

                                CONCLUSION

¶13          For the foregoing reasons, we reverse and remand for further
proceedings consistent with this decision.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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