Hess v. Purcell

• Decision Date: 22 March 2012
• Docket Number: No. 1 CA–CV 10–0911.,1 CA–CV 10–0911.
• Citation: Hess v. Purcell, 229 Ariz. 250, 274 P.3d 520, 630 Ariz. Adv. Rep. 17 (Ariz. App. 2012)
• Parties: Barry HESS, Candidate; Judith Lewis, voter; Karen Johnson, voter; John D. Brakey, voter; Frank Henry, voter; Jack Scholnick, voter, Plaintiffs/Appellees, v. Helen PURCELL, Maricopa County Recorder; Maricopa County Board of Supervisors, a body politic; Fulton Brock; Don Stapley; Andrew Kunasek; Max W. Wilson; Mary Rose Wilcox, Defendants/Appellants.
• Court: Arizona Court of Appeals

229 Ariz. 250

274 P.3d 520

630 Ariz. Adv. Rep. 17

Barry HESS, Candidate; Judith Lewis, voter; Karen Johnson, voter; John D. Brakey, voter; Frank Henry, voter; Jack Scholnick, voter, Plaintiffs/Appellees,

v.Helen PURCELL, MaricopaCounty Recorder; Maricopa County Board of Supervisors, a body politic; Fulton Brock; Don Stapley; Andrew Kunasek; Max W. Wilson; Mary Rose Wilcox, Defendants/Appellants.

No. 1 CA–CV 10–0911.

Court of Appeals of Arizona, Division 1, Department D.

March 22, 2012.

William G. Montgomery, Maricopa County Attorney by M. Colleen Connor, Deputy County Attorney, Phoenix, Attorneys for Defendants/Appellants.

Roach Law Firm L.L.C. by Brad Roach, Tucson, Attorney for Plaintiffs/Appellees.

OPINION

PORTLEY, Judge.

¶ 1Maricopa County(“County”)¹ challenges the award of attorneys' fees and expenses awarded to Barry Hess and five voters (collectively, “Hess”) for the partial success in their mandamus action.Because the trial court did not abuse its discretion, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In anticipation of the 2010 primary and general election, Barry Hess, a gubernatorial candidate, and five citizens filed a special action petition to compel the County to perform its statutory election duties.The petition, in relevant part, asserted that:

19.Defendants have not ordered nor intend to instruct their pollworkers to sign the polltapes (also known as “results tapes”) that are printed by the precinct electronic voting machines, in violation of the state-standard procedures manual at page 144 under the subsection “keypad.”...

20.Defendants have ordered properly credentialed party observers in recent past elections not to observe the central tabulator systems, in violation of the state-standard procedures manual at page 105 the list of items the observers are specifically allowed to see by law.[sic]Plaintiffs allege defendants intent [sic] to continue this illegal practice.The procedures manual is established as binding under law at A.R.S. §§ [sic] 16–452 and this violation is defined as a class 2 misdemeanor.

....

26.Respondents have chosen in previous elections and intend for this election to produce reports of election totals that do not segregate the vote totals by type, particularly mail-in, precinct and provisional totals.This procedure violates the implicit right to observe the election process (both as political observers and public observers)....In addition, the mandate to provide totals of votes and ballots cast by precinct at A.R.S. §§ [sic] 16–646 pre-dates the implementation of widespread mail-in voting; the mail-in votes are processed as a distinct type of precinct and a failure to report on those mail-in votes separately violates the goal of process transparency at 16–646.Respondents have chosen in previous elections and intend to continue in this election to select (for hand auditing) precincts, auditable mail-in vote batches and races before publishing complete unofficial vote totals, in violation of A.R.S. §§ [sic] 16–602 paragraph B1....

¶ 3 The petition also alleged that the County: (1) installed software on electronic systems to allow communication over Internet and cell communications networks in violation of the state procedures manual; (2) had used and intended to use uncertified software on the certified election management system; (3) prevented polling place observers from viewing or photographing poll tapes; (4) had ordered poll workers not to place poll tapes produced by electronic voting machines into the sealed official returns envelope; and (5) allowed one person to transport ballot material, in violation of the two-person requirement.

¶ 4 The issues were tried, and the trial court granted the petitioners partial mandamus relief on paragraphs 19, 20 and 26.Specifically, the court found “in favor” of Hess on the paragraph 19 claim because “the corrective action they were seeking has been accomplished.”The court also ordered the County to “comply with the Arizona Election Procedure Manual and ensure that the observers have an unobstructed viewing area to [sic] the computer processing, including the ability to view the computer monitor,” to resolve the paragraph 20 claim.Finally, the court granted “the requested relief [on the paragraph 26 claim] pursuant to the agreement articulated by the parties on the record.”

¶ 5 Hess then filed an application for attorneys' fees and expenses pursuant to Arizona Revised Statutes(“A.R.S.”)section 12–2030(West 2012).²The County objected, but the trial court granted Hess a portion of the $44,198.98 requested fees and expenses because they had prevailed on “a small portion of their claim.”We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, andA.R.S. § 12–2101(A)(West 2012).

DISCUSSION

I.

¶ 6We review the application of A.R.S. § 12–2030 de novo because it is a question of law.John C. Lincoln Hosp. & Health Corp. v. Maricopa County,208 Ariz. 532, 545, ¶ 45, 96 P.3d 530, 543(App.2004)(citingMotel 6 Operating Ltd. P'ship v. City of Flagstaff,195 Ariz. 569, 572, ¶ 15, 991 P.2d 272, 275(App.1999)).The statute provides that:

A.A court shall award fees and other expenses to any party other than this state or any political subdivision of this state which prevails by an adjudication on the merits in a civil action brought by the party against the state, any political subdivision of this state or an intervenor to compel a state officer or any officer of any political subdivision of this state to perform an act imposed by law as a duty on the officer.

B.As used in this section, “fees and other expenses” includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, report, test or project found by the court to be necessary for preparation of the party's case, and reasonable and necessary attorney fees.

A.R.S. § 12–2030.

¶ 7 To qualify for fees, a party must show that it: “(1) prevailed on the merits (2) in a civil action (3) filed against the [s]tate or a political subdivision of the [s]tate(4) to compel a [s]tate officer or any officer of any political subdivision to perform a duty imposed by law.”Bilke v. State,221 Ariz. 60, 62, ¶ 7, 209 P.3d 1056, 1058(App.2009)(citingA.R.S. § 12–2030(A)).If there is evidence to support the four elements, the trial court must award fees and expenses, but the amount of the award is left to the sound discretion of the court.Exodyne Props., Inc. v. City of Phoenix,165 Ariz. 373, 380, 798 P.2d 1382, 1389(App.1990).

¶ 8 Despite the partial award, the County contends that Hess only prevailed on a portion of their paragraph 20 claim.Hess, however, litigated the claim and relief was granted.Accordingly, Hess prevailed.SeeS & R Props. v. Maricopa County,178 Ariz. 491, 502–03, 875 P.2d 150, 161–62(App.1993)(citingExodyne Props.,165 Ariz. 373, 798 P.2d 1382)(plaintiff taxpayers were prevailing parties under § 12–2030 even though they did not prevail on their original relief request for refunds).

¶ 9 The County also contends that the ruling in favor of Hess on the paragraph 19 claim did not constitute an adjudication on the merits because the County had taken “corrective action.”We disagree.

¶ 10 In Tom Mulcaire Contracting, LLC v. City of Cottonwood,we examined the prevailing party requirement and affirmed the attorneys' fee award even though the prevailing party did not obtain an order compelling performance of a duty or other affirmative relief.227 Ariz. 533, 534, ¶ 1, 260 P.3d 1098, 1099(App.2011).There, the unsuccessful contractor challenged Cottonwood's construction bid process and filed a mandamus action.Id.¶ 2.The city subsequently terminated the contract awarded to the successful bidder, and decided to self-perform the work—steps taken to attempt to moot the special action.Id.¶¶ 3–4.After noting that A.R.S. § 12–2030 requires mandamus relief to prevail, we also found that our supreme court had stated that mandamus relief implicates equitable principles, including the maxim that “equity will not permit a wrong to be without a remedy.”Id. at 537, ¶ 14, 260 P.3d at 1102.Consequently, we determined that, but for the city's actions, the contractor would have prevailed and equity would not allow the city to moot the contractor's claim and deprive it of fees.Id.¶ 15(citingLoiselle v. Cosas Mgmt. Grp., LLC,224 Ariz. 207, 210, ¶ 8, 228 P.3d 943, 946(App.2010);Richardson v. City of Rutland,164 Vt. 422, 427, 671 A.2d 1245, 1249(1995)).

¶ 11 Hess is the prevailing party.They had to seek special action relief to convince the County to comply with the reporting requirements, and successfully litigated their paragraph 20 claim on the merits.The absence of a mandamus order does not change the fact that, but for the special action, the County may not have altered its process.Although the County contends that it was already performing its statutory duties, the finding “in favor” of Hess and the reference to “corrective action” belies the assertion.And, the County has not pointed to any portion of the record that undermines the trial court's ruling.³

¶ 12 Citing Arnold v. Arizona Board of Pardons and Paroles, the County argues that fees and expenses cannot be awarded where the parties settled the dispute.167 Ariz. 155, 805 P.2d 388(App.1990).In Arnold, we held that appellants who had settled with the board and secured new hearings did not prevail in an adjudication on the merits and were not entitled to fees pursuant to § 12–2030.Id. at 159, 805 P.2d at 392.

¶ 13 Unlike Arnold, the trial court here specifically found “in favor” of Hess because “the corrective action they were seeking ha[d] been accomplished.”The finding does not mention any agreement or settlement.Consequently, the trial court was not precluded from considering the resolution of the paragraph 19 claim in determining to award fees and expenses.

¶ 14The trial court,...