Arpaio v. Citizen Pub. Co.

• Decision Date: 18 December 2008
• Docket Number: No. 2 CA-CV 2008-0062.,2 CA-CV 2008-0062.
• Citation: 211 P.3d 8,221 Ariz. 130
• Parties: Joseph M. ARPAIO, Defendant/Appellant, v. CITIZEN PUBLISHING CO. and Mark Kimble, Defendants/Appellees.
• Court: Arizona Court of Appeals

211 P.3d 8

221 Ariz. 130

Joseph M. ARPAIO, Defendant/Appellant, v. CITIZEN PUBLISHING CO. and Mark Kimble, Defendants/Appellees.

No. 2 CA-CV 2008-0062.

Court of Appeals of Arizona, Division 2, Department A.

December 18, 2008.

Iafrate & Associates, by Michele M. Iafrate and Jeffrey L. McLerran, Phoenix, Attorneys for Defendant/Appellant.

Steptoe & Johnson LLP, by David J. Bodney, Karen J. Hartman-Tellez, and Aaron J. Lockwood, Phoenix, Attorneys for Defendants/Appellees.

OPINION

BRAMMER, Judge.

¶ 1 Appellant Maricopa County Sheriff Joseph Arpaio appeals from the trial court's award of attorney fees against him and in favor of appellees Citizen Publishing Co. and Mark Kimble (collectively, "Citizen") in a declaratory judgment action Pima County Attorney Barbara LaWall brought regarding a public records request Citizen had submitted to LaWall. Arpaio asserts A.R.S. § 39-121.02(B) does not permit the trial court to require him to pay Citizen's attorney fees. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 The underlying facts are undisputed. In July 2007, Citizen submitted a public records request to LaWall for documents related to the Arizona Attorney General's transfer of a civil forfeiture case to the Pima County Attorney's Office ("PCAO"). PCAO contacted Arpaio, whose office had originally investigated the case, to ask if he had any objection to the release of certain correspondence between PCAO and Arpaio's office concerning the transfer. Arpaio responded that PCAO could not properly give Citizen access to the correspondence because it would be harmful to the state and that the records were protected by a purported attorney-client relationship between PCAO and the Maricopa County Sheriff's Office.

¶ 3 LaWall then filed a declaratory judgment action asking the trial court to determine: (1) whether an attorney-client relationship existed in these circumstances between PCAO and Arpaio; (2) if so, whether the information sought by the Citizen's public records request was privileged; (3) whether the information may be released; and (4) "the rights and other legal relationships" of the parties "with respect to this matter." The complaint named Arpaio and Citizen as defendants.¹ In response, Arpaio argued LaWall was not permitted to release the correspondence, again asserting the attorney-client privilege protected the information and that release of the information would be harmful to the state. LaWall and Citizen argued LaWall could properly release the records.

¶ 4 After reviewing the correspondence, the trial court determined the correspondence was a public record, no attorney-client privilege existed between PCAO and Arpaio, but that minor portions of the correspondence were protected attorney work product. The court ordered LaWall to provide Citizen access to the correspondence after redacting the protected information.

¶ 5 Citizen then requested attorney fees and costs pursuant to A.R.S. §§ 12-341.01(C), 12-349(A), and 39-121.02(B). After a hearing, the court granted Citizen's request pursuant to § 39-121.02(B), ordering Arpaio to pay Citizen $25,241 in attorney fees. This appeal followed.

Discussion

¶ 6 This case presents a question of statutory construction we review de novo. See McHale v. McHale, 210 Ariz. 194, ¶ 7, 109 P.3d 89, 91 (App.2005). "When construing a statute, our goal `is to fulfill the intent of the legislature that wrote it.'" City of Sierra Vista v. Dir., Ariz. Dep't of Envtl. Quality, 195 Ariz. 377, ¶ 10, 988 P.2d 162, 165 (App. 1999), quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). "If the statute is clear and unambiguous, we apply the plain meaning of the statute." Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 7, 122 P.3d 6, 10 (App.2005). "We look ... to the statute's language ... [as] `the best and most reliable index of [the] statute's meaning.'" Williams, 175 Ariz. at 100, 854 P.2d at 133, quoting Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). "We resort to additional considerations `such as the statute's context, history, subject matter, effects and consequences, spirit, and purpose' only if the language proves to be ambiguous." Taylor v. Cruikshank, 214 Ariz. 40, ¶ 10, 148 P.3d 84, 87 (App.2006), quoting State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App.2002).

¶ 7 Section 39-121.02(B) provides, in pertinent part, as follows: "The court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed."² Section 39-121.02(B) is contained in Article 2, Chapter 1, of Title 39 of the Arizona Revised Statutes, the article governing the duty of an officer of a public body to maintain records and provide public access to those records. Nearly all of the provisions of this article refer to either the "officer" or "public body" or "custodian" responsible for the requested records. See, e.g., A.R.S. §§ 39-121; 39-121.01(B), (C), (D), (E); 39-121.03(A), (B). Section 39-121.02(B), however, does not use those terms and does not specify what entity is liable for any fees and costs awarded to the successful party. Thus, we must determine whether the legislature intended that only the custodian of the requested records be liable for any fees and costs awarded.

¶ 8 As we understand his argument, Arpaio contends it was unnecessary for the legislature to specify the responsible entity in § 39-121.02(B) because it is the custodian's duty to maintain records and make them available for inspection.³ Arpaio relies on State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970), in which our supreme court stated that we should interpret a statute "in conjunction with other statutes to the end that they may be harmonious and consistent," and "[i]f the statutes relate to the same subject or have the same general purpose—that is, statutes which are in pari materia—they should be read in connection with, or should be construed together with other related statutes, as though they constituted one law." Thus, Arpaio reasons, because the other statutes in Article 2 deal solely with the duty of the officer to maintain and provide access to the records, we must conclude § 39-121.02(B) permits an award of attorney fees only against that officer.

¶ 9 But the rule of statutory construction described in Farley does not require us to read absent language into § 39-121.02(B). Indeed, to do so would violate our rules of statutory interpretation. See State v. Gonzales, 206 Ariz. 469, ¶ 11, 80 P.3d 276, 278 (App.2003) ("`[W]hen the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded.'"), quoting Luchanski v. Congrove, 193 Ariz. 176, 177, ¶ 14, 971 P.2d 636, 639 (App.1998). As we noted above, unlike most of the provisions of Arizona's public records law, § 39-121.02(B) does not refer to the officer or public body having custody of the requested records. In further contrast, the other subsections of § 39-121.02 specifically refer to that officer or public body. Subsection (C) of § 39-121.02 creates a cause of action by the person requesting the records against "the officer or public body" who "wrongfully denied access to [the requested] public records" for any damages "resulting from the denial." Subsection (A) permits the person requesting the records to appeal the denial of his or her request by special action "against the officer or public body."

¶ 10 That the legislature used the term "officer or public body" elsewhere, even within the same statute, but not in § 39-121.02(B), strongly suggests the legislature did not intend liability for attorney fees awarded under that statute to be limited to the officer or public body responsible for providing access to the public records. See Gonzales, 206 Ariz. 469, ¶ 11, 80 P.3d at 278. Had the legislature intended for the responsibility to fall solely on the custodian of the records, it would have specifically so stated in the statute-just as it clearly delineated the obligations of the custodian elsewhere in Article 2, including the custodian's liability under § 39-121.02(C) for damages caused by the wrongful denial of access to requested records.⁴

¶ 11 We may glean the legislature's intent from the statute's language. See Williams, 175 Ariz. at 100, 854 P.2d at 133. The statute's reference to the "prevail[ing]" party suggests that attorney fees and costs should be assessed against a non-prevailing party, here the party or parties opposing access to the records. The language of § 39-121.02(B) is similar to the language contained in A.R.S. § 12-341.01(A), which provides that the "successful party" is entitled to reasonable attorney fees in any "contested action arising out of a contract." Under § 12-341.01(A), the adverse party is responsible for the successful party's attorney fees. See Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 466, 733 P.2d 652, 663 (App.1986); Nationwide Res. Corp. v. Ngai, 129 Ariz. 226, 232, 630 P.2d 49, 55 (App.1981). "Adversity ... is not determined solely from the parties' alignment in the pleadings, but rather must be ascertained from the opposing positions or interests of the parties." Pioneer Roofing, 152 Ariz. at 466, 733 P.2d at 663. "`The word "adverse" in legal proceedings has been said to be equivalent to or synonymous with "oppos[ing]" and "opposite."'" Ngai, 129 Ariz. at 232, 630 P.2d at 55, quoting Harvey v. Lewis, 10 Mich.App. 23, 158 N.W.2d 809, 812 (1968). Despite the fact that both Arpaio and Citizen were named as defendants in the declaratory action, Arpaio's position was clearly adverse to that of Citizen and LaWall, and Arpaio does not argue otherwise.

¶ 12 Moreover, despite Arpaio's assertion to the contrary, our interpretation of § 39-121.02(B) is consistent with...