Do v. Arizona Bd. Of Regents, No. 1 CA-CV 22-0752 (App. Div. I, October 19, 2023( (J.Foster) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2023/Do%20v.%20ABOR%20-%20Final.pdf

WHERE ADMINISTRATIVE AGENCY HAS NO RULE GOVERNING HOW TO NOTIFY A PARTY OF ITS DECISION, A.R.S § 12-904(A) REQUIRES PERSONAL SERVICE OR SERVICE BY CERTIFIED MAIL TO TRIGGER APPEAL TIME FROM THAT DECISION

Plaintiff challenged her “E” grade in Arizona State University nursing college.  The Edson Grievance Committee held a hearing and notified plaintiff via e-mail that it was upholding the grade.  Nine months later plaintiff filed a notice of appeal to superior court. The Arizona Board of Regents' {ABOR] motion to dismiss the appeal on the grounds it was untimely (A.R.S. § 12-904) was granted by the superior court. Plaintiff then appealed to the Arizona Court of Appeals which reversed and remanded.

Plaintiff claims the 35-day window to appeal the Grievance Committee ruling under A.R.S § 12-904(A) never began to run because notice by e-mail does not comply with the statute.

The statute provides:

The method of service of the decision shall be as provided by

law governing procedure before the administrative agency, or

by a rule of the agency made pursuant to law, but if no

method is provided a decision shall be deemed to have been

served when personally delivered or mailed by certified

mail to the party affected at the party's last known residence

or place of business.

This default notice requirement applies here. While there is authority for the proposition that “actual” notice suffices in the face of a procedural failure, these cases primarily address deviation from a court rule. Here the notice requirement is statutory, and the court should not be second-guessing the state legislature when the language of a statute is clear and unambiguous.  The statute does not allow for notice via e-mail nor except compliance if there is actual notice.