Board of Sup'rs of Maricopa County v. Woodall
| Decision Date | 21 April 1978 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 586 P.2d 640,120 Ariz. 391 |
| Parties | The BOARD OF SUPERVISORS OF MARICOPA COUNTY, Arizona, by Henry H. Haws, George L. Campbell and Hawley Atkinson, a majority thereof, Appellant, v. Rhea WOODALL, Clerk of the Board of Supervisors of Maricopa County, Arizona, Charles F. Hyder, Maricopa County Attorney and Maricopa County ex rel. Charles F. Hyder, Appellees. 3960. |
| Court | Arizona Court of Appeals |
We decide in this case that a county board of supervisors may hire attorneys on its staff to render legal advice to the board and its departments and that the right to do so does not conflict with the statutory authority of the county attorney.
The majority of the Maricopa County Board of Supervisors, Henry Haws, George L. Campbell and Hawley Atkinson (hereinafter "the Board"), brought a complaint for special action against Rhea Woodall, Clerk of the Board of Supervisors (hereinafter "the Clerk"). In it, the Board sought an order that five staff attorneys (Richard Zielinski, James G. Bond, Douglas Zimmerman, William J. Carter and Joseph A. Mayfield) be paid their salaries then being denied by the Clerk. The complaint also sought a declaration that no provision of law precluded the Board of Supervisors from hiring in-house counsel to perform advisory functions of a legal nature. Thereafter, the Maricopa County Attorney, Charles F. Hyder (hereinafter "the County Attorney") was allowed to intervene in the proceedings by filing a complaint in special action. The County Attorney sought an order enjoining the Clerk from paying the salaries of the staff attorneys. Both the Board and the County Attorney then moved for summary judgment. The motions were supported by affidavits and legal memoranda. After argument, the trial court entered judgment sustaining the position of the County Attorney and the Clerk. The operative portion of the judgment is set forth in the footnote. 1 The motion of the Board for a new trial was denied. The Arizona Supreme Court declined jurisdiction in a special action brought by the Board in that court and the appeal to this court followed.
There is no dispute concerning the material facts. The staff attorneys are full-time employees of the county hired by the Board of Supervisors to perform a variety of functions which include both administrative duties and the rendition of legal advice. It is apparent from the record that very often the two functions are blended together. More particularly, the attorneys advised the Board of Supervisors and its subordinate boards and commissions on planning, zoning and building codes, on the general and statutory duties of the Board of Supervisors, on condemnation and flood control and on health and hospital matters. For purposes of this opinion, the functions and duties of the staff attorneys need not be further detailed. There is some dispute between the parties as to how long the Board of Supervisors has followed the practice of hiring staff attorneys and the precise duties which they performed. There is some indication the practice goes back to 1952; the County Attorney argues that the present system began in 1972. While a long-standing practice might in another case prove material, we do not think that it has any bearing on the legal issues decided here. It should also be pointed out that we are concerned in this case only with those legal services which do not constitute litigation. Although the judgment of the trial court prohibits the Board of Supervisors from engaging counsel for litigation purposes, the issue was not raised directly in the trial court and is not argued on appeal.
A further factual matter, which is undisputed, is that the County Attorney stands ready, willing and able to furnish to the Board of Supervisors and its departments, as well as to other agencies of the county, such legal advice and representation as may be required. Both sides have made it clear that, for the purpose of this case, there has been no failure by the County Attorney to make legal services available. By the same token, the County attorney has not consented to the employment of staff attorneys by the Board of Supervisors or to their rendition of legal advice.
The first question is jurisdictional. To vest the court with jurisdiction in an action for declaratory judgment, the complaint must set forth sufficient facts to establish that there is a justiciable controversy. Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 497 P.2d 534 (1972). The controversy must be real and not theoretical. Moore v. Bolin, 70 Ariz. 354, 220 P.2d 850 (1950). The parties must have adverse interests.
The County Attorney contends that there is no justiciable controversy between the Board and the Clerk and that, therefore, the court lacks jurisdiction to entertain the claim. In support of this contention he relies upon Riley v. County of Cochise, 10 Ariz.App. 55, 455 P.2d 1005 (1969) and Riley v. County of Cochise, 10 Ariz.App. 60, 455 P.2d 1010 (1969).
In my opinion, a sufficient adverse interest to create a justiciable controversy is lacking in this case between the Board and its clerk. Were it not for the intervention of the County Attorney, the case would require dismissal.
How can the presence of the County Attorney create a justiciable controversy when the Riley cases held that the requisite adversity of interest was lacking between the board of supervisors and the county attorney? The answer lies in the specific claim made here but not in the Riley cases that the Board of Supervisors has usurped statutory powers of the County Attorney in hiring attorneys for legal advise. This is indeed a real controversy and the parties are adverse. Cf. Maricopa County v. Biaett, 21 Ariz.App. 286, 518 P.2d 1003 (1974). The County Attorney has a definite interest in the exclusive statutory right to render legal advice asserted here, and the Board of Supervisors has denied that right. The Riley cases are distinguishable inasmuch as the "difference of opinion" in those cases did not involve a determination of whether an exclusive power given one county officer had been usurped by another.
It is necessary to explain, however, how the court has jurisdiction over a case which originated without the required justiciability. The answer is that, while the case was Subject to dismissal for lack of jurisdiction when the only parties were the Board and its clerk, it was not dismissed prior to the intervention of the County Attorney. While the original pleadings would not have supported a judgment because of the jurisdictional infirmity, the case, so long as it had not been dismissed, could support the intervention of a new party which introduced the required jurisdictional element. There is support for this in cases holding that, if a case is improperly brought, the court may retain jurisdiction to adjudicate issues raised by intervention. Fuller v. Volk, 351 F.2d 323 (3rd Cir. 1965). See also Miller & Miller Auctioneers, Inc. v. G. W. Murphy Industries, Inc., 472 F.2d 893 (10th Cir. 1973); Atkins v. State Board of Education of North Carolina, 418 F.2d 874 (4th Cir. 1969); Pikor v. Cinerama Productions Corp., 25 F.R.D. 92 (S.D.N.Y.1960); Truncale v. Universal Pictures Co., 76 F.Supp. 465 (S.D.N.Y.1948); In re Raabe, Glissman & Co., 71 F.Supp. 678 (S.D.N.Y.1947); 3B Moore's Federal Practice P 24.16(2) (1977); 7A Wright & Miller, Federal Practice and Procedure: Civil § 1917 (1972). Although this issue was not squarely raised in the trial court, it is our duty to consider it on review since the question of jurisdiction may be raised at any time. In my opinion, the trial court had jurisdiction to consider the issues raised by the pleadings of the Board and the County Attorney.
The case involves an interpretation of statutory duties and powers assigned to the county attorney, on the one hand, and the board of supervisors, on the other. The Arizona Constitution establishes that the county attorney and supervisors are county officers (art. 12, § 3) and that their duties and powers shall be as prescribed by law (art. 12, § 4). The board of supervisors possesses only those powers which have been expressly or by necessary implication delegated to it by the legislature. Hart v. Bayless Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959); Haupt v. Maricopa County, 8 Ariz. 102, 68 P. 525 (1902); Maricopa County v. Black, 19 Ariz.App. 239, 506 P.2d 279 (1973). While our attention is directed to no case in Arizona so limiting the powers of the county attorney, it would logically follow that the same rule of law would apply. The powers and duties of the board of supervisors are enumerated in A.R.S. § 11-251. The board is given direct power to supervise all officers of the county and its subdivisions. A.R.S. § 11-251(1). The enumerated powers which have some direct relevance to this case are set forth in A.R.S. § 11-251(14), which states that the board may "direct and control the prosecution and defense of all actions to which the county is a party, and compromise them," and A.R.S. § 11-251(29), which states that the board may "do and perform all other acts and things necessary to the full discharge of its duties as the legislative authority of the county government."
The county attorney derives his powers and duties from A.R.S. § 11-532. A.R.S. § 11-532(A)(9), states he shall "act as the legal advisor to the board of supervisors, attend their meetings and oppose claims against the county which he...
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Board of Sup'rs of Maricopa County v. Woodall
...entered judgment in favor of Charles F. Hyder, County Attorney, intervenor in the action. The Court of Appeals reversed, 120 Ariz. 391, 586 P.2d 640 (App.1978). We accepted jurisdiction to review. Opinion of the Court of Appeals vacated. Judgment of the Superior Court affirmed in part and r......
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