Fund Manager, Public Safety Personnel Retirement System v. Corbin
| Decision Date | 02 August 1988 |
| Docket Number | Nos. 1,CA-CIV,s. 1 |
| Citation | 778 P.2d 1244,161 Ariz. 348 |
| Parties | The FUND MANAGER, PUBLIC SAFETY PERSONNEL RETIREMENT SYSTEM, Plaintiff-Appellee, v. Robert K. CORBIN, Attorney General of the State of Arizona, Defendant-Appellant. The STATE of Arizona, Plaintiff-Appellant, v. EATON, LAZARUS, DODGE AND LOWRY, LTD., a professional corporation, Defendant-Appellee. 9739, 1 9667. |
| Court | Arizona Court of Appeals |
The appeal in 1 CA-CIV 9739 is from summary judgment entered in superior court cause no. C-565072 in favor of The Fund Manager of the Public Safety Personnel Retirement System (Fund Manager) after proceedings directed by this court in Fund Manager v. Superior Court, 152 Ariz. 255, 731 P.2d 620 (App.1986). The parties in that appeal have raised the following issues:
1. Whether appellant Robert K. Corbin, Attorney General of the State of Arizona (Attorney General), has "standing" or legal authority to challenge the constitutionality of an enactment of the Arizona legislature;
2. Whether Laws 1987, ch. 180 (SB 1098) retroactively exempts the Fund Manager from the duty to comply with the provisions of the Arizona Procurement Code, A.R.S. §§ 41-2501 to -2652 (Supp.1987);
3. Whether § 3 of SB 1098, which purports to make the enactment retroactive, is unconstitutional because:
(a) the title to SB 1098 does not mention retroactivity, in violation of Ariz. Const. art. 4, pt. 2, § 13;
(b) retroactively applied, SB 1098 is a special law remitting a fine, penalty, or forfeiture or relinquishing an indebtedness to the state, in violation of Ariz. Const. art. 4, pt. 2, §§ 19(14) and 19(18);
(c) retroactively applied, SB 1098 unconstitutionally impairs vested rights and invades the province of the judiciary;
(d) retroactively applied, SB 1098 constitutes a donation to an individual, association, or corporation, in violation of Ariz. Const. art. 9, § 7;
(e) retroactively applied, SB 1098 is not "curative" legislation, and even if it were, that fact would not excuse any constitutional violation.
The appeal in 1 CA-CIV 9667 is from an order entered in superior court cause no. CV-87-10301, dismissing without prejudice the State of Arizona's action against Eaton, Lazarus, Dodge & Lowry, Ltd. (Eaton Lazarus), for recovery of certain allegedly illegal payments of public monies made by the Fund Manager to Eaton Lazarus. By order of this court, these two appeals were consolidated for hearing and disposition.
Although the parties in 1 CA-CIV 9667 have also briefed numerous issues, the state has conceded that if the Attorney General's appeal in 1 CA-CIV 9739 is unsuccessful, the state's appeal in 1 CA-CIV 9667 must also fail. Therefore, because we affirm the judgment in 1 CA-CIV 9739, we do not address the issues raised in 1 CA-CIV 9667.
This court's opinion in Fund Manager v. Superior Court establishes the background for both appeals. We first briefly summarize that opinion, supplementing it where appropriate.
The Fund Manager is a five-member body that is charged by A.R.S. § 38-848 with managing the Public Safety Personnel Retirement System (System). The System was initially created by Laws 1968, ch. 85. Before July 1980, the Attorney General was the exclusive legal representative of the Fund Manager. In July 1980, the legislature amended § 38-848(J) (now § 38-848(M)) to add the capitalized language:
"The attorney general OR AN ATTORNEY APPROVED BY THE ATTORNEY GENERAL AND PAID BY THE FUND shall be the attorney for the fund manager and shall represent the fund manager in any legal proceeding." See Laws 1980, ch. 146.
In January 1981, the Fund Manager hired a private law firm to act as its legal counsel and sought the Attorney General's approval. The Attorney General notified the Fund Manager that he would not approve the firm because it had not been selected in accordance with the competitive bidding procedures then codified at A.R.S. §§ 41-1051 to -1056 (repealed and replaced with the Arizona Procurement Code, A.R.S. §§ 41-2501 to -2652, effective January 1, 1985). After complying with those procedures the Fund Manager retained the same firm subject to the Attorney General's approval, which was granted on June 24, 1981.
In the spring of 1985, unaware of the new procurement code, the Fund Manager solicited new bids for legal counsel under the old procedures. Through that process, the Fund Manager chose its current counsel, Eaton Lazarus.
The Fund Manager then asked the Attorney General to approve its choice. The Attorney General declined to do so, stating that the Fund Manager had failed to comply with certain provisions of the procurement code and related regulations. The Attorney General also informed the Fund Manager that once the procurement code and applicable rules had been complied with, the Attorney General's approval would be subject to three conditions: that outside counsel be required to submit opinions and advice to the Attorney General for review and forwarding to the Fund Manager; that outside counsel not initiate litigation on behalf of the Fund Manager or appeal any decisions rendered against it without the Attorney General's approval; and that the contract with outside counsel be terminable June 30, 1986, after which the Attorney General would consider whether to resume his own representation of the Fund Manager.
After further exchanges, during which the Attorney General's office informed the Fund Manager that it was prepared to seek to enjoin the Fund Manager from compensating Eaton Lazarus for legal representation, the Fund Manager filed a superior court special action (cause no. C-565072) against the Attorney General, seeking extraordinary, declaratory, and injunctive relief. The trial court held that the Fund Manager was subject to the procurement code; that the right to decide whether the Attorney General or private counsel would represent the Fund Manager belonged to the Attorney General; and that the Attorney General's decision to represent the Fund Manager was within his statutory authority and could not be an abuse of discretion.
The Fund Manager then petitioned this court for special action relief. This court accepted jurisdiction and held that: (1) the Attorney General could approve or disapprove the Fund Manager's choice of outside counsel, but not its decision to employ outside counsel; (2) the Attorney General had no authority to impose restrictive conditions upon the Fund Manager's use of outside counsel; and (3) the Fund Manager was obligated to comply with the procurement code before expending public monies. 152 Ariz. at 258-60, 731 P.2d at 623-25. The court remanded to the trial court "to determine whether the [procurement] code was complied with before the fund manager hired Eaton Lazarus as its outside counsel." 152 Ariz. at 261, 731 P.2d at 626.
While a petition for review was pending in the Arizona Supreme Court, the Fund Manager again asked the Attorney General to approve Eaton Lazarus as the Fund Manager's counsel. On January 27, 1987, the Attorney General informed the Fund Manager that it had substantially and adequately complied with all procurement code provisions in hiring Eaton Lazarus except the requirement of A.R.S. § 41-2513(C) that payment for outside professional services not be made unless "pursuant to a fully approved written contract." The Attorney General specified the areas in which the contract previously submitted was deficient and told the Fund Manager that he would approve a contract that cured the specified deficiencies.
On January 28, 1987, the Arizona Supreme Court denied review of this court's opinion in Fund Manager v. Superior Court. On January 30, 1987, the Fund Manager sent the Attorney General a contract revised in accordance with the Attorney General's specifications. On March 12, 1987, the Attorney General formally approved the revised contract retroactive to February 18, 1987.
Before Judge Sargeant on remand, the Attorney General and the Fund Manager prepared cross-motions for summary judgment on the question of whether the Fund Manager had complied with the procurement code before initially hiring Eaton Lazarus. On April 15, 1987, before briefing in that matter was complete, the Attorney General filed a separate action (cause no. CV-87-10301) on behalf of the state against Eaton Lazarus. That case was assigned to Judge Riddel. The complaint alleged that the Fund Manager had hired Eaton Lazarus without complying with the provisions of the procurement code and that all payments it had made to Eaton Lazarus before February 18, 1987, were therefore illegal expenditures of public funds. The complaint sought recovery of these funds plus a twenty percent penalty, pursuant to A.R.S. § 35-212. 1
On April 21, 1987, Eaton Lazarus filed an alternative motion to dismiss the state's action or to consolidate it with the remanded Fund Manager's action against the Attorney General. In support of the motion, Eaton Lazarus argued that because the two pending actions presented common questions of law and fact, no "justiciable controversy" existed in the state's action against Eaton Lazarus.
On April 27, 1987, before briefing was complete on either the cross-motions for summary judgment in the Fund Manager's action or Eaton Lazarus' motion to dismiss the state's action, SB 1098 was enacted and became effective. Among other things § 1 of SB 1098 added a new subsection (L) to A.R.S. § 38-848, providing:
...
To continue reading
Request your trial
-
State ex rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd.
...State ex rel. Woods v. Block , 189 Ariz. 269, 272, 942 P.2d 428, 431 (1997) (quoting Fund Manager, Pub. Safety Pers. Ret. Sys. v. Corbin , 161 Ariz. 348, 354, 778 P.2d 1244, 1300 (App. 1988), and citing Ariz. State Land Dep't v. McFate , 87 Ariz. 139, 142, 348 P.2d 912 (1960) ). In assertin......
-
State v. Nibert
...of states do not recognize the inherent common law powers of the Office of Attorney General. See Fund Manager, Pub. Safety Pers. Ret. Sys. v. Corbin, 161 Ariz. 348, 778 P.2d 1244 (Ct.App.1988); Blumenthal v. Barnes, 261 Conn. 434, 804 A.2d 152 (2002); State v. Blyth, 226 N.W.2d 250 (Iowa 19......
-
State v. City of Oak Creek
...attorney general to attack an Arizona statute's constitutionality in attempting to defend the state constitution. Fund Manager v. Corbin, 778 P.2d 1244, 1250 (Ariz. App. 1988). The attorney general appears to reason that he may attack the constitutionality of Wis. Stat. ? 30.056 in attempti......
-
Burkons v. Ticor Title Ins. Co. of California, 1
... ... State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 24, 725 P.2d ... land and disposing of it ... , to provide a fund out of which the vendor is paid for his land, the ... 's supervisor and former Ticor branch manager, Albert Pieri, and Joyce Yancy in unsworn ... The safety of the seller's lien depends on the ... Page ... An escrow company holds itself out to the public as having superior knowledge and skill in the ... The formalized system of the real estate sales industry from purchase ... ...