IN THE

SUPREME COURT OF THE STATE OF ARIZONA

LEGACY FOUNDATION ACTION FUND,

Plaintiff/Appellant,

v.

CITIZENS CLEAN ELECTIONS COMMISSION,

Defendant/Appellee.

No. CV-16-0306-PR

Filed January 25, 2018

Appeal from the Superior Court in Maricopa County 

The Honorable Crane McClennen, Judge

No. LC2015-000172

AFFIRMED

Memorandum Decision of the Court of Appeals, Division One

1 CA-CV 15-0455

Filed Nov. 15, 2016

VACATED

COUNSEL:

Brian M. Bergin, Bergin, Frakes, Smalley & Oberholtzer, PLLC, Phoenix; 

Jason B. Torchinsky (argued), Holtzman Vogel Josefiak Torchinsky, PLLC,

Warrenton, VA, Attorneys for Legacy Foundation Action Fund

Mary R. O’Grady, Joseph N. Roth (argued), Nathan T. Arrowsmith, Osborn 

Maledon, P.A., Phoenix, Attorneys for Citizens Clean Elections 

Commission
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

2

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES 

BRUTINEL, TIMMER, and GOULD, and JUDGE PHILIP G. ESPINOSA

joined.*

JUSTICE BOLICK, opinion of the Court:

¶1 This case presents the question whether the fourteen-day time 

limit for an appeal of a Citizens Clean Elections Commission (the 

“Commission”) decision under A.R.S. § 16-957(B) applies when the party 

challenges the Commission’s personal and subject-matter jurisdiction. We 

hold that it does.

BACKGROUND

¶2 Legacy Foundation Action Fund (“Legacy”) is a nonprofit 

organization that seeks to educate the public on governmental policy 

issues. In March and April of 2014, Legacy funded a television 

advertisement that aired on multiple occasions criticizing then-Mesa Mayor 

Scott Smith’s record as President of the U.S. Conference of Mayors. Smith 

had previously announced his candidacy for governor.

¶3 A complaint was filed with the Commission alleging that the 

ads constituted “express advocacy” against Smith’s campaign for governor

and that Legacy failed to file certain disclosure reports in violation of the 

Citizens Clean Elections Act, A.R.S. §§ 16-940 to -961 (“CCEA”). The 

Commission found probable cause to believe that Legacy had violated the 

CCEA and assessed a civil penalty, and Legacy requested an administrative 

hearing. The administrative law judge (“ALJ”) concluded that the ads did 

not constitute express advocacy and, therefore, the Commission lacked 

 

*Justice John R. Lopez IV has recused himself from this case. Pursuant to 

article 6, section 3 of the Arizona Constitution, the Honorable Philip G. 

Espinosa, Judge of the Arizona Court of Appeals, Division Two, was 

designated to sit in this matter.
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

3

statutory authority to assess the penalty. The Commission rejected the 

ALJ’s recommendation, affirmed its earlier order and penalty, and entered 

a final administrative decision against Legacy on March 27, 2015.

¶4 Eighteen days after the Commission’s final decision, Legacy 

filed an appeal in superior court. Legacy argued that the Commission 

lacked personal and subject-matter jurisdiction because the ads did not 

constitute direct advocacy. The court dismissed the appeal because it was 

not filed within fourteen days of a final Commission penalty decision as 

required by A.R.S. § 16-957(B). The court of appeals affirmed. Legacy Found.

Action Fund v. Citizens Clean Elections Comm’n, 1 CA-CV 15-0455, 2016 WL 

6699308, at *1 ¶ 1 (Ariz. App. Nov. 15, 2016) (mem. decision).

¶5 Whether § 16-957(B)’s time limit applies to a direct appeal of

the Commission’s penalty decision when the appellant challenges the 

Commission’s jurisdiction is a recurrent issue of statewide importance. We 

have jurisdiction under article 6, section 5(3) of the Arizona Constitution 

and A.R.S. § 12-120.24.

DISCUSSION

¶6 Ordinarily “[w]e review an order granting a motion to 

dismiss for abuse of discretion,” Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11 

(2006), but “[d]etermining the procedure for review of administrative 

decisions involves the interpretation of rules and statutes, which we review 

de novo.” Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz. 407, 412 

¶ 18 (2006).

¶7 An aggrieved party generally has thirty-five days to appeal a 

final administrative decision. A.R.S. § 12-904(A). However, the CCEA 

provides a fourteen-day time limit for appeals from Commission penalty 

orders. § 16-957(B) (“The violator has fourteen days from the date of 

issuance of the order assessing the penalty to appeal to the superior 

court . . . .”). Legacy failed to file its direct appeal in the superior court 

within that limited time frame.
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

4

¶8 Failure to file a timely appeal from an agency decision 

deprives the court of jurisdiction to hear the appeal, including issues of 

agency jurisdiction. Smith, 212 Ariz. at 413 ¶ 25 (stating that “the time for 

filing an appeal, . . . following the conclusion of the administrative process, 

is jurisdictional”). Thus, we are “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.” Id. at 414 ¶ 35.

¶9 Legacy asserts that an exception to this rule exists to challenge

an agency’s subject-matter or personal jurisdiction. Legacy argues that the 

secretary of state has exclusive jurisdiction over the matter at issue because 

its ad was not express advocacy. See § 16-941(D) (requiring reporting of 

certain independent expenditures to the secretary of state).1 An order is 

void if it exceeds the jurisdiction of the court or agency rendering it. See, 

e.g., Am. Asphalt & Grading Co. v. CMX, LLC, 227 Ariz. 117, 119 ¶ 11 (2011) 

(acknowledging that “void judgments are those rendered by a court lacking 

jurisdiction over subject matter or parties” (citing Cockerham v. Zikratch, 127 

Ariz. 230, 234 (1980))); see also Brumfield v. La. State Bd. of Educ., 806 F.3d 289, 

291, 298 (5th Cir. 2015) (challenging jurisdiction under Federal Rule of Civil

Procedure 60(b)(4)); Dallas v. Ariz. Corp. Comm’n, 86 Ariz. 345, 348 (1959) 

(“We hold, therefore, that the action of the Commission canceling the 

certificate in question was entered without jurisdiction and such orders are 

declared to be void and of no effect.”).

¶10 Legacy cites cases in which allegedly void judgments were 

challenged through Arizona Rule of Civil Procedure 60 or special action 

long after the judgments were issued. See, e.g., Arkules v. Bd. of Adjustment, 

151 Ariz. 438, 440 (App. 1986) (concerning a special action challenge to an 

allegedly void board of adjustment decision); Nat’l Inv. Co. v. Estate of 

Bronner, 146 Ariz. 138, 140 (App. 1985) (concerning a Rule 60 challenge to 

an allegedly void judgment). Although Legacy apparently filed two special 

actions in superior court that were dismissed for failure to exhaust 

 

1 Legacy also raises First Amendment challenges to the Commission’s 

order. We do not consider them because they are beyond the scope of the 

question presented to the Court, and because Legacy does not explain how 

such substantive arguments can properly be raised in an untimely direct 

appeal.
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

5

administrative remedies, this action does not challenge the Commission’s 

jurisdiction through Rule 60, special action, or as a defense to an 

enforcement action. Rather, it does so through a direct appeal, the filing 

deadline for which is itself jurisdictional.

¶11 Legacy contends any statutory time limit is abrogated by 

§ 12-902(B), which provides:

Unless review is sought of an administrative decision within 

the time and in the manner provided in this article, the parties 

to the proceeding before the administrative agency shall be 

barred from obtaining judicial review of the decision. If 

under the terms of the law governing procedure before an 

agency an administrative decision becomes final because of 

failure to file any document in the nature of an objection, 

protest, petition for hearing or application for administrative 

review within the time allowed by the law, the decision is not 

subject to judicial review under the provisions of this article 

except for the purpose of questioning the jurisdiction of the 

administrative agency over the person or subject matter.

(emphasis added).

¶12 Legacy contends the highlighted language allows aggrieved 

parties to challenge the Commission’s jurisdiction through direct appeal 

notwithstanding the fourteen-day time limit for appealing Commission 

penalties under § 16-957(B). But that argument is unavailing. Section 12-

902 expressly does not apply “if the act creating or conferring power on an 

agency . . . provides for judicial review of the agency decisions and 

prescribes a definite procedure for the review.” § 12-902(A)(1). The CCEA 

provides for judicial review of Commission decisions and prescribes a 

definite procedure for the review; thus § 16-957(B), not § 12-902(B), applies.

¶13 Legacy relies upon two appeals court decisions—State ex rel. 

Dandoy v. City of Phoenix and Arkules v. Board of Adjustment—for the 

proposition that statutes of limitations (such as § 16-957(B)) do not apply to 

jurisdictional challenges. In State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 

334 (App. 1982), the party challenging an injunction based on an 
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

6

administrative consent order had failed to timely appeal that order. Id. at 

335–36. It nevertheless challenged the agency’s subject-matter jurisdiction 

to enter the consent order based on § 12-902(B). Id. at 336. The court rejected 

the argument but agreed that § 12-902(B) permits an untimely challenge if 

the agency lacked jurisdiction to enter its order. Id. at 336–37.

¶14 Arkules involved a special action in superior court challenging 

a local board’s jurisdiction after the plaintiffs learned the board had 

approved a variance. 151 Ariz. at 439. The court construed § 12-902(B) to 

provide that “an appeal from an administrative agency may be heard even 

though untimely to question the agency’s personal or subject matter

jurisdiction.” Id. at 440. From this, the court determined that the statute of 

limitations for a direct appeal was inapplicable and concluded that the 

special action was filed within a “reasonable time” after the board’s action. 

Id. We reject those opinions’ construction of § 12-902(B).

¶15 As explained previously, supra ¶ 12, § 12-902 by its terms does 

not apply where a statute creating an agency prescribes its own time limits 

for appeals. § 12-902(A)(1). And even if § 12-902(B) applies, its terms do 

not create the exception Legacy asserts. Section 12-902(B)’s first sentence 

sets forth a definitive rule: “Unless review is sought of an administrative 

decision within the time and in the manner provided in this article, the 

parties to the proceeding before the administrative agency shall be barred 

from obtaining judicial review of the decision.” The second sentence limits 

otherwise applicable appeal rights when “an administrative decision 

becomes final because of failure to file any document in the nature of an 

objection, protest, petition for hearing or application for administrative 

review within the time allowed by the law.” § 12-902(B); see Sw. Paint & 

Varnish Co. v. Ariz. Dep’t of Envtl. Quality, 194 Ariz. 22, 24 ¶ 10 (1999) (“We 

read § 12-902(B) as encompassing the traditional doctrine of exhaustion of 

administrative remedies . . . .”). Under those circumstances, “the decision 

is not subject to judicial review . . . except for the purpose of questioning the 

jurisdiction of the administrative agency over the person or subject matter.” 

§ 12-902(B). In other words, when a decision becomes final because of 

failure to exhaust administrative remedies, the time limit to appeal applies, 

and the party may only contest jurisdiction. Contrary to Legacy’s assertions

and to the court of appeals’ construction of this provision in Arkules and 

Dandoy, § 12-902(B) does not create an exception to the time allotted to take 
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

7

an appeal from a final agency decision. We therefore disavow the language 

in Arkules and Dandoy that construes § 12-902(B) to provide limitless

entitlement to challenge an administrative agency’s jurisdiction through 

direct appeal.

¶16 Quoting Arkules, Legacy also contends that “[s]tatutes of 

limitation or rules of court are not applicable to void judgments,” and 

therefore statutes stating time limits for appeals do not apply to 

jurisdictional challenges. 151 Ariz. at 440. This argument, however, 

conflates two distinct issues. The quoted language is based on decisions of 

this Court recognizing that a party may seek relief in the trial court from a 

void judgment beyond the six-month time limit that generally applies for 

seeking Rule 60(c) relief from a judgment. See Wells v. Valley Nat’l Bank of 

Ariz., 109 Ariz. 345, 347 (1973) (stating that “the mere lapse of time is no bar 

to an attack on a void judgment”); Preston v. Denkins, 94 Ariz. 214, 219 (1963) 

(observing that the “right to challenge a judgment on the ground that it is 

void for lack of jurisdiction . . . does not depend upon rules of the court or 

statute. . . . Statutes of limitations have no application to void judgments”).

¶17 These decisions are inapposite. Although a party may seek 

relief from a void judgment beyond the usual time limits, see Ariz. R. Civ. 

P. 60(c), that proposition does not suggest a party can belatedly do so 

through direct appeal under an applicable statute that contains specific time 

limits. Such provisions are not statutes of limitations but rather confer 

limited appellate jurisdiction subject to timely action by the appealing 

party. Failure to appeal in a timely manner thus deprives the appellate 

court (here the superior court) of jurisdiction.

¶18 In Smith, 212 Ariz. at 413 ¶ 25, we cited Arizona Department of 

Economic Security v. Holland, 120 Ariz. 371 (App. 1978), which explains this 

important distinction. In Holland, a party sought review of an allegedly 

void agency determination outside of the thirty-five-day time limit 

prescribed by A.R.S. § 12-904. Id. at 372. The appellant argued that the 

provision was a statute of limitations that had no effect on a challenge to a 

void judgment. Id. The court held that the time limit was not a statute of 

limitations but a “jurisdictional prerequisite to judicial review of an 

administrative decision.” Id. at 372–73; see also Ariz. Comm’n of Agric. & 

Horticulture v. Jones, 91 Ariz. 183, 187 (1962) (stating that a “right of appeal 
LEGACY V. CITIZENS CLEAN ELECTIONS COMMISSION

Opinion of the Court

8

‘exists only by force of statute, and this right is limited by the terms of the 

statute’” (quoting Knape v. Brown, 86 Ariz. 158, 159 (1959))). 

¶19 Because Legacy pursued a direct appeal through a statute that 

specifies a time limit, the superior court lacked jurisdiction to consider any

questions concerning the Commission’s jurisdiction or any other

substantive matter because the appeal was untimely. Accordingly, the 

superior court correctly dismissed the appeal, and the court of appeals 

correctly affirmed that ruling. We express no view on whether Legacy may 

pursue alternative procedural means to challenge the Commission’s 

penalty order as void.

CONCLUSION

¶20 We vacate the decision of the court of appeals and affirm the 

superior court’s dismissal of the administrative appeal. Legacy’s request 

for attorney fees is denied.