Riley, Hoggatt & Suagee, P.C. v. English

• Decision Date: 09 December 1993
• Docket Number: No. CV-92-0355-PR,CV-92-0355-PR
• Citation: 177 Ariz. 10,864 P.2d 1042
• Parties: RILEY, HOGGATT & SUAGEE, P.C., Plaintiff/Appellant, v. Ann ENGLISH, Gene Manring, and Kim Bennett, Chairman and Members of the Cochise County Board of Supervisors and Cochise County, a body public, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 1042

864 P.2d 1042

177 Ariz. 10

RILEY, HOGGATT & SUAGEE, P.C., Plaintiff/Appellant, v. Ann ENGLISH, Gene Manring, and Kim Bennett, Chairman and Members of the Cochise County Board of Supervisors and Cochise County, a body public, Defendants/Appellees.

No. CV-92-0355-PR.

Supreme Court of Arizona, In Banc.

Dec. 9, 1993.

[177 Ariz. 11] Kerley & Sierra by James K. Kerley, Sierra Vista, and Alexander L. Sierra, Tucson, for plaintiff/appellant.

Alan K. Polley, Cochise County Atty. by Paula N. Wilk, Bisbee, for defendants/appellees.

AMENDED OPINION

Memorandum Decision of the Court of Appeals, Division Two, filed July 9, 1992, Vacated

FELDMAN, Chief Justice.

The superior court dismissed a claim for legal fees and costs submitted by Riley, Hoggatt & Suagee, P.C. ("Plaintiff"), finding that the claim failed as a matter of law. We granted review because the issue has statewide importance. Ariz.R.Civ.App.P. 23(c)(4). We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 12-120.24, and Ariz.R.Civ.App.P. 23.

FACTS AND PROCEDURAL HISTORY

In sentencing a criminal defendant who lived in Willcox, a Cochise County justice of the peace (the "Judge") ordered that the defendant serve his thirty-day sentence in the Willcox "branch" of the Cochise County jail. The purpose was to allow the defendant to participate in a punishment program that would permit him to continue his employment and serve his sentence at night and on weekends. A.R.S. § 28-693(D) authorizes such sentences. The Cochise County Sheriff (the "Sheriff") refused to incarcerate the defendant in the Willcox jail, relying on the pre-1989 versions of A.R.S. § 11-441(A)(5) and § 31-101. The relevant provisions authorize a sheriff, among other things, to "keep the county jail ... and the prisoners therein."

The Sheriff had adopted his own policy, which provided that the county jails would accept prisoners sentenced under the "hardship" provisions of A.R.S. § 28-693 only if those prisoners were incarcerated in Bisbee. Judd v. Bollman, 166 Ariz. 417, 418-19, 803 P.2d 138, 139-40 (Ct.App.1990) (rev. denied Jan. 15, 1991). Given the distance between Willcox and Bisbee, the Sheriff's policy effectively negated the ability of justices of the peace to sentence misdemeanor prisoners under A.R.S. § 28-693(D). In the present case, the Judge did not order the Sheriff to take any action other than hold the defendant in the existing county jail facility in Willcox.

The Sheriff claimed the Judge's order exceeded his jurisdiction. Represented by the Cochise County Attorney, the Sheriff filed a special action ¹ in superior court, naming the Judge as respondent. See Ariz.R.P.Spec.Act. 2(a)(1). That action challenged the jurisdiction and authority of justices of the peace to make orders directing the place of incarceration. The Judge retained Plaintiff's predecessor, Riley & Hoggatt, P.C., to represent him. Following a hearing, the superior court vacated the Judge's order, finding that he had exceeded his authority and jurisdiction. The Judge appealed, the court of appeals affirmed, and we denied review. Judd, 166 Ariz. at 417-18, 803 P.2d at 138-39.

Plaintiff then requested payment from Cochise County for the legal fees and costs incurred in representing the Judge. When the county denied the request, Plaintiff filed an action against Cochise County and its Board of Supervisors ("Defendants"). The superior court granted summary judgment in favor of Defendants, and the court of appeals affirmed. Riley, Hoggatt & Suagee, P.C. v. English, No. 2 CA-CV 92-0015 (July 9, 1992) (mem. dec.). Plaintiff sought, and we granted, review of the following issue:

Did the trial court err in granting [the county's] motion to dismiss, treated as a motion for summary judgment, when the facts, viewed in a light most favorable to [Plaintiff] establish [Plaintiff's] right to recover?

DISCUSSION

Summary judgment is proper when, factually, "reasonable people could not agree with the conclusion advanced by the proponent of the claim," Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990), and, legally, the movant is entitled to judgment as a matter of law, Ariz.R.Civ.P. 56(c). Our review is de novo, viewing the evidence in a light most favorable Because the county attorney filed a special action on behalf of the Sheriff, the county attorney could not also represent the Judge. See Ariz.R.Sup.Ct. 42, ER 1.7. As we have stated, however, "the county attorney is responsible for providing legal advice and representation to justices of the peace so requesting." Collins v. Corbin, 160 Ariz. 165, 167, 771 P.2d 1380, 1382 (1989). The county attorney also is responsible for representing the county sheriff. See generally A.R.S. § 11-532. Thus, what is the appropriate course when these two responsibilities collide?

                to the non-movant.   [177 Ariz. 13]  Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990)
                

Justices of the peace are county officers and integral parts of our judicial system. Collins, 160 Ariz. at 165, 771 P.2d at 1380. Because justices of the peace serve a vital function in the judiciary, Arizona "recognize[s] [their] inherent power ... to require the providing of personnel in order to perform [their] necessary functions." Reinhold v. Board of Supervisors, 139 Ariz. 227, 232, 677 P.2d 1335, 1340 (Ct.App.1984). This power can include hiring counsel to assert the position of the justice of the peace (a county officer) in litigation against other branches of government. See Deddens v. Cochise County, 113 Ariz. 75, 77-78, 546 P.2d 811, 814-15 (1976); Maricopa County v. Biaett, 21 Ariz.App. 286, 290, 518 P.2d 1003, 1007 (1974).

The power to obtain necessary services, however, is limited and "should be exercised only when there is no established method for obtaining needed personnel or when a reasonable, good faith, diligent effort to utilize such methods has been attempted and has failed." Reinhold, 139 Ariz. at 232, 677 P.2d at 1340 (emphasis added). When a justice of the peace has exercised this inherent power, a county has the duty to approve a request for legal fees and costs, absent a clear showing that the justice of the peace acted arbitrarily, capriciously, or unreasonably in procuring such services. See Maricopa County v. Dann, 157 Ariz. 396, 398, 758 P.2d 1298, 1300 (1988); Reinhold, 139 Ariz. at 232, 677 P.2d at 1340.

Thus, there are two factors that determine whether the Judge properly obtained independent counsel to represent him in the special action. First, we must establish the need to litigate. Second, we must decide whether, as a matter of law, there is an established method for obtaining legal services and, if so, whether the Judge made a reasonable, good faith, diligent, but unsuccessful, effort to utilize that method.

A. Did the Judge have a legitimate need or purpose in defending his order?

The dissent focuses on standing--arguing that the Judge had no need to retain counsel to litigate because he had no standing to do so. However, this narrow issue is now precluded. In all six court appearances, the county never raised lack of standing as a defense in either the underlying case or in this action for legal fees. Moreover, in the present context, standing does not refer to either in personam or subject matter jurisdiction. Rather, it refers to the ethical propriety of the Judge appearing as a litigant. See Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1 (1993).

The county could have properly raised this issue in Judd; arguably, the appellate court in Judd could have raised it sua sponte. See id. at 332, 849 P.2d at 2 (although not raised by the parties, the appellate court dismissed the case, holding that the trial court lacked standing to litigate). Neither the county nor the appellate court raised the issue. The case was not dismissed for lack of standing; it was decided on its merits, and the decision is final. It is simply too late now to use the present case, a dispute over the county's liability for fees, to make a collateral attack on the Judge's standing in the previous case.

The standing issue, of course, is inextricably intertwined with the broader question of the Judge's need to litigate. In a special action contesting the validity of a judicial order, the trial court must be In this case the facts show that the Judge was not merely defending a case-specific ruling. By the time the issues between the Judge and the Sheriff were tried, the defendant had completed his sentence at Bisbee and was not even named as a party to the special action. Thus, for him the issues were moot. Therefore, in attempting to uphold the validity of the order imposing a form of community punishment on a defendant convicted of misdemeanor reckless driving and sentenced to thirty days in jail, the Judge obviously litigated issues important to the administration of his court. Judd centered on a conflict between a sheriff's right to decide where to confine prisoners and a trial court's pragmatic ability to apply A.R.S. § 28-693(D) in a rural county. Thus, under Hurles, and particularly in light of the mootness of the sentence, the Judge's actions were "defense-of-policy" rather than an attempt to defend a single ruling. Id.; see also Dunn v. Superior Court, 160 Ariz. 311, 772 P.2d 1164 (Ct.App.1989) (superior court judge responded by letter to a special action challenging his refusal to grant a motion for a change of judge; the ruling defended a court's common administrative practice).

                named [177 Ariz. 14] as a respondent.  See Id. at 332, 849 P.2d at 2 (1993).  This is normally only a formality, with the actual litigant named as "real party in interest."  Ariz.R.P.Spec.Act. 2(a)(1).  In most cases, the trial court's interest is nominal, therefore, and provides the judge no valid reason to respond to the special action.  Id. at 332, 849 P.2d at 2.   However, in certain circumstances a trial judge should

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