Riley v. Cochise County

• Decision Date: 11 June 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 455 P.2d 1005,10 Ariz.App. 55
• Parties: Richard J. RILEY, as County Attorney of Cochise County, State of Arizona, Appellant, v. COUNTY OF COCHISE, W. R. (Bill) Moore, Joe G. Good, and Bert B. Watkins, constituting the Board of Supervisors of Cochise County; and the Board of Supervisors of Cochise County, State of Arizona, Appellees. 683.
• Court: Arizona Court of Appeals

Page 1005

455 P.2d 1005

10 Ariz.App. 55

Richard J. RILEY, as County Attorney of Cochise County, State of Arizona, Appellant, v. COUNTY OF COCHISE, W. R. (Bill) Moore, Joe G. Good, and Bert B. Watkins, constituting the Board of Supervisors of Cochise County; and the Board of Supervisors of Cochise County, State of Arizona, Appellees.

No. 2 CA-CIV 683.

Court of Appeals of Arizona.

June 11, 1969.

Richard J. Riley, Cochise County Atty., Bisbee, by Alan L. Slaughter, Chief Deputy County Atty., for appellant.

Wesley, E. Polley, Bisbee, for appellees.

MOLLOY, Chief Judge.

This appeal is taken from a judgment entered in a declaratory judgment action instituted by the appellees. Prior to the filing of any briefs in this appeal, a document entitled 'Petition to Intervene or in the Alternative Motion for Leave to Appear as Amicus Curiae' was filed in this court by J. Mercer Johnson, attorney at law.

As grounds for intervention, he states that (1) he is the real party in interest, (2) his interest in the subject matter of this appeal is adverse to or will be affected by the reversal or modification of the judgment appealed from, (3) he has an interest in opposing the objects sought to be accomplished by this appeal, (4) he would be formally bound by a judgment entered in his absence, and (5) there is a possibility that the appellees will not appear in this court to defend the judgment. Although this decision obviates ruling on the attorney's request, it would appear that intervention in this court is not permissible. See Board of Directors, etc. v. Board of Education, etc., 251 Iowa 929, 103 N.W.2d 696 (1960); Stephens v. First Nat. Bank of Nevada, 64 Nev. 292, 182 P.2d 146 (1947); 4 C.J.S. Appeal & Error § 402.

Consideration of this petition, however, precipitated our examination of the record on appeal. As a consequence thereof, the question of 'jurisdiction' raised its ugly head--a question which this court is bound to inquire into Ex mero motu. ¹ If, as we shall subsequently see, the trial court had no jurisdiction to entertain this lawsuit, appellate jurisdiction likewise fails. Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946); Revis v. Daugherty, Atty. Gen., 215 Ky. 823, 287 S.W. 28 (1926).

The lawsuit from which this appeal was taken was instituted by the filing of a complaint which denominated as 'plaintiff' the County of Cochise, W. R. (Bill) Moore, Joe G. Good, and Bert B. Watkins, constituting the Board of Supervisors of Cochise County; and the Board of Supervisors of Cochise County, State of Arizona. The defendant was Richard J. Riley in his capacity as County Attorney of Cochise County. (The wording of the complaint throughout refers to the plaintiff in the singular.) The pertinent allegations of the complaint are as follows:

That prior to November 3, 1967, the plaintiff retained J. Mercer Johnson as counsel in connection with certain litigation in the Cochise County Superior Court in which the plaintiff was a party; that said attorney performed certain services for said plaintiff and on or about November 6, 1967, presented a general demand on Cochise County for legal services; that on or about November 15, 1967, the defendant objected to the approval of said demand by a letter, a copy of which was appended thereto; that the plaintiff's contention was that the demand was valid and legal and should be allowed for payment; that the defendant County Attorney had indicated his unwillingness to secure a legal determination of the question by instituting an action pursuant to A.R.S. § 11--641, subsec. B; ² and that the circumstances created a present, actual, and justiciable controversy in which the judgment or decree under the Declaratory Judgment Act would terminate the controversy. The prayer of the complaint recites:

'* * * plaintiff prays that the Court render its declaratory judgment declaring the rights, powers, duties, status, and other legal relations between the parties hereto under the circumstances shown to be existing * * *'

The defendant County Attorney filed a motion to dismiss the complaint (1) for failure to state a claim for relief, I.e., no justiciable controversy alleged and (2) for failure to join an indispensable party, J. Mercer Johnson. The motion was denied and after various interim proceedings, plaintiff's motion for summary judgment was granted. The court decreed that the demand of J. Mercer Johnson was in all respects a valid and legal demand and its approval and allowance for payment and the issuance of a warrant in that amount drawn and signed by the chairman and clerk of the board of supervisors in favor of J. Mercer Johnson was declared to be legal in all respects. We are of the opinion that the trial court erred in refusing to dismiss the complaint.

As to the 'indispensable party' aspect, the defendant contended that it was impossible to adjudicate the legality of Mr. Johnson's claim without binding him. However, our new Rule 19, Rules of Civil Procedure, as amended in 1966, 16 A.R.S. was designed '* * * to eliminate formalistic labels that restricted many courts from examination of the practical factors of individual cases.' Cohn, The New Federal Rules of Civil Procedure, 1966, 54 Geo.L.J. 1204. The time-honored categories of 'indispensable,' 'necessary,' and 'proper' parties have been discarded with emphasis being placed on the practical realities of joinder. 2 Barron & Holtzoff, Federal Practice and Procedure § 511, p. 28 of pocket part. This new emphasis is further evidenced from the title of the amended rule which speaks of 'Joinder of persons needed for just adjudication,' whereas the old rule spoke of 'Necessary joinder of parties.'

An illuminating discussion of the new Rule 19 may be found in Provident Tradesmens Bank & Trust Company v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), wherein the Supreme Court of the United States pointed out that pragmatic considerations control determinations of 'indispensability.' ³ The court stated:

'Whether a person is 'indispensable,' that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation. * * * The decision whether to dismiss (i.e., the decision whether the person missing is 'indispensable') must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests. Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist. To say that a court 'must' dismiss in the absence of an indispensable party and that it 'cannot proceed' without him puts the matter the wrong way around: a court does not know whether a particular person is 'indispensable' until it has examined the situation to determine whether it can proceed without him.' 88 S.Ct. at 742--743.

But, whether an absent party is 'indispensable' or not, in order to give a court jurisdiction, there must be a justiciable claim before it, and, in the absence of the claimant, Jr. Mercer Johnson, we see no such claim here. In every declaratory judgment action, there must be sufficient factual allegations to outline a justiciable controversy. Kleck v. Wayland, 53 Ariz. 432, 90 P.2d 179 (1939); Connolly v. Great Basin Insurance Company, 6 Ariz.App. 280, 431 P.2d 921 (1967); Lecky v. Staley, 6 Ariz.App. 556, 435 P.2d 63 (1967). If, as will subsequently appear, this complaint was deficient in this respect, it will support neither a judgment nor an appeal. 2 Anderson, Actions for Declaratory Judgments § 485.

Declaratory judgment relief is an appropriate vehicle for resolving controversies as to the legality of acts of public officials. See, e.g., Leavitt v. Town of North Hampton, 98 N.H. 193, 96 A.2d 554 (1953); Morgan v. Board of School Com'rs, 248 Ala. 22, 26 So.2d 108 (1946); City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411 (1942); Jones v. Merrimack Valley School District, 107 N.H. 144, 218 A.2d 55 (1966); 2 Anderson, Supra, § 677. A plaintiff, however, in order to be entitled to relief, must have a legal, protectible interest, I.e., his pleading must present a state of facts showing he has a present legal right against the defendant with respect to which he may be entitled as a general rule to some consequential relief, immediate or prospective. 1 Anderson, Actions for Declaratory Judgments § 159.

The proper use of declaratory judgment proceedings to determine the authority of a county board of supervisors to enter into contracts involving potential exposure to personal liability is illustrated by the case of Pima County v. Grossetta, 54 Ariz. 530, 97 P.2d 538 (1939). It should be noted that in that case, these seeking the declaration were the respective members of the Pima County Board of Supervisors in their Individual capacities. The suit was brought against Pima County and certain members of the state bar with whom the board had contracted for legal services, to adjudicate the legality of these contracts, I.e., whether the plaintiffs, as the Board of Supervisors of Pima County, were authorized and empowered to employ legal counsel to assist the County Attorney in certain civil actions in which the county was a party. In Grossetta, the adversaries, the county versus the individual members of the board, were litigating against one another as to a matter in which they both had a direct interest.

The...