Riley, Hoggatt & Suagee, P.C. v. English

864 P.2d 1042, 177 Ariz. 10, 154 Ariz. Adv. Rep. 5, 1993 Ariz. LEXIS 117

• Court: Arizona Supreme Court
• Decided: December 9, 1993
• Docket: CV-92-0355-PR
• Status: Published

Opinions

AMENDED OPINION

Memorandum Decision of the Court of Appeals, Division Two, filed July 9, 1992, Vacated

FELDMAN, Chief Justice.

The superior court dismissed a claim for legal fees and costs submitted by Riley, Hoggatt & Suagee, P.C. (“Plaintiff’), finding that the claim failed as a matter of law. We granted review because the issue has statewide importance. Ariz.R.Civ.App.P. 23(c)(4). We have jurisdiction pursuant to Ariz. Const, art. VI, § 5(3), A.R.S. § 12-120.24, and Ariz. R.Civ.App.P. 23.

FACTS AND PROCEDURAL HISTORY

In sentencing a criminal defendant who lived in Willcox, a Cochise County justice of the peace (the “Judge”) ordered that the defendant serve his thirty-day sentence in the Willcox “branch” of the Cochise County jail. The purpose was to allow the defendant to participate in a punishment program that would permit him to continue his employment and serve his sentence at night and on weekends. A.R.S. § 28-693(D) authorizes such sentences. The Cochise County Sheriff (the “Sheriff’) refused to incarcerate the defendant in the Willcox jail, relying on the pre-1989 versions of A.R.S. § 11—141(A)(5) and § 31-101. The relevant provisions authorize a sheriff, among other things, to “keep the county jail ... and the prisoners therein.”

The Sheriff had adopted his own policy, which provided that the county jails would accept prisoners sentenced under the “hardship” provisions of A.R.S. § 28-693 only if those prisoners were incarcerated in Bisbee. Judd v. Bollman, 166 Ariz. 417, 418-19, 803 P.2d 138, 139-40 (Ct.App.1990) (rev. denied Jan. 15, 1991). Given the distance between Willcox and Bisbee, the Sheriffs policy effectively negated the ability of justices of the peace to sentence misdemeanor prisoners under A.R.S. § 28-693(D). In the present case, the Judge did not order the Sheriff to take any action other than hold the defendant in the existing county jail facility in Willcox.

The Sheriff claimed the Judge’s order exceeded his jurisdiction. Represented by the Cochise County Attorney, the Sheriff filed a special action¹ in superior court, naming the Judge as respondent. See Ariz.R.P.Spec.Act. 2(a)(1). That action challenged the jurisdiction and authority of justices of the peace to make orders directing the place of incarceration. The Judge retained Plaintiffs predecessor, Riley & Hoggatt, P.C., to represent him. Following a hearing, the superior court vacated the Judge’s order, finding that he had exceeded his authority and jurisdiction. The Judge appealed, the court of appeals affirmed, and we denied review. Judd, 166 Ariz. at 417-18, 803 P.2d at 138-39.

Plaintiff then requested payment from Cochise County for the legal fees and costs incurred in representing the Judge. When the county denied the request, Plaintiff filed an action against Cochise County and its Board of Supervisors (“Defendants”). The superior court granted summary judgment in favor of Defendants, and the court of appeals affirmed. Riley, Hoggatt & Suagee, P.C. v. English, No. 2 CA-CV 92-0015 (July 9,1992) (mem. dec.). Plaintiff sought, and we granted, review of the following issue:

Did the trial court err in granting [the county’s] motion to dismiss, treated as a motion for summary judgment, when the facts, viewed in a light most favorable to [Plaintiff] establish [Plaintiffs] right to recover?

DISCUSSION

Summary judgment is proper when, factually, “reasonable people could not agree with the conclusion advanced by the proponent of the claim,” Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990), and, legally, the movant is entitled to judgment as a matter of law, Ariz.R.Civ.P. 56(c). Our review is de novo, viewing the evidence in a light most favorable to the non-movant. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990).

Because the county attorney filed a special action on behalf of the Sheriff, the county attorney could not also represent the Judge. See Ariz.R.Sup.Ct. 42, ER 1.7. As we have stated, however, “the county attorney is responsible for providing legal advice and representation to justices of the peace so requesting.” Collins v. Corbin, 160 Ariz. 165, 167, 771 P.2d 1380, 1382 (1989). The county attorney also is responsible for representing the county sheriff. See generally A.R.S. § 11-532. Thus, what is the appropriate course when these two responsibilities collide?

Justices of the peace are county officers and integral parts of our judicial system. Collins, 160 Ariz. at 165, 771 P.2d at 1380. Because justices of the peace serve a vital function in the judiciary, Arizona “recognize[s] [their] inherent power ... to require the providing of personnel in order to perform [their] necessary functions.” Reinhold v. Board of Supervisors, 139 Ariz. 227, 232, 677 P.2d 1335, 1340 (Ct.App.1984). This power can include hiring counsel to assert the position of the justice of the peace (a county officer) in litigation against other branches of government. See Deddens v. Cochise County, 113 Ariz. 75, 77-78, 546 P.2d 811, 814-15 (1976); Maricopa County v. Biaett, 21 Ariz.App. 286, 290, 518 P.2d 1003, 1007 (1974).

The power to obtain necessary services, however, is limited and “should be exercised only when there is no established method for obtaining needed personnel or when a reasonable, good faith, diligent effort to utilize such methods has been attempted and has failed.” Reinhold, 139 Ariz. at 232, 677 P.2d at 1340 (emphasis added). When a justice of the peace has exercised this inherent power, a county has the duty to approve a request for legal fees and costs, absent a clear showing that the justice of the peace acted arbitrarily, capriciously, or unreasonably in procuring such services. See Maricopa County v. Dann, 157 Ariz. 396, 398, 758 P.2d 1298, 1300 (1988); Reinhold, 139 Ariz. at 232, 677 P.2d at 1340.

Thus, there are two factors that determine whether the Judge properly obtained independent counsel to represent him in the special action. First, we must establish the need to litigate. Second, we must decide whether, as a matter of law, there is an established method for obtaining legal services and, if so, whether the Judge made a reasonable, good faith, diligent, but unsuccessful, effort to utilize that method.

A. Did the Judge have a legitimate need or purpose in defending his order?

The dissent focuses on standing—arguing that the Judge had no need to retain counsel to litigate because he had no standing to do so. However, this narrow issue is now precluded. In all six court appearances, the county never raised lack of standing as a defense in either the underlying case or in this action for legal fees. Moreover, in the present context, standing does not refer to either in personam or subject matter jurisdiction. Rather, it refers to the ethical propriety of the Judge appearing as a litigant. See Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1 (1993).

The county could have properly raised this issue in Judd; arguably, the appellate court in Judd could have raised it sua sponte. See id. at 332, 849 P.2d at 2 (although not raised by the parties, the appellate court dismissed the case, holding that the trial court lacked standing to litigate). Neither the county nor the appellate court raised the issue. The case was not dismissed for lack of standing; it was decided on its merits, and the decision is final. It is simply too late now to use the present case, a dispute over the county’s liability for fees, to make a collateral attack on the Judge’s standing in the previous case.

The standing issue, of course, is inextricably intertwined with the broader question of the Judge’s need to litigate. In a special action contesting the validity of a judicial order, the trial court must be named as a respondent. See Id. at 332, 849 P.2d at 2 (1993). This is normally only a formality, with the actual litigant named as “real party in interest.” Arfz.R.P.Spec.Act. 2(a)(1). In most cases, the trial court’s interest is nominal, therefore, and provides the judge no valid reason to respond to the special action. Id. at 332, 849 P.2d at 2. However, in certain circumstances a trial judge should respond. For instance, a judge should “explain or defend an administrative practice, policy, or local rule.” Id. at 333, 849 P.2d at 3.

In this case the facts show that the Judge was not merely defending a case-specific ruling. By the time the issues between the Judge and the Sheriff were tried, the defendant had completed his sentence at Bis-bee and was not even named as a party to the special action. Thus, for him the issues were moot. Therefore, in attempting to uphold the validity of the order imposing a form of community punishment on a defendant convicted of misdemeanor reckless driving and sentenced to thirty days in jail, the Judge obviously litigated issues important to the administration of his court. Judd centered on a conflict between a sheriffs right to decide where to confine prisoners and a trial court’s pragmatic ability to apply AR.S. § 28-693(D) in a rural county. Thus, under Hurles, and particularly in light of the mootness of the sentence, the Judge’s actions were “defense-of-policy” rather than an attempt to defend a single ruling. Id.; see also Dunn v. Superior Court, 160 Ariz. 311, 772 P.2d 1164 (Ct.App.1989) (superior court judge responded by letter to a special action challenging his refusal to grant a motion for a change of judge; the ruling defended a court’s common administrative practice).

In the present case, the Judge attempted to defend and clarify his statutory right to assign prisoners to a work release program under AR.S. 28-693(D). A favorable appellate ruling would establish the Judge’s ability to apply A.R.S. § 28-693(D), while the Sheriffs policy, if unchallenged, would destroy that ability. That must have been the Judge’s sole concern, as the defendant had served his sentence, was not a party, and the issue no longer had case-specific importance. The fact that the Judge lost on appeal has no bearing on his right to defend his position. The court of appeals declined to hold the appeal frivolous. Judd, 166 Ariz. at 420, 803 P.2d at 141. We also conclude that the Judge was not simply trying to justify himself but, rather, was defending the court’s future power to use the community punishment statute. Assuming, arguendo, that Hurles articulates a correct test, the Judge needed legal representation.

Before leaving Hurles, and in light of Justice Corcoran’s dissent, further comment is needed. We would never invite “warfare” between judges and public officials. Nor do we encourage “battling judges” to “enter the trenches as litigants.” Post at 19, 864 P.2d at 1051. As noted, the Sheriffs suit against the Judge questioned whether statutory discretion could survive when the Sheriff, without explanation, refused to accept the defendant in the local jail. Although the Judge lost, it is difficult to ascertain why his efforts to defend his jurisdiction to impose community punishment on hardship prisoners should incite such rhetoric. Nor was this “judge-initiated litigation.” Post at 19, 864 P.2d at 1051. The Sheriff filed the special action against the Judge, alleging that the Judge either had no jurisdiction or exceeded it in directing the Sheriff to incarcerate the defendant in Willcox. Judd, 166 Ariz. at 418, 803 P.2d at 139.

We now turn to the Judge’s method for obtaining representation.

B. Was there, as a matter of law, an established method for obtaining legal services?

Defendants claim that the Purchasing Manual for Cochise County (“Manual”) is an^ established—indeed exclusive—method for procuring legal services and that Plaintiff did not attempt to comply with this Manual. As Defendants concede, however, the Manual contains “no specific provision for obtaining lawyers for the justice court in special action proceedings.” Indeed, the Manual contains “general policies” not intended to be completely comprehensive. “These policies are intended to cover almost all cases involving procurement for the County____ While [this Manual] is necessarily detailed, it cannot cover all eventualities. The occasional exceptional cases will he worked out as circumstances warrant.” Manual at 1, 2 (emphasis added). Nor does the Manual, as a matter of' law, cover “emergency purchases” of services (as opposed to goods). Id. at 9 (referring to “emergency purchases” of an “item needed” from a “vendor”). Thus, we cannot state as a matter of law that the Manual is an established method for obtaining legal services.

C. Did the Judge, as a matter of law, fail to make a reasonable, good faith, diligent, but unsuccessful, effort to follow any applicable procurement method?

The Judge was served with the special action complaint on July 12, 1989; the hearing on the matter was set for and held on July 18, 1989. Viewing the evidence in a light most favorable to Plaintiff, the day the Judge was served, he contacted the presiding superior court judge of Cochise County. The presiding judge has supervisory and administrative authority over all courts within his county. See Arizona Supreme Court Administrative Order 93-30. The presiding judge advised the Judge to hire an attorney and bill the county. That evening, the Judge discussed the possibility of legal representation with one of Plaintiffs attorneys. In this conversation, the Judge relayed the substance of his discussion with the presiding judge.

The next day, July 13, 1989, one of Plaintiffs attorneys contacted the presiding judge, who confirmed what the Judge had said. This attorney then telephoned the Cochise County Administrator, who was unavailable to take the call. Following this call, Plaintiff agreed to represent the Judge in the special action.

On July 14,1989, Plaintiff wrote a letter to the county administrator, stating that the presiding judge had advised the Judge “that he should hire a private attorney and have the attorney bill the County for his services.” The letter added that Plaintiff was representing the Judge and that the letter was written “to acquaint you with this situation and the fact that we will be billing the County for our services.” The presiding judge apparently received a copy of this letter.

In short, the Judge and Plaintiff both contacted the presiding judge (the functional equivalent of the department head in this case) regarding the situation and received similar responses. Plaintiff twice contacted the county administrator to inform him, as well as the presiding judge, of the proposed course of action and that the county would be billed for the services rendered. Neither the county administrator nor the presiding judge objected to this procedure before Plaintiff submitted its bill. Nor did the county administrator suggest any other procurement method. Thus, we cannot state, as a matter of law, that the Judge failed to make a reasonable, good faith, diligent, but unsuccessful, effort to follow any applicable procurement policies. See Reinhold, 139 Ariz. at 232, 677 P.2d at 1340.

D. Did the Judge, as a matter of law, act arbitrarily, capriciously, or unreasonably in procuring legal services?

Unlike the court of appeals, we do not read the procedural history of Biaett as setting forth “required steps” for recovery. In addition, the actions taken by the Judge in the present case went beyond those taken by the recorder in Biaett. In that case, the county recorder did ask the county attorney to represent him in an action against the county board. Biaett, 21 Ariz.App. at 287, 518 P.2d at 1004. In this case, the Judge did not ask the county attorney to represent him, but such a request clearly would have been futile because the county attorney already represented the Sheriff (the petitioner in the special action). On the other hand, there is no indication that the recorder in Biaett contacted the county administrator or presiding judge. In this case, the Judge or Plaintiff contacted both twice.

Biaett found, as a matter of law, that the recorder acted properly in procuring legal services. Id. at 290, 518 P.2d at 1007. The facts here are stronger than Biaett, and we cannot conclude, as a matter of law, that the Judge acted arbitrarily, capriciously, or unreasonably in procuring legal services. See Dann, 157 Ariz. at 398, 758 P.2d at 1300; Reinhold, 139 Ariz. at 232, 677 P.2d at 1340. Moreover, the Judge was defending an important jurisdictional issue. Thus, even if there was no applicable established method for obtaining legal services, the trier of fact must consider the surrounding circumstances (including the time constraints and contact with the presiding judge and county administrator) to decide whether the actions were arbitrary, capricious, or unreasonable. Reinhold, 139 Ariz. at 232, 677 P.2d at 1340.

Finally, Defendants appear to argue that the Judge must have prevailed to be eligible to recover fees and costs and that the amount requested is unreasonable as a matter of law. The county is responsible for legal advice and representation for justices of the peace, Collins, 160 Ariz. at 167, 771 P.2d at 1382, including, obviously, instances when the justice of the peace may lose. In short, there is no prevailing party requirement, and we cannot resolve in this case, as a matter of law, any issue of reasonableness of fees and costs.² Cf. Biaett, 21 Ariz.App. at 290, 518 P.2d at 1007.

DISPOSITION

Because there are genuine issues of material fact, and Defendants have not shown that they are entitled to judgment as a matter of law, we reverse the grant of summary judgment. Accordingly, we vacate the trial court’s judgment and the court of appeals’ decision. This matter is remanded to the trial court for further proceedings consistent with this opinion.

ZLAKET and MARTONE, JJ., concur.

1 . In Arizona, relief formerly obtained by writs of prohibition, mandamus, or certiorari is now obtained by "special action." Ariz.R.P.Spec.Act. 1(a).

2 . As far as what Justice Corcoran characterizes as ''odysseys'' through the judicial system, it is somewhat unfair to blame the Judge or his lawyers. They notified the county and did what the county officers requested. Neither an "odyssey” nor "squads, platoons or battalions” of lawyers would have been necessary if the county had not reneged and refused to pay the $5,000 Plaintiff earned for its work.