FILED BY CLERK IN THE COURT OF APPEALS APR 28 2006 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
WILLIAM WAYNE ROUBOS, ) DERRICK STEPHEN DeNOMME, and ) KTTL ENTERPRISES-PACIFIC BEACH ) CLUB, INC., an Arizona corporation, dba ) DV8 Nightclub, ) 2 CA-SA 2005-0080 ) DEPARTMENT B Petitioners, ) ) OPINION v. ) ) HON. LESLIE MILLER, Judge of the ) Superior Court of the State of Arizona, in ) and for the County of Pima, ) ) Respondent, ) ) and ) ) CITY OF TUCSON, a municipal ) corporation, ) ) Real Party in Interest. ) )
SPECIAL ACTION PROCEEDING
Pima County Cause No. C20052396
JURISDICTION ACCEPTED; RELIEF GRANTED
Munger Chadwick, P.L.C. By John F. Munger and Laura P. Chiasson Tucson Attorneys for Petitioners Michael G. Rankin, Tucson City Attorney By Laura Brynwood and William F. Mills Tucson Attorneys for Real Party in Interest
E C K E R S T R O M, Presiding Judge.
¶1 Petitioners William Roubos, Derrick DeNomme, and KTTL Enterprises-Pacific
Beach Club, Inc., doing business as DV8 Nightclub, successfully defended actions filed
against them by the City of Tucson, which alleged that they had violated an ordinance
prohibiting loud or unruly gatherings on their property. They now seek special action relief
from the respondent judge’s ruling, which affirmed the city court’s denial of their request
for attorney fees under A.R.S. § 12-348. We conclude they were entitled to an award of
attorney fees and vacate the ruling.
Special Action Jurisdiction
¶2 As petitioners correctly assert, they have no “equally plain, speedy, and
adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. Indeed, they
exhausted their remedies by direct appeal when they appealed the city magistrate’s denial
of attorney fees to the superior court. See A.R.S. §§ 22-425(B) (parties may appeal
municipal court judgments to superior court); 12-120.21(A)(1) (court of appeals has
appellate jurisdiction only of actions “originating in or permitted by law to be appealed from
the superior court”); 12-2101(B) (parties may appeal from “final judgment entered in an
action . . . commenced in a superior court, or brought into a superior court from any other
2 court”); Sanders v. Moore, 117 Ariz. 527, 528, 573 P.2d 927, 928 (App. 1977) (§ 12-
2101(B) does not apply to cases appealed from justice court; it applies only to “cases
transferred or brought into superior court by some process other than appeal”); State v.
Fagerberg, 17 Ariz. App. 63, 64, 495 P.2d 503, 504 (1972) (same).
¶3 Moreover, petitioners raise both a question of law and a question of first
impression. See Piner v. Superior Court, 192 Ariz. 182, ¶ 10, 962 P.2d 909, 912 (1998)
(special action jurisdiction proper, in part, because “[t]he facts are not contested, and the
legal issue can properly be decided on the present record”); ChartOne, Inc. v. Bernini, 207
Ariz. 162, ¶ 8, 83 P.3d 1103, 1107 (App. 2004) (“[Q]uestions of law . . . are particularly
appropriate for special action review.”). Accordingly, we accept jurisdiction of the special
action. And, because we conclude the respondent judge abused her discretion by
erroneously determining this legal issue of first impression, see Rule 3(c), Ariz. R. P. Spec.
Actions, we grant relief. See Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d
282, 284-85 (2003); State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18
(1983).
Factual and Procedural Background
¶4 The City of Tucson cited petitioners twice in September 2004 for having loud
or unruly gatherings at the DV8 Nightclub, in violation of Tucson City Code (TCC) § 16-32.
After a combined hearing in Tucson City Court, petitioners were found not responsible for
the infractions. But the magistrate denied their request for attorney fees pursuant to § 12-
3 348, finding the cases were not civil actions and therefore not covered by that statute.
Petitioners appealed the ruling to superior court. The respondent judge affirmed, concluding
inter alia that, because the penalty for violating the ordinance in question is a fine, the
proceedings by the City to enforce that ordinance were criminal rather than civil in nature.
Discussion
¶5 We review de novo a trial court’s interpretation of a statute. City of Tucson
v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶ 8, 105 P.3d 1163, 1166 (2005). “The
primary rule of statutory construction is to find and give effect to legislative intent.” Mail
Boxes, Etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). “We
focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the
statute’s ‘context, subject matter, historical background, effects, consequences, spirit, and
purpose.’” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 17, 965 P.2d 47, 53 (App.
1998), quoting Mail Boxes, Etc., 181 Ariz. at 122, 888 P.2d at 780.
¶6 The applicable portion of the attorney fee provision, § 12-348(A), reads as
follows:
In addition to any costs which are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than this state or a city, town or county which prevails by an adjudication on the merits in any of the following:
1. A civil action brought by . . . a city . . . against the party.
4 That language requires a court to award attorney fees to a nongovernmental party who
successfully defends against a civil action filed by a city.
¶7 However, § 12-348(H) lists a number of exceptions to that mandate. The
exception at issue here, and the one on which the respondent judge based her ruling, states
that § 12-348 does not “[a]pply . . . to criminal proceedings brought by a city, town or
county on ordinances which contain a criminal penalty or fine for violations of those
ordinances.” § 12-348(H)(8). The city ordinance in question, § 16-32(e) of the TCC,
provides: “An unruly gathering is unlawful and constitutes a civil infraction.”
¶8 Thus, in order to decide whether § 12-348 entitles petitioners to recover their
attorney fees from the City, we must first determine whether the legislature intended that
proceedings brought by a city to enforce a “civil infraction,” such as that described in § 16-
32(e), be characterized as civil actions pursuant to § 12-348(A)(1) or criminal actions
pursuant to § 12-348(H)(8). For the following reasons, we conclude that the legislature
intended that such proceedings be considered civil actions.
¶9 Most importantly, the legislature has, since the origins of our state, expressly
used the term “civil action” to describe the very type of civil enforcement proceedings at
issue here. Current A.R.S. § 22-406, which uses nearly identical language in its relevant
parts to precursor provisions dating to at least 1909, states: “The city or town may maintain
a civil action in the municipal court for the recovery of a penalty or forfeiture provided for
5 the violation of an ordinance. The action shall be brought and conducted as civil actions
in justice of the peace courts.” (Emphases added.)
¶10 When confronted with this language during oral argument, the City
emphasized that another, more specific statute, A.R.S. § 9-500.21, articulates the procedure
by which ordinance violations may be pursued as “civil offenses” by a municipality. It
appears to contend that the offenses here are “civil offenses” under § 9-500.21, rather than
“civil actions” under § 22-406. Section 9-500.21 was enacted in 2001 and specifically
stated that it did “not require changes to procedures in effect before [its] effective date.”
2001 Ariz. Sess. Laws, ch. 257, § 2. Thus, the statute did not independently enable cities
to bring a specific species of “civil offense” actions to enforce ordinances, but rather imposed
procedural requirements on civil actions already permitted. Section 22-406 is the pre-
existing enabling legislation allowing those civil actions. Therefore, properly interpreted,
§ 9-500.21, imposing inherently civil procedures on actions to enforce ordinance violations,
actually provides additional evidence that the legislature considered such actions “civil
actions.”
¶11 The City also suggested that the language in § 22-406, enabling an “action .
. . for the recovery of a penalty . . . for the violation of an ordinance,” merely authorizes a
city to initiate a supplemental proceeding to secure collection of a penalty already imposed.
But the City overlooks that an “action . . . for the recovery of a penalty” is a term of art
referring to an action to enforce an ordinance in the first instance. 9A Eugene McQuillin,
6 The Law of Municipal Corporations § 27.05, at 292 (3d ed. rev. 1996) (“The common
method of compelling obedience to ordinances is by the imposition of penalties for their
violation. . . . In this country there are two modes ordinarily recognized for enforcing penal
ordinances. One is an action to recover the penalty, and the other is the . . . familiar
summary proceeding on information or complaint.”). Thus, when the legislature
promulgated § 22-406 and its precursor provisions, it intended to authorize a municipality
to use civil as well as summary criminal proceedings to enforce its ordinances—and was
enabling precisely the type of enforcement proceeding, pursued through a civil process as
set forth in § 9-500.21, that we address here. And we find no language in the legislature’s
subsequent provisions, including § 9-500.21, that modifies or withdraws the legislature’s
foundational characterization of such a proceeding as a “civil action.”
¶12 The City’s own charter draws a clear distinction between criminal proceedings
and civil actions in the enforcement of its ordinances . Chapter XXV, § 5 of the Tucson City
Charter provides:
The violation of any provisions of this Charter, or of any ordinance of the city, shall be deemed a misdemeanor, and may be prosecuted by the authorities of the city in the name of the State of Arizona, or may be redressed by civil action, at the option of the mayor and council.
And, there can be little doubt that the mayor and council have exercised their option of
redressing violations of the ordinance here by “civil action.” Id. Not only have the mayor
and council in the TCC expressly described a violation of the ordinance as a “civil
7 infraction” rather than as a misdemeanor, TCC § 16-32, but they have set forth a civil rather
than criminal process for determining when a party has committed such an infraction.
¶13 Under the TCC, the civil infraction process is governed by the Tucson Local
Rules of Practice and Procedure in City Court Civil Proceedings. TCC § 8-8. Under those
rules, a proceeding is commenced either by a citation or a civil complaint served by any
method authorized by the Arizona Rules of Civil Procedure. Tucson Loc. R. P. City Ct. Civ.
Proceedings 3(a), (b), 17B A.R.S.; see TCC § 16-50; see also § 9-500.21 (adopting
procedural requirements for ordinance violations classified as civil offenses). The rules of
evidence do not apply, and the City must prove the person is responsible only by a
preponderance of the evidence. See Tucson Loc. R. P. City Ct. Civ. Proceedings 15; § 9-
500.21(3) (requiring procedures for “hearing, record on appeal, default by a defendant and
rules of evidence that generally comply with those for civil traffic offenses”); cf. A.R.S. § 28-
1596(D) (state is required to prove civil traffic offenses by preponderance of evidence). If
a person is found responsible for violating a city ordinance, the court may impose a “civil
penalty.” § 9-500.21(4). And an appeal from a finding that a person is responsible for
violating an ordinance “shall be governed by the Superior Court Rules of Appellate
Procedure-Civil.” Tucson Loc. R. P. City Ct. Civ. Proceedings 23(a); see TCC § 16-51
(“Appeals from civil infraction proceedings shall be in accordance with the Superior Court
Rules of Appellate Procedure-Civil. Appeals from criminal proceedings shall be in
accordance with the Superior Court Rules of Appellate Procedure-Criminal.”).
8 ¶14 In short, the legislature has enabled municipalities to enforce their ordinances
through criminal or civil proceedings and has specifically characterized civil proceedings
used to enforce such ordinances as “civil actions.” § 22-406. As demonstrated above, the
City of Tucson has unambiguously exercised its option to enforce a violation of the specific
ordinance here through civil proceedings. Accordingly, the action brought by the City
against petitioners was a “civil action,” as the legislature has defined that term. Id.
¶15 In ruling that § 12-348 did not apply to the civil infraction proceeding against
petitioners, the respondent judge determined that the Tucson City Court has no jurisdiction
over civil matters. In so doing, she relied on language in A.R.S. § 22-402 and Wissner v.
State, 21 Ariz. App. 432, 520 P.2d 526 (1974). We find neither the statute nor the case
compels that conclusion.
¶16 Section 22-402 establishes municipal courts in each incorporated city or town
and provides, in relevant part, as follows:
B. Every court established pursuant to subsection A, and every court established in a city incorporated under the provisions of title 9, chapter 2, article 5 or incorporated under the provisions of a special act or charter, has jurisdiction of all cases arising under the ordinances of the city or town, and has jurisdiction[,] concurrently with justices of the peace of precincts in which the city or town is located, of violations of laws of the state committed within the limits of the city or town.
The final clause is irrelevant to this case because the underlying action did not involve a
violation of state law. And the first clause simply provides that municipal courts have
jurisdiction over cases arising under the municipality’s ordinances. Nothing in the statutory
9 language expressly or implicitly precludes an exercise of civil jurisdiction to resolve alleged
violations of those ordinances.
¶17 In Wissner, this court held that the Tucson City Court lacked jurisdiction to
determine whether a defendant being prosecuted for shoplifting was competent to stand trial,
stating, as the respondent judge quoted in her ruling: “The jurisdiction of City Court, as
prescribed by law, is limited to cases arising under the city ordinances and violations of state
laws committed within city limits. A.R.S. § 22-402. Thus, we see that it has no jurisdiction
of civil matters.” 21 Ariz. App. at 434, 520 P.2d at 528.
¶18 For two reasons, we find that statement overbroad when applied to the
circumstances here. First, at the time we issued Wissner, when a court found a defendant
incompetent to stand trial, one of its options was to order the defendant civilly committed.
See former Ariz. R. Crim. P. 11.5(b)(2)(i) (1973);1 Wissner, 21 Ariz. App. at 433, 520 P.2d
at 527. Under the civil commitment statutes both as they read at that time and now, only
a superior court has jurisdiction to order a person committed for involuntary mental health
treatment. See former A.R.S. § 36-514, 1958 Ariz. Sess. Laws, ch. 84, § 1; A.R.S. §§ 36-
501(4), 36-540. Thus, although we broadly stated in Wissner that a municipal court has “no
jurisdiction of civil matters,” our more specific comment there more accurately stated our
holding—that “[a] proceeding to determine whether a defendant possesses sufficient mental
1 Under current Rule 11.5(b)(2)(i), Ariz. R. Crim. P., 16A A.R.S., a superior court may remand a defendant to the Department of Health Services for it to initiate civil commitment proceedings. See A.R.S. § 36-533.
10 capacity to be tried is a special proceeding of a civil nature” that municipal courts had not
been authorized to conduct. 21 Ariz. App. at 434, 520 P.2d at 528.
¶19 Second, as seen above, the respondent judge’s ruling and a broad
interpretation of the dictum in Wissner contradicts the provisions of § 22-406, which
unambiguously authorize municipalities to bring civil actions to enforce an ordinance.2
Moreover, as enabled by those provisions, the Tucson City Charter expressly granted Tucson
City Court civil jurisdiction to enforce its ordinances. The Tucson City Court was created
by chapter XII, § 1 of the City Charter. Section 2 of chapter XII describes the court’s
jurisdiction as follows:
It shall have and exercise exclusive original jurisdiction of all proceedings of a criminal nature for the violation of any ordinance of said city, and of every action of a civil nature for the enforcement of a penalty, or the recovery of a penalty or forfeiture imposed by any ordinance of said city for violation thereof . . . .
(Emphasis added.) And the TCC provides that “[t]he Local Rules of Practice and Procedure
in City Court Civil Proceedings . . . apply to all . . . actions for civil violations or civil
infractions of this Code.” § 8-8. We are therefore unable to agree with the respondent
judge’s ruling that the proceedings to enforce the ordinance could not be civil actions
because Tucson City Court lacks jurisdiction to hear civil matters.
2 Neither petitioners nor the City cited the provisions of A.R.S. § 22-406 to the respondent judge in either pleadings or argument.
11 ¶20 Notwithstanding our conclusion that the enforcement proceeding here was a
civil action, petitioners would not be entitled to their attorney fees if the action fell within
one of the numerous exceptions in § 12-348(H). The City maintains, and the respondent
judge concluded, that the proceeding fell within the exception for “proceedings brought by
a city . . . pursuant to traffic ordinances or to criminal proceedings brought by a city . . .
which contain a criminal penalty or fine for violations of those ordinances.” § 12-348(H)(8).
Again, we must disagree.
¶21 At the outset, our previous conclusion that the proceeding in question is a
“civil action” precludes any simultaneous characterization of that action as a “criminal
proceeding.” As discussed above, the state has enabled the City to enforce its ordinances
using civil or criminal proceedings and the City, while itself setting forth a clear distinction
between criminal proceedings and civil actions, expressly chose to pursue what it calls a
“civil” infraction here using civil rules of procedure subject to civil standards of proof.
¶22 Citing our supreme court’s opinion in Frazier v. Terrill, 65 Ariz. 131, 136,
175 P.2d 438, 441 (1946), the respondent judge concluded, in essence, that the enforcement
action must have been a criminal proceeding because the sanction for violating the ordinance
is a fine, and a fine is generally a criminal sanction. Id. (“‘“Penalty” and “fine” are not the
same in law. A penalty is always recoverable in a civil action. A fine never is.’”), quoting
31A Words and Phrases 435 (perm. ed. 1957). But the Frazier court was not asked to
characterize the fundamental nature of the proceeding before it. Rather, it addressed the
12 traditional legal distinction between a fine and a penalty in determining whether a justice
court possessed jurisdiction to preside over a criminal misdemeanor case in which a
combination of fines and penalties might exceed the jurisdictional limit. Id. at 133, 175 P.2d
at 439-40.
¶23 And to the extent Frazier suggests that the appropriate terminology for a
financial sanction in a civil enforcement action should be “penalty” rather than “fine,” we
decline to conclude that the enforcement action here was a criminal proceeding merely
because the drafters of the Tucson City Code arguably used the wrong terminology. Indeed,
§ 9-500.21(4), the legislative provision the City trumpets as the procedural framework for
the civil enforcement action, refers to the financial sanction as a “civil penalty” rather than
a fine. Thus, the legislature itself has labeled the financial sanctions for the violation of
ordinances as “civil penalties.” Id. We therefore doubt that the legislature would have
intended to recharacterize the action here as a criminal proceeding merely because a given
municipality might have chosen different terminology for the sanction imposed.
¶24 In the same vein, the City contends that the civil infraction proceeding was a
criminal proceeding because “the maximum fine for both a civil infraction and for a criminal
misdemeanor” is the same. In comparing the maximum fine in the general penalty section
to the maximum fine for a class one misdemeanor, the City overlooks the lesser maximum
fines adopted for class two and three misdemeanors. See TCC § 8-6.1(a)(1); A.R.S. § 13-
802(A)-(C). The City also overlooks A.R.S. § 13-707(A)(1) through (3), which permit a
13 person convicted of a misdemeanor to be sentenced to a term in jail ranging from thirty days
for a class three misdemeanor to six months for a class one misdemeanor. But, as noted
above, a person found responsible for a civil infraction is not subject to incarceration of any
kind, even under the general penalty section of the code. See TCC §§ 16-32(g), 8-6.1(a).
Thus, the City’s argument simply compares apples to oranges.
¶25 The respondent judge also noted that a person’s failure to abate a violation of
a city ordinance may subject the person to an additional “fine, incarceration and/or a period
of probation,” consequences she noted are “all penalties for criminal violations.” Although
such consequences are penalties for criminal violations, they may only be imposed if the
person has been convicted of criminal charges filed because of the person’s “failure to obey
an order to abate a violation,” not for the person’s violation of the ordinance itself, the only
factual scenario before us. TCC § 8-6.1(a)(3) (city attorney may file criminal charges for
failure to abate ordinance violation); see TCC § 16-67 (person who fails to obey order
abating any violation of chapter 16 “is guilty of a misdemeanor”). For the above reasons,
we conclude the respondent judge erred when she construed the civil enforcement action
here as a criminal proceeding.
¶26 The City suggests that, even if we do not construe the enforcement action as
a criminal proceeding itself, the legislature nonetheless intended to exempt those
proceedings from § 12-348 because those proceedings are so similar to other types of actions
expressly exempted. Specifically, the City observes that the legislature has required
14 municipalities to employ courtroom procedures “that generally comply with those for civil
traffic offenses,” when civilly enforcing municipal ordinances, § 9-500.21(3), and it has
exempted actions to enforce civil traffic violations from the attorney fee provisions in § 12-
348(A). § 12-348(H)(8).
¶27 But, in Estate of Walton, 164 Ariz. 498, 794 P.2d 131 (1990), our supreme
court construed § 12-348 “to mandate awards to all parties prevailing against the state,
absent an affirmative statutory prohibition,” and quoted its statement in a previous case:
“‘So long as the litigation falls within one of the categories of subsection A and is not
excluded under subsection [H] an award of fees is proper.’” Walton, 164 Ariz. at 501, 794
P.2d at 134, quoting Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 317, 714 P.2d
807, 810 (1986). The legislature has not set forth any “affirmative statutory prohibition” on
an award of attorney fees for the civil enforcement of nontraffic municipal ordinances. Id.
¶28 Moreover, the legislature has not hesitated to create numerous exceptions to
the attorney fee provisions in § 12-348(A) and has done so with great specificity. See § 12-
348(H)(1)-(8) (listing eight exception provisions, each of which itemizes several specific
exceptions). When, as here, the legislature has demonstrated an intent to itemize exceptions
to § 12-348(A) in specific rather than general terms, we may not assume a general legislative
intent to exempt civil enforcement actions in the absence of a specific legislative provision
so stating. Thus, we cannot assume the legislature intended to exempt civil enforcement of
municipal ordinances from the attorney fee provision of § 12-348(A) simply because it chose
15 to do so in a distinct but procedurally analogous realm of civil traffic enforcement actions.3
See State v. Roscoe, 185 Ariz. 68, 71, 912 P.2d 1297, 1300 (1996) (“‘A well established
rule of statutory construction provides that the expression of one or more items of a class
indicates an intent to exclude all items of the same class which are not expressed.’”),
quoting Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982).
¶29 Lastly, the City emphasizes that an award of attorney fees in this case would
not serve the underlying purposes of § 12-348, a statute it contends was designed merely “to
encourage individuals aggrieved by governmental action to assert their rights” but not to
undermine the government’s ability to function. The City maintains that imposing such
potential costs on a municipality for an unsuccessful enforcement action would cause “a
severe chilling effect upon that municipality’s enforcement efforts against those who violate
city ordinances.” And the City warns that such an application of § 12-348 would therefore
wreak “havoc . . . upon city code enforcement of other civil infractions such as building and
fire safety violations or public nuisances, . . . potentially gutting the ability of cities and
towns to provide and enforce regulations for the public welfare.”
¶30 We are cognizant of such concerns and do not trivialize them. But, although
reasonable minds might dispute whether attorney fees should be awarded to a prevailing
3 In a parallel argument, the City has also maintained that the legislature’s exemption of proceedings brought by cities under titles 13 and 28 of Arizona Revised Statutes suggests a general legislative intent to exempt civil enforcement actions as well. But the civil infraction action here was not a proceeding brought under title 13 or 28, and we therefore reject this argument for the same reason stated in ¶ 27.
16 private party under the circumstances here, it is the task of the legislature to make such
public policy judgments. Presumably, any measure that exposes a governmental entity to
payment of opposing parties’ attorney fees makes the relevant governmental action more
costly. But, in promulgating § 12-348, the legislature intended to ameliorate “the disparity
between the resources and expertise of . . . individuals and their government” and reduce the
“economic deterrents to contesting governmental action.” 1981 Ariz. Sess. Laws, ch. 208,
§ 1. It is the legislature’s province, not ours, to determine whether its stated remedial goals
are outweighed by the City’s public policy concerns in this context. We note that the
legislature has not hesitated to adopt exceptions to § 12-348 in order to strike what is, in its
view, an appropriate balance. Moreover, the City may proceed by criminal actions if it
chooses, albeit subject to an elevated burden of proof, thereby avoiding the provisions of
§ 12-348. See § 12-348(H)(8).
¶31 In summary, we hold that the civil enforcement of a municipal ordinance is a
“civil action” under § 12-348(A)(1) and not a criminal proceeding under § 12-348(H)(8) and
that municipal courts have jurisdiction over such civil enforcement actions. We also hold
that the specific provisions of § 12-348(H)(1) through (8) do not demonstrate a general
legislative intent to exempt the City from the requirement that it pay the attorney fees of a
party prevailing against it in such an action.
¶32 Petitioners have requested their attorney fees incurred in this special action
pursuant to § 12-348(A)(4). That section requires a court to award attorney fees to any
17 nongovernmental party that prevails by an adjudication on the merits of “[a] special action
proceeding brought by the party to challenge an action by the state against the party.”
Because petitioners’ special action challenges an action by a municipality, not the state, we
reject that request. See § 12-348(I)(3) (defining “state” as “this state and any agency, officer,
department, board or commission of this state”).
¶33 We grant special action relief, vacate the respondent judge’s ruling, and direct
the respondent judge to remand this case to the Tucson City Court for entry of an award of
reasonable attorney fees for the defense of the enforcement action.
_____________________________________ PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________ J. WILLIAM BRAMMER, JR., Judge
____________________________________ JOSEPH W. HOWARD, Judge