1 Earlier orders of the court in this case designated the

defendant-appellee as Forever Living Products International, Inc.

following the caption from the court of appeals. The pleadings

from the parties list the defendants as “Aloe Vera of America,

Inc., (“AVA”) a Texas corporation, doing business as Maughan

Ranches, and Rex and Ruth Maughan, husband and wife.” We believe

the caption noted above most accurately lists the defendantsappellees in this case.

IN THE SUPREME COURT OF ARIZONA

En Banc

B.J. LOGAN and NANCY LOGAN, ) Arizona Supreme Court

husband and wife, ) No. CV-01-0367-PR

)

Plaintiffs-Appellants, ) Court of Appeals

) Division One

v. ) No. 1 CA-CV 00-0528

)

FOREVER LIVING PRODUCTS ) Yavapai County Superior

INTERNATIONAL, INC., ALOE VERA OF ) Court

AMERICA, INC., a Texas ) No. CV 97-0748

corporation doing business as )

MAUGHAN RANCHES, and REX and RUTH )

MAUGHAN, husband and wife,1 )

) OPINION

Defendant-Appellee. )

)

___________________________________)

Appeal from the Superior Court of Yavapai County

Honorable Robert M. Brutinel, Judge

REVERSED AND REMANDED

_________________________________________________________________

Memorandum Decision of the Court of Appeals

Division One

VACATED
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_________________________________________________________________

Law Offices of William R. Hobson Tempe

by William R. Hobson

and

Counters & Koelbel, P.C. Tempe

by Kevin Koelbel

Lisa Counters

and

Gil Shaw, Attorney and Counselor at Law Yarnell

by Gil Shaw

Attorney for Appellants

Quarles & Brady Streich Lang Phoenix

by Robert E. Miles

Edwin B. Wainscott

Kevin D. Quigley

Attorneys for Appellees

__________________________________________________________________

J O N E S, Chief Justice

Facts and Procedural History

¶1 This is a case of alleged wrongful termination.

Defendants Rex and Ruth Maughan own Maughan Ranches, a Yavapai

County property, leased to the Maughan’s corporation, Aloe Vera of

America, Inc. The employees, plaintiffs B.J. and Nancy Logan,

owners of a separate parcel of real property, maintain they were

discharged by Rex Maughan for not selling their property to him at

the price he demanded. On motion by the defendants, the trial

court dismissed the Logans’ wrongful discharge action for failure

to state a claim under the Arizona Employment Protection Act

(AEPA), Ariz. Rev. Stat. Ann. (A.R.S.) § 23-1501 (1995 and Supp.
2The complaint does not specify the type of work she was hired

to perform.

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2001). The court of appeals affirmed in a memorandum decision.

This court granted review and now vacates the decision of the court

of appeals and reverses the dismissal by the trial court. We have

jurisdiction based on article VI, § 5(3), of the Arizona

Constitution.

¶2 When a motion to dismiss for failure to state a claim is

granted, review on appeal necessarily assumes the truth of facts

alleged in the complaint. Donnelly Constr. Co. v.

Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294

(1984); Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519, 591 P.2d

1005, 1007 (App. 1979) (“A Rule 12(b)(6) motion to dismiss for

failure to state a claim, which assumes the complaint’s allegations

are true, attacks the legal sufficiency of the complaint”)

(citation omitted). The factual allegations are summarized below.

¶3 Rex Maughan hired B.J. Logan in 1994 to work as a cowboy.

He also hired Nancy Logan to work on an as-needed basis.2 The

Logans owned a parcel of property on State Route 89 in Peeples

Valley, Yavapai County. Approximately June 19, 1996, the Planning

and Zoning Board of Yavapai County granted the Logans a special use

permit to develop part of their land as a “mini-storage” garage.

¶4 Rex Maughan is the sole or majority stockholder of Aloe

Vera of America, Inc. In addition to the Aloe Vera business, Rex
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Maughan invests in real property. Ronald Walker is a real estate

agent who represents Rex Maughan. Approximately August 1, 1996,

Walker met with the Logans to inform them that Maughan wanted to

buy the Peeples Valley property.

¶5 The Logans initially stated that they were not interested

in selling, but later agreed to entertain an offer. The parties

were unable to come to terms regarding a sale or trade, though the

Logans offered to sell the property to Maughan for $550,000.

Approximately November 11, 1996, Walker informed the Logans that

Maughan rejected this offer. During that conversation, Walker

allegedly threatened the Logans that they would be fired if they

did not agree to sell the property to Maughan for $150,000 and that

Maughan would go to the Planning and Zoning Board to ensure that

the Logans would never get a permit for any commercial use of their

land.

¶6 Bud Maule also worked for Maughan in a position superior

to the Logans. Approximately November 27, 1996, Maule met with the

Logans and again asked them if they would sell their property to

Maughan at the price Maughan demanded. When they declined, they

were fired effective December 1, 1996. Maule indicated that he was

firing the Logans at Maughan’s direction because of their refusal

to sell the Peeples Valley property to Maughan and that the Logans

should have anticipated Maughan’s action. The issue in this case

is whether the Logans now have a wrongful discharge claim against
3 Although the wrongful discharge claim does not specifically

cite the AEPA or a statute embodying public policy, it will survive

a motion to dismiss if the facts as alleged demonstrate that the

Logans are entitled to relief under any provable theory. Veach v.

City of Phoenix, 102 Ariz. 195, 197, 427 P.2d 335, 337 (1967);

Mackey v. Spangler, 81 Ariz. 113, 115, 301 P.2d 1026, 1027 (1956).

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their former employer pursuant to the provisions of the AEPA.

Analysis

¶7 If the employees’ claim is cognizable under the statute,

the trial court erred in granting dismissal. Motions to dismiss

for failure to state a claim are not favored and should not be

granted unless it appears that the plaintiff should be denied

relief as a matter of law given the facts alleged.3 State ex rel.

Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983)

(citations omitted).

¶8 We begin our analysis with the statute. We review de

novo the interpretation of a statute. Arizona Dep’t of Revenue v.

Dougherty, 200 Ariz. 515, 517, 29 P.3d 862, 864 ¶7 (2001). When

doing so, our foremost goal is to discern and give effect to

legislative intent. Mail Boxes, Etc., U.S.A. v. Industrial Comm’n,

181 Ariz. 119, 121, 888 P.2d 777, 779 (1995).

¶9 The AEPA, which became law in 1996, allows, inter alia,

wrongful discharge claims against employers who terminate employees

in retaliation for “[t]he exercise of the right to be free from the

extortion of fees or gratuities as a condition of employment as

protected by § 23-202.” A.R.S. § 23-1501(3)(c)(viii). This
4 We are aware of the Attorney General’s opinion No. I88-010

dated January 15, 1988, in which that office opined that A.R.S. §

23-202 expressly applies to agents of the employer rather than the

employer itself. 1988 WL 249593 (Ariz. A.G.). That inquiry

involved the statute’s application, if any, to employers requiring

a minimal nonrefundable processing fee from applicants for

employment. That is not the situation here. Furthermore, the

Attorney General’s opinion does not constitute precedent regarding

statutory construction. Opinions of the Attorney General are due

our respect, but are advisory and not binding. Ruiz v. Hull, 191

Ariz. 441, 449, 957 P.2d 984, 992 (1998).

-6-

language clearly was adopted to preserve an employee’s right not to

be victimized by an employer’s extortion. Where an employee is

terminated by an employer for refusal to accept extortionate

demands by the employer, in violation of A.R.S. § 23-202, the

employee has a wrongful termination cause of action under the AEPA.

A.R.S. § 23-202

¶10 A.R.S. § 23-202 makes it a class 2 misdemeanor for

employers or their agents to extort money or property from

employees:

It is unlawful for a person charged or entrusted by

another with the employment or continuance in employment

of any workmen or laborers to demand or receive, either

directly or indirectly, from a workman or laborer

employed or continued in employment through his agency or

under his direction or control, a fee, commission or

gratuity of any kind as the price or condition of the

employment of the workman or laborer, or as the price or

condition of his continuance in such employment.

Prior to this case, section 23-202 had never been interpreted by an

appellate court.4 In discerning legislative intent, we look to the

statute’s policy, the evil it was designed to address, its words,

context, subject matter, and effects and consequences. Calvert v.
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Farmers Ins. Co. of Arizona, 144 Ariz. 291, 294, 697 P.2d 684, 687

(1985).

¶11 By its language, section 23-202 applies specifically to

persons “charged... with employment or continuance in employment

of workmen or laborers . . . .” The person “charged” may be a

foreman or a person acting as an agent of the employer, or the

person may be the employer himself. For purposes of the AEPA,

section 23-202's reference to agents of an employer is by no means

exclusive and was not, in our judgment, intended to insulate from

the reach of the AEPA employers who engage in extortionate conduct

by sending their agents to extort on the employer’s behalf.

¶12 The protection given to employees to be free from

extortion in the workplace under section 23-202 is one of the

express purposes of the AEPA. Reading the two statutes together,

a proper interpretation is that an employer who by his agent or by

his own action terminates an employee for refusing to be the victim

of workplace extortion is subject to a wrongful termination suit.

¶13 The statute is designed to prevent employers from

exacting fees, gratuities, commissions, kickbacks, or other forms

of remuneration from employees as a condition of continuing

employment or as a condition to obtaining employment in the first

instance. On this record, the Logans were victimized by the clear

equivalent of a demand for gratuities. A demand for property at a

price well below its potential worth is a demand for a gratuity.
-8-

The Logans’ continued employment was expressly conditioned on it.

¶14 We note further that the language of section 23-202 does

not indicate to whom the fee, commission, or gratuity is ultimately

to be paid. It may be destined for a foreman or agent and be

actually pocketed by him. Or, as in this case, it may be claimed

by the employer. Because the statute does not specify who

ultimately receives the ill-gotten gain, it encompasses either

scenario.

¶15 For purposes of wrongful termination claims under the

AEPA, it is not necessary that an actual violation of a statute

occur. Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370, 380,

710 P.2d 1025, 1035 (1985). In Wagenseller, there was no statutory

violation; rather, the employee alleged she was discharged for

refusing to violate a statute.

¶16 The same is true here. Accepting the facts stated in the

complaint as true, the Logans refused to sell their land at less

than a third of what they believed it was worth. For this, they

were fired. Subsection (3)(c)(viii) of the AEPA focuses on the

employer’s reasons for terminating the employee and permits a

wrongful termination claim where the employer terminates the

employee for rejecting an extortion attempt under section 23-202.

Because we find that the Logans’ claim exists under the statute as
5 We note also that the Logans may have a claim under

subsection (3)(c)(i) of the AEPA (where the employer terminates the

employee for a refusal to commit an act or omission that would

violate the Constitution of Arizona or the statutes of this state)

based on violations of A.R.S. §§ 23-202 or 13-1804(A)(8). Because

we find that the facts of this case allow a claim to be maintained

under subsection (3)(c)(viii), we need not address the possibility

of a (3)(c)(i) claim.

6 We note that the claim in Wagenseller would fit easily

within the statutory framework of the AEPA under subsection

(3)(c)(i). Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370,

710 P.2d 1025 (1985).

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a matter of law and the motion to dismiss was improperly granted,5

we need not reach the question, raised by our associate in a

separate concurring opinion, whether a common law cause of action

of the kind asserted by the Logans may still be asserted

independent of the AEPA.6

Conclusion

¶17 The Logans’ claim of wrongful termination exists under

subsection (3)(c)(viii) of the AEPA and therefore the trial court

erred in dismissing it. Accordingly, we vacate the decision of the

court of appeals and reverse the judgment of the trial court. The

case is remanded to the trial court with instructions to reinstate

the Logans’ cause of action.

________________________________

Charles E. Jones

Chief Justice
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CONCURRING:

____________________________________

Ruth V. McGregor, Vice Chief Justice

____________________________________

Rebecca White Berch, Justice

____________________________________

Nanette Warner, Judge

NOTE: Due to a vacancy on this court at the time this

case was decided, the Honorable Nanette Warner, Judge of

the Superior Court in Pima County, was designated to

participate in this case under article VI, § 3 of the

Arizona Constitution.

FELDMAN, Justice, specially concurring

¶18 The court today holds that the Logans may pursue a cause

of action because a provision of the Arizona Employment Protection

Act (AEPA) allows wrongful discharge claims against an employer who

terminates an employee in retaliation for the latter’s “exercise of

the right to be free from... extortion . . . as a condition of

employment . . . .” Ante at ¶ 9 (quoting A.R.S. § 23-

1501(3)(c)(viii) (AEPA)).

¶19 I have no quarrel with the result, but I believe the

court’s analysis avoids the most important issue in this case. I

write separately because I would have reached the same result by a

more direct route — the one we have followed in the past. We have
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held that an “employer may fire for good cause or for no cause. He

may not fire for bad cause — that which violates public policy.”

Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370, 378, 710 P.2d

1025, 1033 (1985).

¶20 Without question, the Logans’ discharge violated public

policy. As the court points out, Arizona law makes it a

misdemeanor for an employer to extract “either directly or

indirectly” a “fee . . . or gratuity of any kind” from an employee

as a “condition of [the employee’s] continuance in such

employment.” Ante at ¶ 10 (quoting A.R.S. § 23-202). If,

therefore, we needed a statute to set public policy on this point,

we have it. Thus, the Logans’ discharge in violation of the

state’s public policy is actionable with or without the AEPA.

¶21 One would suppose, moreover, that the court would agree

with the Logans’ submission and simply say that retaliatory firing

in these circumstances would violate the public policy of this

state even if there were no AEPA. Surely the court does not

require express legislation to authorize it to provide a remedy to

employees fired for refusing to submit to extortion. Nor should we

need a statute to provide a remedy to employees fired for returning

a jury verdict with which the employer disagreed, for refusing to

participate in the employer’s designated religious exercise, or for

reading books, newspapers, or magazines of which the employer

disapproved.
1See Cronin v. Sheldon, 195 Ariz. 531, 537-38 ¶ 28, 991 P.2d

231, 237-38 ¶ 28 (1999) (the “legislative preamble sets forth

notions repugnant to the [state’s] constitution . . . .”). 

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¶22 Wagenseller has not been overruled,1 and although it

recognizes the power of employers to fire at-will employees with or

without cause, it also teaches that our courts will provide a

remedy when employers use their power in a manner contrary to

public policy and thus violate the rights of their workers. No

employer should be given the power to fire, with impunity, because

an employee refused to give the employer a bargain price on his

home or other property or refused to paint the corporate logo on

the side of his home. See Ariz. Const. art. II, §§ 1 and 8,

setting forth policies promulgated by the framers of our

constitution. It would be a sad day when citizens could not look

to the courts to provide a remedy for such egregious wrongs.

¶23 Therefore, I would not duck the argument that we should

apply Wagenseller but would simply disapprove Johnson v. Hispanic

Broadcasters of Tucson, Inc., 196 Ariz. 597, 2 P.3d 687 (App.

2000), insofar as it may be interpreted to conclude that common-law

claims for wrongful termination are no longer cognizable. Id. at

599 ¶ 4, 2 P.3d at 689 ¶ 4. I would also disapprove Chaboya v.

American National Red Cross insofar as it reaches the same

conclusion. 72 F.Supp.2d 1081, 1092 (D.Ariz. 1999). I would stand

on what we previously said about the AEPA and terminations that
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violate public policy: the legislature may limit judicial remedies

only when it creates a cause of action otherwise not cognizable in

the courts, one that “originates exclusively within the statute,

would not otherwise exist, and cannot trace its antecedents to a

common law right of action.” Cronin v. Sheldon, 195 Ariz. 531, 539

¶ 39, 991 P.2d 231, 239 ¶ 39 (1999) (citing Alabam’s Freight Co. v.

Hunt, 29 Ariz. 419, 242 P. 658 (1926)). Surely we must acknowledge

that the common law recognized employees’ actions against employers

for tort and breach of contract. That really is the only question

presented in this case — whether termination for the reasons

alleged by the Logans is a tort or violates the contract of

employment.

¶24 I would answer that with an emphatic yes and reject the

idea that we must depend on the other branches of government to

permit us to open the doors of justice. See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 429, 102 S.Ct. 1148, 1154 (1982)

(discussing due process protection for litigants “hoping to protect

their property or... attempting to redress grievances.”); see

also Kluger v. White, 281 So.2d 1 (Fla. 1973); Saylor v. Hall, 497

S.W.2d 218 (Ky. 1973).

______________________________

STANLEY G. FELDMAN, Justice