                    SUPREME COURT OF ARIZONA
                             En Banc

DAVID BURNELL SMITH, a citizen    )   Arizona Supreme Court
and resident of the State of      )   No. CV-06-0021-PR/A
Arizona,                          )
                                  )   Court of Appeals
            Petitioner/Appellant, )   Division One
                                  )   No. 1 CA-SA 05-0292A
                 v.               )
                                  )   Maricopa County
ARIZONA CITIZENS CLEAN ELECTIONS )    Superior Court
COMMISSION, an agency of the      )   No. CV 2005-093310
State of Arizona; STATE OF        )
ARIZONA, a State of the United    )
States of America; STATE OF       )   O P I N I O N
ARIZONA ex rel. TERRY GODDARD,    )
ARIZONA ATTORNEY GENERAL,         )
                                  )
         Real Parties in Interest )
                      /Appellees. )
__________________________________)

        Appeal from the Superior Court in Maricopa County
                  Honorable Mark F. Aceto, Judge
                             AFFIRMED

                  Court of Appeals, Division One
            Memorandum Decision (filed Jan. 19, 2006)
                             AFFIRMED
________________________________________________________________

CHARLES M. BREWER, LTD.                                    Phoenix
     By   David L. Abney
Attorneys for David Burnell Smith

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                  Phoenix
     By   Diana L. Varela, Assistant Attorney General
          Jessica Gifford Funkhouser, Special Counsel
Attorneys for Arizona Citizens Clean Elections Commission,
     State of Arizona, Terry Goddard, Arizona Attorney General
________________________________________________________________

B E R C H, Vice Chief Justice

¶1        In 2004, David Burnell Smith was elected to serve in
the Arizona State Legislature as a Representative from District

7.    He chose to run as a publicly funded candidate.                             In return

for the receipt of public funds, he and the other participating

candidates      each    signed       a    form       promising      to    adhere    to     the

provisions of the Citizens Clean Elections Act, Ariz. Rev. Stat.

(“A.R.S.”) §§ 16-940 to -961 (Supp. 2005), and to the campaign

finance     rules      promulgated           by     the   Arizona        Clean     Elections

Commission.      See Ariz. Admin. Code (“A.A.C.”) R2-20-215 to -228.

The    Citizens      Clean      Elections           Act   provides        sanctions        for

violations      of     the     campaign       finance      laws,     including       fines,

criminal sanctions, and, for serious cases, removal from office.

A.R.S. § 16-942.

¶2           Following         an    investigation             of    Smith’s       campaign

expenditures,        the     Commission           determined    that      Smith    violated

campaign     finance         rules   by      spending      approximately          seventeen

percent more on his election than is permitted by law.                                     See

§ 16-942(C).         For that violation, the Commission decided that

Smith should forfeit his office.                     This is Smith’s final review

of    several   determinations           —    at    the   administrative          level,   on

review by the superior court, and following a decision by the

court of appeals — all affirming the Commission’s determination

that Smith violated campaign finance laws and must leave office

or concluding that Smith did not timely appeal the Commission’s

decision.


                                             - 2 -
¶3         On   January     26,    2006,       this    court   issued     an     order

denying Smith’s request for a stay of proceedings, granting his

petition for review, and affirming the judgment of the superior

court.     This      opinion      explains       our    reasoning.         We    have

jurisdiction    over    this     case    pursuant       to   A.R.S.   §   12-120.24

(2005) and Article 6, Section 5(3) of the Arizona Constitution.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

¶4         The factual and procedural background of this case is

lengthy.   Rather than set it forth in detail here, matters will

be set forth as necessary to the resolution of each claim.

                                 II.    DISCUSSION

A.    Constitutional Privilege

¶5         Smith raises a preliminary matter that, if resolved in

his favor, would obviate the need to address any other issue.

Accordingly,    we     address    it    first.         Smith   claims     that   this

litigation cannot proceed because, as a state legislator, he

enjoys a constitutional immunity to civil process during, and

for   fifteen   days    preceding,       the    legislative      session.        This

privilege is set forth in Article 4, Part 2, Section 6 of the

Arizona Constitution, which provides as follows:

      Members of the Legislature shall . . . not be subject
      to any civil process during the session of the
      Legislature, nor for fifteen days next before the
      commencement of each session.

¶6         We construe constitutional provisions in light of the



                                        - 3 -
purpose of the enactment and the “evil sought to be remedied.”

Ruth v. Indus. Comm’n, 107 Ariz. 572, 575, 490 P.2d 828, 831

(1971).         Although      there     is    little     history    surrounding      the

passage of Article 4, Part 2, Section 6,1 this court has noted

that    a     similar       provision    in     the    Federal     Constitution      was

designed to avert an arrest, either criminal or civil, that

would prevent a legislator from attending session.                            See Yuma

Greyhound Park, Inc. v. Hardy (Steiger), 106 Ariz. 178, 179, 472

P.2d 47, 48 (1970) (citing Long v. Ansell, 293 U.S. 76 (1934),

discussing Article 1, § 6 of the United States Constitution);

accord State v. Beno, 341 N.W.2d 668, 676 (Wis. 1984) (noting

that    the     Wisconsin      privilege,       worded    almost     identically      to

Arizona’s, is designed to ensure a legislator’s availability to

represent his constituents).                   The federal privilege provision

has been described as extending to “a subpoena ad respondendum,

aut testificandum, or a summons to serve on a jury” because such

seizures      of    the     person   would     preclude    a   representative       from

doing     his      public    duty.       Joseph       Story,   COMMENTARIES    ON    THE

CONSTITUTION OF THE UNITED STATES § 857 (1833).

¶7            That rationale does not pertain here.                    Smith is not

defending a suit brought by another.                   Instead, Smith has invoked


1
     See John S. Goff, THE RECORDS OF THE ARIZONA CONSTITUTIONAL
CONVENTION OF 1910, 902 (1991) (noting simply that the provision
was read, but reflecting no comments on it).

                                             - 4 -
the    jurisdiction            of    the    courts.         On   January      24,    2006,    for

example, Smith filed a petition for review urging this court to

accept jurisdiction and reverse the court of appeals’ memorandum

decision,       which       affirmed         the    superior     court’s      judgment       that

Smith should forfeit his seat in the legislature.                              Had Smith not

invoked      the        jurisdiction        of     the   courts,    the    Clean     Elections

Commission’s removal order would have become final on September

8, 2005,2 and Smith’s removal from office would have occurred

more than fifteen days before the legislative session began.

¶8             A    legislator         may    not    seek    the    court’s     intercession

solely for the purpose of keeping alive a case that would remove

him from office, then claim immunity from participating in the

very    case       he    has    brought.           Having    participated       in    the    case

before the Commission during his last legislative term and lost,

and then having instituted suit and appeals in an attempt to

overturn        the        administrative            result,       Smith      cannot        claim

legislative immunity.

B.      The Stay Request

¶9             Smith requested that this court stay the effect of the

court     of    appeals’            order    finding      that     he   had    not    properly

appealed his case.              See ARCAP 7(c) (authorizing court to enter a

stay    to     preserve        the    status       quo   pending    review      of    a   case).

2
     The Commission’s order was dated August 25, 2005. As will
be discussed, Smith had fourteen days from that date to appeal.
See infra ¶¶ 22-26.

                                                 - 5 -
While        this    court    has    not        had     occasion      to     set   forth     the

analytical framework for evaluating requests for stays in the

appellate       context,      Arizona       courts       have    applied      to    such    stay

requests        the     traditional             criteria     for       the     issuance       of

preliminary injunctions, see Shoen v. Shoen, 167 Ariz. 58, 63,

804     P.2d        787,     792     (App.        1991)     (preliminary           injunction

standards); Burton v. Celentano, 134 Ariz. 594, 595, 658 P.2d

247, 248 (App. 1982) (same), as did the appellate court and the

parties       in     this    case.         We    find     the    construct         useful    and

therefore adopt it.

¶10            A party seeking a stay on appeal must thus establish

the following elements:

        1.     a strong likelihood of success on the merits;
        2.     irreparable harm if the stay is not granted;
        3.     that the harm to the requesting party outweighs
               the harm to the party opposing the stay; and
        4.     that public policy favors the granting of the
               stay.

See Shoen, 167 Ariz. at 63, 804 P.2d at 792; Burton, 134 Ariz.

at    595,     658    P.2d   at     248.         The    scale    is    not    absolute,      but

sliding.        Nor should the result turn on counting the factors

that weigh on each side of the balance.                               Rather, “the moving

party may establish either 1) probable success on the merits and

the possibility of irreparable injury; or 2) the presence of

serious questions and [that] ‘the balance of hardships tip[s]

sharply’” in favor of the moving party.                         Shoen, 167 Ariz. at 63,



                                                - 6 -
804 P.2d at 792 (quoting Justice v. Nat’l Collegiate Athletic

Ass’n, 577 F. Supp. 356, 363 (D. Ariz. 1983)).                      The greater and

less    reparable      the    harm,      the   less   the    showing   of    a   strong

likelihood of success on the merits need be.                    Conversely, if the

likelihood of success on the merits is weak, the showing of

irreparable harm must be stronger.

¶11          We applied these criteria to Smith’s request for a

stay.     Because we concluded, for the reasons set forth below,

that Smith would not succeed on his claims and that the judgment

of the superior court should be affirmed, we denied his stay

request.

C.      The Merits

             1.      Removal only by impeachment or recall

¶12          Smith’s primary claim is that he can be removed from

office only by “impeachment or recall” and then only for the

reasons set forth in the constitution.                      He bases his claim on

Article 8, Part 2, Section 1 of the Arizona Constitution, which

provides    that,      on    vote   of    two-thirds    of    the   members      of   the

Senate, a state officer may be removed from office for “high

crimes, misdemeanors, or malfeasance in office.”

¶13          The argument that a state officer may be removed from

office    only    as    prescribed        in   the    constitution     was    squarely

raised and rejected in State ex rel. DeConcini v. Sullivan, 66

Ariz. 348, 355, 188 P.2d 592, 596 (1948).                       In Sullivan, this


                                          - 7 -
court observed that while the constitution may limit legislative

powers, unless a power is expressly or by implication precluded,

the legislature retains power to act.          Id. at 356-57, 188 P.2d

at 597.      The court concluded that Article 8, Part 2 does not

limit the power of the legislature to devise additional methods

of and causes for removal and therefore does not provide the

exclusive means of removal from public office.          Id. at 357, 188

P.2d   at     598;    cf.   A.R.S.    §   1-253(B)   (2002)    (permitting

“impeachment, removal, deposition or suspension” from office for

certain offenses, even if the offense does not specify removal

from office as a potential penalty).         If, as Smith contends, the

constitutional means were exclusive, the legislature would be

unable to enact laws allowing removal of one who had become

mentally incompetent or physically unable to hold office.                 As

this court noted in Sullivan, that constitutional provision was

intended to protect the public by making it easier to remove

public officers, not to protect malfeasing public servants.               66

Ariz. at 358-59, 188 P.2d at 599.

¶14          In this case, the public, acting in its legislative

capacity, authorized removal from public office as a sanction

for serious violations of the campaign finance laws.            See A.R.S.

§ 16-942(C).         Smith agreed to abide by those terms when he

sought to finance his campaign with public funds.             A.R.S. § 16-

947(A),     (B)   (requiring   participating   candidates     to   file   an


                                     - 8 -
affidavit         with        the     Secretary            of    State’s             Office        pledging

adherence         to    campaign          finance         laws).         His      removal          was    not

precluded by any provision of the Arizona Constitution.

¶15           Smith counters that Holmes v. Osborn, 57 Ariz. 522,

115 P.2d 775 (1941), “held” that impeachment and recall are the

sole    means      of     removing         elected         officials        from          office.         The

language on which he relies from that case, however, is dictum,

as that case dealt with the legislature’s unquestioned power to

provide      the       means    for       removal         of    members         of    the        Industrial

Commission.            Id. at 537, 115 P.2d at 782.                      Moreover, the records

of     the    Arizona         Constitutional               Convention           suggest           that    the

drafters of our constitution anticipated that the legislature

could    devise         other       grounds      for      removal.              See       John    S.     Goff,

RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1910, 921-22 (1991)

(noting      that       “there       is    no    need      to    make       a    provision          in    the

constitution”           for     removal         of   elected       officials              and     executive

appointees because “the legislature will have the power to do

that without authorization in the constitution”).                                            Impeachment

is     therefore         not     the       sole      means        of     removal            for     elected

officials, nor are the reasons for removal limited to those

listed       in    Article          8,     Part      2,        Section      2        of     the     Arizona

Constitution.

¶16           Smith’s          claim      that       he    cannot      be       removed          except    by

impeachment or recall fails.


                                                  - 9 -
             2.      Failure to timely appeal

                     a.     Background

¶17          The     superior         court       held,    and     the    court    of    appeals

agreed,   that     Smith        failed       to    timely    appeal       the     Commission’s

decision that he had overspent his campaign limits and therefore

must forfeit his office.                   We agree that Smith failed to timely

appeal.

¶18          Determining the procedure for review of administrative

decisions     involves       the      interpretation          of    rules       and    statutes,

which   we   review        de    novo.         Pima       County    v.    Pima     County     Law

Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119

P.3d 1027, 1030 (2005).                    We apply the same rules in construing

both statutes and rules.                    State ex rel. Romley v. Martin, 205

Ariz. 279, 281, ¶ 6, 69 P.3d 1000, 1002 (2003).                                   To determine

whether Smith’s appeal was timely, some procedural background is

necessary.

¶19          On    March        25,    2005,       following       its    investigation        of

Smith’s      campaign       spending,             the     Citizens        Clean        Elections

Commission     issued       an     Order      and       Notice     of    Appealable       Agency

Action.       That        preliminary         order       concluded        that       Smith   had

violated the Clean Elections Act and must forfeit his seat in

the legislature.            The order would have been final had Smith

elected to take no further action in the case.                                  But the order

advised      Smith        that        he     could        appeal        “pursuant       to    the


                                              - 10 -
Administrative Procedures Act,” A.R.S. §§ 41-1092 to -1092.12

(2004 & Supp. 2005), within thirty days, and Smith pursued this

avenue    of     redress       by     requesting         a     hearing      before     an

administrative law judge (“ALJ”).

¶20          On August 22, 2005, following a two-day hearing, the

ALJ issued a lengthy decision concluding that the Commission had

carried its burden of proving its case and recommending to the

Commission     that       Smith’s   appeal     be    denied.          The   Commission

adopted   that       recommendation       three    days      later,   on    August    25,

2005,    incorporating        in    its    Final    Order      the    ALJ’s   detailed

findings of fact and conclusions of law and issuing sanctions of

repayment of public funds, a fine, and forfeiture of office.

¶21          Smith sought review of the August 25 order in two

ways:     First, he filed a Motion for Rehearing or Review on

September      23,    2005;    that    motion      was       denied   on    October    4.

Second, on September 26, 2005, he filed a complaint for judicial

review in superior court.

                     b.     Waiver of fourteen-day rule

¶22          The statute providing for judicial review of Citizens

Clean Election Commission rulings, A.R.S. § 16-957(B), provides

that “[t]he violator has fourteen days from the date of issuance

of the order assessing the penalty to appeal to the superior

court.”     Smith’s appeal, filed September 26, was filed more than

fourteen days after the Commission’s August 25 order assessing


                                          - 11 -
the penalty of removal from office.              Smith, however, argues that

for several reasons his appeal was nonetheless timely.

¶23         Smith     first    argues     that   the   Commission’s      March    25

order waived the jurisdictional appeal time set forth in A.R.S.

§ 16-957(B) and “gave Representative Smith extended appellate

deadlines” that became applicable five months later, on August

25, after the Commission’s ruling became final.                    His claim is

not clear, but he appears to contend that permitting him to

pursue redress through the administrative process rather than

requiring      him    to    appeal    the    March     25    preliminary       order

immediately to superior court precludes the Commission and the

courts from demanding timely adherence to the fourteen-day time

limit     imposed     by    A.R.S.    §   16-957(B)       following    the     final

administrative determination.              This argument misapprehends the

administrative review structure and misconstrues the record.

¶24         The administrative rules that supplement the statutory

processes for obtaining review of administrative actions by the

Clean Elections Commission, A.A.C. R2-20-214 to -231, provide

any   person    who   has     been   administratively       sanctioned    the    due

process     right      to      challenge       the     decision       within     the

administrative        structure,      pursuant       to     the   Administrative

Procedures Act (“APA”), A.R.S. §§ 41-1092 to -1092.12.                           The

March 25 order notified Smith of this right, after which Smith

requested and was afforded this process.                  The Commission’s March


                                      - 12 -
25 notice to Smith that he could file an administrative appeal

did not nullify the fourteen-day time limit for seeking judicial

review once the administrative hearing process had resulted in a

final administrative order.             Rather, the order simply stayed the

effectiveness of the Commission’s order while Smith exhausted

the available administrative process.

¶25          It is well settled that the time for filing an appeal,

whether by appeal or by complaint for judicial review following

the conclusion of the administrative process, is jurisdictional.

See Ariz. Comm’n of Agric. & Horticulture v. Jones, 91 Ariz.

183, 187, 370 P.2d 665, 668 (1962); Ariz. Dep’t of Econ. Sec. v.

Holland, 120 Ariz. 371, 372, 586 P.2d 216, 217 (App. 1978).                      The

Commission    has    no    power   to    waive   it   because    the   failure   to

timely appeal “deprive[s] th[e] court of jurisdiction to review

the [administrative] decision.”             Holland, 120 Ariz. at 372, 586

P.2d at 217; see also Jones, 91 Ariz. at 188, 370 P.2d at 669.

¶26          Smith points to no language in the Commission’s March

25 order purporting to excuse the time limits of A.R.S. § 16-

957(B), and we find none.           The order advises Smith only that he

has   the    right    to     administratively         appeal     the   preliminary

determination that he has violated campaign finance rules by

invoking     the     procedures     set     forth     in   the     Administrative

Procedures Act.        It confirmed the procedure that existed as a

matter of law.        The Commission did not waive the provisions of


                                        - 13 -
A.R.S. § 16-957(B) by any language in the March 25, 2005 order.3

                   c.      Premature appeal

¶27        Smith claims that the Complaint for Judicial Review he

filed in superior court on September 26 should be considered a

“premature”     appeal     that    sprang    to   life    after   the   Commission

subsequently issued its October 4 order denying Smith’s Motion

for   Rehearing    or    Review.      He    maintains     that    the   appeal   was

timely because, while it was filed eight days before the ruling

appealed from, it nonetheless came “within” fourteen days of the

Commission’s issuance of the order assessing the penalty.

¶28        On     August    25,    2005,    the   Clean   Elections     Commission

adopted the ALJ’s decision and recommendation and entered the

Commission’s “Final Order,” which assessed penalties requiring

repayment of $34,625.09 to the Clean Elections Fund, imposing a

civil penalty of $10,000, and requiring Smith to forfeit his

public office.

¶29        Smith had the right to seek judicial review of that

decision   pursuant        to   the   Judicial     Review    of    Administrative

Decisions Act (“JRADA”), A.R.S. §§ 12-901 to -914 (2003), which


3
     Smith seems to confuse the right to administrative appeal
within the administrative process pursuant to the APA, found in
Title 41, with judicial review of the ultimate administrative
order pursuant to the Judicial Review of Administrative
Decisions   Act   (“JRADA,”   sometimes  formerly  called   the
Administrative Review Act), found in Title 12.      A statement
regarding Smith’s rights under the APA did not affect later-
attaching rights under the JRADA.

                                      - 14 -
allows thirty-five days to file an appeal.                  A.R.S. § 12-904(A).

The provisions of the JRADA do not apply, however, if a more

definite     procedure    is     set    forth     in     “the    act     creating    or

conferring power on an agency or a separate act.”                        A.R.S. § 12-

902(A)(1).      If    more      definite      provisions        exist,    those     more

specific provisions control.                 Id.; see also Ariz. State Tax

Comm’n v. Phelps Dodge Corp., 116 Ariz. 175, 177, 568 P.2d 1073,

1075 (1977) (observing that specific statutes displace general

statutes).      In    this      case,    the     Clean    Elections       Act     itself

contains   a   definite      term      for   appeals:       A.R.S.       §   16-957(B)

requires that appeals be taken no later than “fourteen days from

the date of issuance of the order assessing the penalty.”                            The

time to appeal is jurisdictional; any appeal not filed within

the stated period is barred.            A.R.S. § 12-902(B).

¶30          The penalty-assessing order in this case was issued on

August 25, 2005.          Smith’s appeal should therefore have been

filed on or before September 8.                  Smith filed nothing between

August 25 and September 8.

¶31          On September 23, however, Smith filed a Motion for

Rehearing or Review.         He did so pursuant to an invitation in the

last   paragraph     of   the   Commission’s       August       25   “Final     Order,”

which contains the following directions to the aggrieved party:

       Pursuant to A.R.S. § 41-1092.09, any party that is
       aggrieved by this Order may file with the Commission,
       not later than thirty (30) days after service of this


                                        - 15 -
        decision, a written motion for rehearing or review
        . . . .   In the alternative, any party may file an
        action for judicial review in the Superior Court of
        Arizona, pursuant to A.R.S. § 16-957(B) and A.A.C. R2-
        20-228.

Under    the    JRADA,       a    motion     for     rehearing      tolls     the    time   to

appeal.          See     A.R.S.         §      12-901(2)        (providing          that    no

administrative order is final until any motion for rehearing or

review has been decided).               Smith therefore claims that his time

to appeal was extended until the disposition of the rehearing

motion.

¶32            Smith’s       argument        fails    because       A.R.S.    §     16-957(B)

expressly requires that an appeal must be taken no later than

“fourteen days from the date of issuance of the order assessing

the penalty.”          In this case, the penalty-assessing order was

issued on August 25, 2005, and Smith did not file an action

within fourteen days of that date.                         Moreover, when that time

expired, Smith had not yet filed his motion for rehearing or

review.    His time to appeal therefore lapsed.

¶33            Even if section 12-901(2) applied, however, and would

have    extended       the       time   to    appeal       if   a    timely       motion    for

rehearing had been filed, Smith’s motion for rehearing was filed

too late to extend the time to appeal.                          Because the JRADA time

provisions       do    not       control      when    an    administrative          agency’s

statute provides a definite appeal time, it follows that the

Citizens Clean Elections Act’s fourteen-day appeal provision for


                                             - 16 -
seeking judicial review cannot be extended by a rehearing motion

filed after the fourteen days have expired.                      The Commission may,

by its August 25 order, have bound itself to consider Smith’s

rehearing motion, but it could not have conferred jurisdiction

on the superior court to consider an untimely appeal.

¶34         We recognize that Smith might have been misled by the

language in the Commission’s August 25 Final Order regarding the

filing of a motion for rehearing or review.                       But even assuming

that he was misled by the August 25 order to believe that a

motion for rehearing or review filed after the appeal time has

run can stay the effect of an otherwise final order, the fact

remains that even after the Commission denied the motion on

October   4,    2005,      Smith    took   no    action    in    the    fourteen   days

following that date to appeal his case.                         The record reflects

that   Smith        did   nothing    until      he   amended      his   September    26

complaint      on    October   28,    twenty-four         days    after   the   latest

possible appealable order.            Thus his appeal time expired.

¶35         If, on the other hand, the August 25 order is viewed

as the final “order assessing a civil penalty,” Smith filed his

September 26 complaint thirty-one days after the August 25 order

and his amended complaint, dated October 28, 2005, more than two

months after the August 25 order.                Under any state of the facts,

Smith failed to timely appeal the Commission’s order, and it




                                       - 17 -
became final.4          This court is not free to ignore the clear

statutory language of A.R.S. § 16-957(B) and create jurisdiction

in the superior courts where the legislature has provided to the

contrary.

¶36           Smith    seeks    to    avoid     the    consequences         of    the    late

filing of his appeal by arguing that the September 26 complaint

was timely because it was “within” fourteen days of the October

4     order   denying       rehearing    or     review.          Section         16-957(B),

however,      does    not   require     that    a     notice    of    appeal      be    filed

“within” a certain number of days of a ruling; it says that the

“violator has fourteen days from the date of issuance of the

order assessing the penalty to appeal.”                        Id. (emphasis added).

“From” means “after.”            Until an order has been entered, there

can be no appeal.           See A.R.S. § 12-909 (requiring complaint in

appeal from an administrative decision to contain a statement of

the findings and decision sought to be reviewed).

¶37           Smith asserts that Barassi v. Matison holds that an

appellate      court    may    exercise        jurisdiction          over   a    premature

appeal if the appellant displayed an intent to appeal, appellees


4
     For the reasons discussed supra ¶¶ 31-35, we encourage the
Commission to revise its form to avert any possible confusion in
future cases.    In this case, because Smith did not file his
complaint within thirty days of any relevant order and would not
have prevailed in any event on his claim that he could be
removed only by impeachment or recall, see supra ¶¶ 12-16, he
suffered no prejudice from any confusion that might have been
engendered by language in the Commission’s order.

                                        - 18 -
were not prejudiced, and the appeal was only mistakenly filed

early.   130 Ariz. 418, 636 P.2d 1200 (1981).                    Barassi, however,

creates only a limited exception to the final judgment rule that

allows a notice of appeal to be filed after the trial court has

made its final decision, but before it has entered a formal

judgment, if no decision of the court could change and the only

remaining task is merely ministerial.                    Compare id. at 422, 636

P.2d at 1204 (notice filed after issuance of minute entry but

before entry of the order), and Comeau v. Ariz. State Bd. of

Dental Exam’rs, 196 Ariz. 102, 106, ¶ 16, 993 P.2d 1066, 1070

(App. 1999) (notice filed after court issued unsigned minute

entry, but before clerk entered the judgment), with Baumann v.

Tuton,   180    Ariz.       370,   372,   884     P.2d    256,    258     (App.    1994)

(holding that notice of appeal filed while a motion for a new

trial was pending in the trial court did not confer jurisdiction

on the appellate court).

¶38         Smith     does     not   fall    under       the    Barassi    exception.

Before   filing       his     complaint     for    judicial       review,     he    had

requested      that   the     Commission    review        his    case   or,   in    the

alternative, grant him a new hearing.                     These are substantive

matters requiring the discretion of the decision-maker.                            They

are not ministerial tasks.            We noted in Barassi that appellate

courts should dismiss a case for lack of jurisdiction while such

a motion was still pending in the trial court.                          Barassi, 130


                                      - 19 -
Ariz. at 422, 636 P.2d at 1204.5                   Smith’s reliance on Barassi is

thus unavailing.

¶39         Beyond      this    limited          exception,      Arizona     courts      have

consistently and with good reason held that premature notices of

appeal    are    ineffective        because       they    disrupt      court    processes.

Baumann, 180 Ariz. at 372, 884 P.2d at 258.                       The better practice

is to give litigants “the opportunity to persuade the trial

court of its error so that the trial court’s ruling on a pending

motion    may    cure   any    error       and    obviate      the     necessity       for   an

appeal.”        Id.    (citation     omitted);        see      also,    e.g.,    Flagstaff

Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d

985, 990 (1978).         Requiring timely notices of appeals following

entry of final judgments also prevents two courts from assuming

jurisdiction and acting at the same time.                            See Clifton Power

Corp. v. Fed. Energy Reg. Comm’n, 294 F.3d 108, 110 (D.C. Cir.

2002).     Sound reasons thus support the rule that one may appeal

only from a final judgment.

¶40         In    short,       an   appeal        will     lie   only     from     a    final

administrative        order.        Any    person        who   fails    to   seek      review

“within     the       time    and     in     the     manner       provided       in      this

article . . . shall be barred from obtaining judicial review of

5
     Because we conclude that Barassi does not apply to Smith’s
situation, we do not consider his arguments that he meets the
further requirements of Barassi that he displayed an intent to
appeal, that the Appellees were not prejudiced, and that the
notice of appeal was only mistakenly filed prematurely.

                                           - 20 -
the   decision.”           A.R.S.      §    12-902(B)          (emphasis        added).            In

concluding that Smith’s action was barred, the superior court

and court of appeals simply followed established law.                                            Even

under the most charitable interpretation of the record, Smith’s

appeal was untimely.

             3.       Jury trial on quo warranto claim

¶41          Smith      next    claims           that       the     Arizona      Constitution

guarantees      him    the     right       to    a     jury    trial      on    the    Attorney

General’s request for a writ of quo warranto to remove him from

office.     We review such legal questions de novo.                              See US West

Commc’ns, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242, 244, ¶ 17,

34 P.3d 351, 353 (2001).

¶42          The    Attorney     General          is    authorized         to    bring       a    quo

warranto action to oust from office “any person who usurps,

intrudes into or unlawfully holds or exercises any public office

. . . within the state.”                        A.R.S. § 12-2041(A) (2003).                        On

October   20,      2005,     sixteen       days        after      the    Commission      denied

Smith’s request for a rehearing, after the time for filing a

complaint     for      judicial        review          of     the       Commission’s         final

administrative decision had run, the Attorney General filed a

petition for a writ of quo warranto to have Smith removed from

his public office.             At that time, the administrative review

process   was      final.       The    Commission’s               findings      of    fact       were




                                           - 21 -
conclusive,        as   was    the    Commission’s      legal      determination    that

Smith must forfeit his office.

¶43           In response to the Attorney General’s complaint, Smith

asserted a right to a jury trial pursuant to Article 2, Section

23 of the Arizona Constitution, which guarantees that “[t]he

right of trial by jury shall remain inviolate.”                              This court

recently observed, however, that Arizona’s jury trial provision

merely preserves a right to jury trial if such a right existed

at common law; it does not create a right where none existed

before.     See Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 8, 104

P.3d   147,    150      (2005).        As    the     court   of    appeals    correctly

concluded, that right has never extended to civil cases that

turn   on   uncontested         facts.        Smith     v.   Ariz.       Citizens   Clean

Elections Comm’n, 1-CA-SA 05-0292A, slip op. ¶¶ 65, 67-68 (Ariz.

App. Jan. 19, 2006) (mem. decision); see also K.B. v. State Farm

Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App.

1997) (stating that the rules of civil procedure do not require

jury trial if no facts are in dispute).

¶44           In    this      case,   we    must     resolve      only    whether   Smith

timely appealed, a matter controlled by law.                        See A.R.S. § 16-

957(B).     As a matter of law, when the deadline passed without

Smith having filed a timely complaint for judicial review, he

lost his right to appeal.               See State v. Dawson, 164 Ariz. 278,

280, 792 P.2d 741, 743 (1990).                 Because no fact question arises


                                            - 22 -
from these circumstances, there is no right to a jury trial.

See Preston v. Denkins, 94 Ariz. 214, 221, 382 P.2d 686, 690

(1963).       While     contested     facts      might    arise        if   we   were

determining whether Smith overspent, Smith’s failure to timely

appeal removes that question from the case.

¶45          Smith cites State ex rel. Bullard v. Jones, 15 Ariz.

215, 222, 137 P. 544, 547 (1914), in support of his quest for a

jury trial, incorrectly stating that this court held that one is

entitled to a jury trial in quo warranto proceedings.                            More

correctly, the court observed, in dictum, that “issues of fact

arising in quo warranto proceedings were triable by jury.”                        Id.

(emphasis added) (quoting II BAILEY ON HABEAS CORPUS § 328).                     That

statement is correct.         But, as noted, there are no facts extant

here for a jury to decide.

¶46          Smith’s demand for a jury trial therefore fails.

             4.      Declaratory    judgment     action    as     an    independent
                     lawsuit

¶47          Smith    next   claims      that   his   September        26   complaint

should stand on its own as a self-sufficient lawsuit raising

constitutional challenges to the Citizens Clean Elections Act

that   are   independent     of    his    challenges      to    the    Commission’s

rulings against him.         These claims, he asserts, are not subject

to the fourteen-day time limit imposed by A.R.S. § 16-957(B).

¶48          To the contrary, a party may not use a complaint for



                                      - 23 -
declaratory relief as a substitute for a timely complaint for

judicial review of an administrative order.                 Smith was required

to raise all of his challenges to the Commission’s actions and

his   related   constitutional     claims    in   a   timely    complaint   for

judicial review under the JRADA.             See Hurst v. Bisbee Unified

Sch. Dist. No. Two, 125 Ariz. 72, 75, 607 P.2d 391, 397 (App.

1979)    (stating     that       constitutional        challenges     to     an

administrative act must be raised through appeal of the final

agency decision); see also Thielking v. Kirschner, 176 Ariz.

154, 156, 859 P.2d 777, 779 (App. 1993) (noting that “[a] party

. . . cannot substitute a declaratory relief action for a timely

appeal” of an administrative decision).

¶49        The reasons for requiring challenges to administrative

actions to be raised in appeals from agency decisions rather

than in separate declaratory judgment actions parallel those for

requiring notices of appeals to be timely filed following an

agency’s final decision:         cases should proceed in only one forum

at a time, and administrative decisions should become final on

an identifiable date.        If independent collateral challenges to

the constitutionality of the underlying statutes were allowed,

agency decisions would not be final until the time for filing

declaratory judgment actions has run.                 Id.      The appropriate

method   for    raising   such    claims     is   a   timely    complaint   for

judicial relief filed pursuant to the JRADA.


                                    - 24 -
¶50         Smith’s untimely complaint therefore does not survive

as an independent lawsuit on the merits of this claim or any

other of his substantive claims.

                              III.   CONCLUSION

¶51         The issues Smith has raised are not novel nor, in the

circumstances of this case, is Smith shielded by legislative

immunity.      The   record    shows     that   Smith   was   afforded   all

appropriate process in the administrative proceedings, and he

simply failed to timely pursue review of the Commission’s Final

Order.

¶52         We therefore grant the Petition for Review, but deny

relief.     We affirm the judgment of the superior court and the

memorandum decision of the court of appeals.


                              _______________________________________
                              Rebecca White Berch, Vice Chief Justice

CONCURRING:


_____________________________________
Ruth V. McGregor, Chief Justice


______________________________________
Michael D. Ryan, Justice


______________________________________
Andrew D. Hurwitz, Justice


______________________________________
W. Scott Bales, Justice


                                     - 25 -
