Horne v. Hobbs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TOM HORNE, Plaintiff/Appellant,

v.

KATIE HOBBS, et al., Defendants/Appellees.

No. 1 CA-CV 24-0615
FILED 07-17-2025

Appeal from the Superior Court in Maricopa County
No. CV2023-013656
The Honorable Scott Minder, Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness PC, Phoenix
By Dennis I. Wilenchik (argued), Garo V. Moughalian
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Joshua D. Bendor, Nathan Arrowsmith (argued), Kathryn E. Boughton
Counsel for Defendant/Appellee Arizona Attorney General Kristin K. Mayes
Gust Rosenfeld PLC, Phoenix
By Charles W. Wirken (argued), Robert D. Haws, Susan P. Segal
Counsel for Defendants/Appellees Creighton Elementary School District,
Avondale Elementary School District, Cartwright Elementary School District,
Chandler Unified School District #80, Flagstaff Unified School District, Glendale
Elementary School District, Kyrene Elementary School District, Laveen
Elementary School District, Mesa Elementary School District, Osborn
Elementary School District

Office of the Governor, Phoenix
By Sambo Dul
Co-counsel for Defendant/Appellee Arizona Governor Katie Hobbs

Coppersmith Brockelman PLC, Phoenix
By D. Andrew Gaona, Austin C. Yost (argued)
Co-counsel for Defendant/Appellee Arizona Governor Katie Hobbs

OPINION

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Arizona’s superintendent of public instruction
(“Superintendent”) appeals from the dismissal of his lawsuit against certain
school districts (“School Districts”),1 the Attorney General, and the
Governor, relating to the public schools’ use of an English-learner
instructional model approved by the state board of education (“Board”).
We affirm the dismissal because the Superintendent lacks the authority to
sue and lacks standing to sue these defendants. We affirm the fee awards
for the School Districts and the Attorney General because, although they

1 The School Districts are: Creighton Elementary School District,
Avondale Elementary School District, Cartwright Elementary School
District, Chandler Unified School District #80, Flagstaff Unified School
District, Glendale Elementary School District, Kyrene Elementary School
District, Laveen Elementary School District, Mesa Elementary School
District, and Osborn Elementary School District.

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did not comply with Arizona Rule of Civil Procedure (“Rule”) 54(g)(1), the
award is mandatory under Arizona Revised Statutes (“A.R.S.”) § 12-348.01.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2000, Arizona voters passed initiative measure Proposition
203. Codified at A.R.S. §§ 15-751 to -755, Proposition 203 governs the
public-school instruction of non-English-speaking and
non-native-English-speaking children who cannot perform ordinary
classroom work in English (“English learners”). The initiative statutes
provide that “all children in Arizona public schools shall be taught English
by being taught in English and all children shall be placed in English
language classrooms.” A.R.S. § 15-752. As for English learners, the statutes
specify that they must be placed in “structured English immersion” (“SEI”)2
classrooms where “[b]ooks and instructional materials are in English,”
“nearly all classroom instruction is in English,” “all reading, writing, and
subject matter[s] are taught in English,” and “no subject matter shall be
taught in any language other than English.” A.R.S. §§ 15-751(5), -752. An
SEI placement is normally not expected to exceed one year. A.R.S. § 15-752.
Once children acquire a good working knowledge of English and can
handle regular schoolwork in English, they must be reclassified and moved
to mainstream English language classrooms. Id. The statutes provide that
an English learner’s parent or guardian may waive the SEI placement in
some cases, in which case the student must be placed in an alternative
(“non-SEI”) classroom that uses “bilingual education techniques or other
generally recognized educational methodologies permitted by law.” A.R.S.
§ 15-753.

¶3 After Proposition 203, the Legislature enacted additional
statutes about English learner education. Those statutes include A.R.S.
§ 15-756.01, which directs the Board to adopt and approve research-based
SEI and non-SEI models for use by school districts and charter schools.
Under A.R.S. § 15-756.01, the Board adopted and approved several SEI
models, including a “50-50 dual language immersion” model. The School
Districts use the 50-50 model as SEI education without a parent or guardian
waiver provided in A.R.S. § 15-753.

¶4 The Superintendent believes the 50-50 model is not an SEI
model and can only be used as a non-SEI model with a parent or guardian’s

2 “Sheltered English immersion” is an equivalent term. A.R.S.
§ 15-751(5).

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waiver. The Superintendent sued in his official capacity against the School
Districts, the Governor, and the Attorney General. By his second amended
complaint, he sought declarations that (1) the 50-50 model is unlawful
without the parental waiver; (2) A.R.S. § 15-756.01 is unconstitutional if it
allows the model as SEI; (3) a waiver is required for non-English instruction
of English learners; and (4) an Attorney General opinion on the topic is
wrong.

¶5 The defendants moved to dismiss for failure to state a claim
under Rule 12(b)(6) and for failure to join the Board as an indispensable
party under Rule 12(b)(7). The superior court granted dismissal under Rule
12(b)(6) because the Superintendent lacked the authority to sue and lacked
standing. The court awarded attorney’s fees and costs to each of the
defendants. The court did not reach whether dismissal was warranted
under Rule 12(b)(7).

¶6 The Superintendent appealed. We have jurisdiction under
A.R.S. § 12-2101(A)(1).

STANDARD OF REVIEW

¶7 We review de novo an order granting dismissal for failure to
state a claim under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 356,
¶ 8 (2012). We will affirm if the plaintiff is not entitled to relief under any
interpretation of the facts susceptible to proof. Id.

DISCUSSION

¶8 The superior court dismissed the Superintendent’s action
under Rule 12(b)(6) based on a lack of authority to sue and standing. We
agree that dismissal was correct on these grounds. Like the superior court,
we do not determine whether dismissal was warranted under Rule 12(b)(7).

A. The Superior Court Correctly Ordered Dismissal for Lack of
Authority to Sue.

¶9 Under the Arizona Constitution, the Board and the
Superintendent are, with others, charged with “[t]he general conduct and
supervision of the public school system.” Ariz. Const. art. XI, § 2. The
Constitution specifies that the elected Superintendent, an executive-branch
officer who also serves as a member and the secretary of the Board, has
powers and duties as “prescribed by law.” Ariz. Const. art. XI, § 4; Ariz.
Const. art. V, §§ 1, 9. The Superintendent has no common-law authority.
Godbey v. Roosevelt Sch. Dist. No. 66, 131 Ariz. 13, 19 (App. 1981). All of his

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authority as Superintendent must be found in statute. See State ex rel.
Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130, ¶ 8 (2020) (Our
constitution’s reference to state officers’ powers and duties “prescribed by
law” refers to statutory authority.); State v. Ariz. Bd. of Regents, 253 Ariz. 6,
9, ¶ 7 (2022) (same). Statutory powers may be expressed or implied.
Ponderosa Fire Dist. v. Coconino County, 235 Ariz. 597, 602-03, ¶ 25 (App.
2014).

¶10 The Superintendent is broadly charged with overseeing the
Department of Education (“Department”) by directing the Department’s
performance of its executive, administrative, and ministerial functions, as
well as supervising the public schools. A.R.S. §§ 15-231(D), -251(1), (5). But
the Board, not the Superintendent, is “the policy-determining body of the
[D]epartment,” “[e]xercis[ing] general supervision over and regulat[ing]
the conduct of the public school system and adopt[ing] any rules and
policies it deems necessary to accomplish this purpose.” A.R.S.
§§ 15-231(B)(1), -203(A)(1). Although the Superintendent must “[p]rovide
information to the [Board] related to [the Board’s] powers and duties,”
A.R.S. § 15-251(6), the Superintendent has no independent policy-making
authority. His authority is limited to “[e]xecut[ing], under the direction of
the [Board], the policies that have been decided on by the [Board].” A.R.S.
§ 15-251(4); see also A.R.S. § 15-231(B)(2) (The Superintendent is vested with
“all executive, administrative and ministerial functions of the
[D]epartment” and “is the executive officer responsible for the execution of
policies of the [Board].”); A.R.S. § 15-203(A)(7) (The Board must “[d]elegate
to the [Superintendent] the execution of [B]oard policies and rules.”). The
Board is expressly authorized to contract, sue, and be sued, A.R.S.
§ 15-203(B)(1)-(2); the Superintendent is not, see A.R.S. §§ 15-251 to -261.

¶11 As for English-learner education, the Superintendent is
charged with identifying and reassessing English learners and overseeing
the Department’s funding administration and monitoring roles. A.R.S.
§§ 15-756, -756.05, -756.04, -756.10, -231(D). But the Superintendent has no
role in determining the instructional models available to the schools. The
Board alone is allowed to adopt and approve lawful, research-based SEI
and non-SEI education models for the schools’ use. A.R.S.
§§ 15-756.01(A)-(B), (D), -756.02(A).

¶12 The Department, under the Superintendent’s direction, must
monitor and report on English-learner education, including ensuring
schools’ compliance with all state and federal laws. A.R.S.
§§ 15-756.07, -756.08, -756.10. And if the Department determines that a
school district or charter school is not complying with the law, it may

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require the district or school to submit to a Department-approved
corrective action plan. A.R.S. § 15-756.08(D)-(H). But if the Department
finds continued non-compliance at a mandatory follow-up evaluation
within one year, it lacks enforcement authority. See A.R.S. § 15-756.08(I)-(J).
Instead, the Department must refer the matter to the Board, which alone
has the power to make a non-compliance finding with a funding penalty.
A.R.S. § 15-756.08(J).

¶13 The Superintendent concedes that no statute expressly
authorizes him to sue but argues that his statutory duties give him implied
authority to pursue declaratory relief about the lawfulness of
Board-approved SEI models used by schools. But “[i]mplied powers do not
exist independently of the grant of express powers and the only function of
an implied power is to aid in carrying into effect a power expressly
granted.” Vangilder v. Ariz. Dep’t of Revenue, 252 Ariz. 481, 488, ¶ 24 (2022)
(quoting Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395 (1949)). Implied
powers exist when they “may be fairly implied from, and are necessary for,
the complete exercise of [the] express powers.” Ponderosa Fire Dist., 235
Ariz. at 603, ¶ 25 (quoting City of Phoenix v. Phoenix Civ. Serv. Bd., 169 Ariz.
256, 259 (App. 1991)); see also McMichael-Gombar v. Phoenix Civ. Serv. Bd., 256
Ariz. 343, 347, ¶ 12 (2023) (Although a city charter restricted the board’s
powers and duties to those expressly outlined in the charter and personnel
rules, the board could also exercise powers “necessarily implied to
effectuate powers expressly granted.”).

¶14 The Superintendent argues implied powers are “necessary”
when they are “convenient or useful or conducive to [an express] power’s
beneficial exercise.” This definition originates from caselaw interpreting the
federal constitution’s Necessary and Proper Clause. See United States v.
Comstock, 560 U.S. 126, 133-34 (2010). But in the implied-powers context,
“necessary” carries its conventional meaning—i.e., “required.” See City of
Flagstaff v. Associated Dairy Prods. Co., 75 Ariz. 254, 259 (1953) (“[T]he act
contains no express grant of power to municipalities which requires the aid
of the above language to carry it into effect, thus giving it the dignity of an
implied power . . . .” (emphasis added)); see also City of Phoenix, 169 Ariz. at
259 (Powers are strictly limited by the statutes creating them.). None of the
Superintendent’s statutory duties require that he obtain a judicial
determination on an SEI model’s constitutionality. Although he might find
such a determination helpful in connection with his duties (through the
Department) to monitor the schools, assess their compliance with state and
federal laws, and refer non-compliance to the Board, see A.R.S. § 15-756.08,
nothing about those duties requires him to obtain a court order. And the
Board, not the Department, has the ultimate duty to determine

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non-compliance and impose a sanction. See A.R.S. § 15-756.08(J). When it is
necessary to resort to the courts, the Board and the students’ parents or
guardians are expressly empowered to sue non-compliant districts and
schools. See A.R.S. §§ 15-203(B)(2), -754.3

¶15 We are unpersuaded by the Superintendent’s reliance on
other lawsuits that he claims are “persuasive authority,” which he cites to
support his authority to sue under the English-learner statutes. He points
to one federal lawsuit where he was a defendant (not a plaintiff), another
federal lawsuit where a past Superintendent was a plaintiff, and a
state-court lawsuit where the Secretary of State was a plaintiff. But none of
these cases involved English-learner education. Nor does the
Superintendent dispute that none of these cases analyzed his authority to
sue.

¶16 The superior court correctly ordered dismissal under Rule
12(b)(6) based on the Superintendent’s lack of express or implied authority
to sue.

B. The Superior Court Correctly Ordered Dismissal for Lack of
Standing.

¶17 The superior court also found the Superintendent lacked
standing. We conclude that dismissal was also warranted for lack of
standing.

¶18 Arizona courts require standing as a matter of judicial
restraint, informed by federal law. Arizonans for Second Chances, Rehab. &
Pub. Safety v. Hobbs, 249 Ariz. 396, 405, ¶ 22 (2020); Bennett v. Napolitano, 206
Ariz. 520, 525, ¶¶ 18-19 (2003). The standing requirement ensures that the
judiciary is limited to exercising its judicial power. Ariz. Creditors Bar Ass’n,
Inc. v. State, 257 Ariz. 406, 409, ¶ 11 (App. 2024); see Ariz. Const. art. III (“The
powers of the government of the state of Arizona shall be divided into three

3 A.R.S. § 15-754 provides that “[t]he parent or legal guardian of any
Arizona school child” has “legal standing to sue for enforcement” of the
Proposition 203 statutes. Although the statute uses the term “standing,” the
statute functions to confer authority to sue. See ¶ 19, infra. The statute
contemplates only suits by parents or guardians. See A.R.S. § 15-754. A
statute’s “expression of one or more items of a class indicates an intent to
exclude all items of the same class which are not expressed.” Pima County
v. Heinfeld, 134 Ariz. 133, 134 (1982).

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separate departments, the legislative, the executive, and the judicial; and,
except as provided in this constitution, such departments shall be separate
and distinct, and no one of such departments shall exercise the powers
properly belonging to either of the others.”). Standing is of particular
concern when a dispute involves political challenges to executive-branch
actions. See Bennett, 206 Ariz. at 525, ¶ 20 (“Without the standing
requirement, the judicial branch would be too easily coerced into resolving
political disputes between the executive and legislative branches, an arena
in which courts are naturally reluctant to intrude.”).

¶19 Although the concept of standing relates to the authority to
sue, the inquiries are legally distinct. State ex rel. Brnovich, 250 Ariz. at 131,
¶ 11, n.2; State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 111, ¶ 24 (App.
2012). The authority to sue hinges on whether a public officer or entity has
a constitutional or statutory right to begin the litigation. State ex rel.
Brnovich, 250 Ariz. at 131, ¶ 11, n.2; State ex rel. Montgomery, 231 Ariz. at 111-
12, ¶¶ 24-25. Standing hinges on whether a plaintiff, who has the authority
to sue, has a justiciable interest in the controversy at issue. State ex rel.
Brnovich, 250 Ariz. at 130, ¶ 11, n.2; State ex rel. Montgomery, 231 Ariz. at 111-
12, ¶ 24; Bennett, 206 Ariz. at 316, ¶¶ 18-19 (The federal standing
requirements, as adopted in Arizona, require a party to ensure there is an
“actual case or controversy.”). Standing requires “allege[d] personal injury
fairly traceable to the defendant’s allegedly unlawful conduct and likely to
be redressed by the requested relief.” Bennett, 206 Ariz. at 525, ¶ 18 (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984)). We hold that even if we found the
Superintendent could sue, he failed to allege facts supporting standing
against any of the defendants.

¶20 First, the Superintendent has not alleged that he has or will
suffer an injury by the Attorney General’s written opinion. An executive
officer may obtain non-binding guidance from the Attorney General. See
A.R.S. § 41-193(A)(7); Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 469, ¶ 34
(App. 2007). But reviewing that guidance is not the role of the courts. See
Yes on Prop 200, 215 Ariz. at 465, ¶¶ 14-16 (The courts have a responsibility
to declare existing law, the Attorney General has a distinct responsibility to
advise state government about the law upon request, and separation of
powers prevents the courts from usurping the Attorney General’s
responsibility.). As an aside, we also note that here, the Attorney General’s
opinion expressly declined to address the lawfulness of the challenged
model.

¶21 Second, the Superintendent has not alleged that he has or will
suffer an injury because of any action or inaction by the Governor. The

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Superintendent correctly points out that the Governor is constitutionally
bound to ensure that the laws are faithfully executed and to appoint all
other Board members with Senate approval. Ariz. Const. art. V, § 4; Ariz.
Const. art. XI, § 3. But the Superintendent’s pleading seeks no relief for the
Governor’s exercise of her duties and powers—he simply complains that
she has publicly supported the 50-50 model. Moreover, because the Board
is an independent government entity, it is speculative that any action by the
Governor under her take-care power could redress the Superintendent’s
alleged harm.

¶22 Finally, the Superintendent has not alleged standing against
the School Districts. The Superintendent contends he has standing because
the part of Proposition 203 codified at A.R.S. § 15-754 exposes him to
potential liability. See Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S.
236, 239-40 & 241, n.5 (1968) (School board members had standing to
challenge the constitutionality of their statutory duty when they faced
expulsion and funding losses if they refused to execute an unconstitutional
duty.). Section 15-754 provides that “[a]ny school board member or other
elected official or administrator who willfully and repeatedly refuses to
implement the terms of [the Proposition 203 statutes] may be held
personally liable for fees and actual and compensatory damages by the
child’s parents or legal guardian,” “cannot be subsequently indemnified for
such assessed damages by any public or private third party,” and, if liable,
“shall be immediately removed from office, and shall be barred from
holding any position of authority anywhere within the Arizona public
school system for an additional period of five years.”

¶23 We reject the Superintendent’s argument for several reasons.
First, his injury is speculative. The statute limits liability to actors who
“willfully and repeatedly refuse[] to implement” the Proposition 203
statutes. A.R.S. § 15-754. Even assuming the Superintendent’s exercise of
his duties qualifies as “implementation” of the statutes, he can only be liable
for his willful conduct related to his performance of his duties. None of his
allegations establishes the same. No defendant has the authority to “force”
him, as he argues, to violate his duties and expose himself to liability under
A.R.S. § 15-754. Second, the Superintendent has not alleged traceability or
redressability as to the School Districts. Although school districts and
charter schools may propose instructional models, only the Board has the
authority to approve models for use. A.R.S. § 15-756.01(A), (C). The School
Districts have no final say in which models they may choose from, and the
Superintendent acknowledges they are using the 50-50 model in accordance
with the Board’s directions. See A.R.S. §§ 15-756.01(A) & (C), -756.02(B)-(C).

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¶24 The Superintendent relies on Arizona Republican Party v.
Richer, 257 Ariz. 237 (2024), to argue that he may obtain declaratory relief
against the School Districts because they implemented the Board’s model.
We note that Richer, which involved a challenge to a vote-counting
procedure, did not hold that all entities with implementation roles would
be proper defendants. See id. at 240-41, 244, ¶¶ 3, 6, 18-20. Recognizing that
a suit may be brought against any “entity or official that has the ability to
control the implementation” of a challenged law, Richer held that the
plaintiffs’ initial failure to name the Secretary of State as a defendant did
not make the complaint groundless because, among other things, the
plaintiffs named county defendants charged with executing the challenged
procedure. Id. at 244, ¶¶ 18-20 (quotation omitted). But Richer stopped short
of holding that the county defendants were proper, describing them as only
“arguably” and “debatabl[y]” so. Id. at ¶¶ 19-20. In any event, the
Superintendent lacks standing against the School Districts based solely on
the lack of a non-speculative injury.

¶25 The Uniform Declaratory Judgment Act (A.R.S. §§ 12-1831
to -1846) does not change our conclusions about standing as to any of the
defendants, even under the broad opportunity for relief it provides under
A.R.S. §§ 12-831 and -835. Although an action for declaratory relief is
remedial and to be liberally construed, A.R.S. § 12-1842, the plaintiff must
have an underlying cause of action, Ansley v. Banner Health Network, 248
Ariz. 143, 151, ¶ 31 (2020). Nor may relief include “a judgment which is
advisory only or which merely answers a moot or abstract question; a mere
difference of opinion will not suffice.” Ariz. State Bd. of Dirs. for Junior Colls.
v. Phoenix Union High Sch. Dist., 102 Ariz. 69, 73 (1967). Relief is also
unavailable “when a defendant has no power to deny the plaintiff’s
asserted interests”—the defendant must be “an entity or official that has the
ability to control” the challenged action. Yes on Prop 200, 215 Ariz. at 468,
470, ¶¶ 29, 36.

¶26 As we have explained, none of the defendants could control
the Superintendent’s performance of his duties, and his injuries are
speculative. The superior court correctly ordered dismissal under Rule

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12(b)(6) based on the Superintendent’s lack of standing even under the
Act’s relaxed standard. We affirm the dismissal of the action.4

C. The Superior Court Correctly Awarded Attorney’s Fees.

¶27 The Superintendent argues the superior court erred by
awarding the Attorney General and the School Districts attorney’s fees
under A.R.S. § 12-348.01 because their request did not comply with Rule
54(g)(1)’s mandate that “[a] claim for attorney’s fees must be made in the
pleadings or in a Rule 12 motion filed before the movant’s responsive
pleading.” Although we generally review fee awards for abuse of
discretion, we review the interpretation of rules and statutes de novo. In re
the Restated Tr. of Crystal H. West, 249 Ariz. 355, 357, ¶ 7 (App. 2020) (rules);
Canon Sch. Dist. No. 50 v. W.E.B. Constr. Co., 177 Ariz. 526, 529 (1994)
(statutes).

¶28 After the Superintendent filed his second amended
complaint, each defendant filed a separate motion to dismiss on the
court-set deadline. But only the Governor’s motion requested attorney’s
fees, citing, as relevant, A.R.S. § 12-348.01.

¶29 The Attorney General and the School District filed “joinders”
in the Governor’s fee request under A.R.S. § 12-348.01. In the dismissal
order, the superior court only awarded the Governor her fees because she
was the only party to claim them in her Rule 12 motion. But when the
Attorney General and the School Districts pointed to their joinders, the
court found all fee requests timely and awarded each defendant group
around $40,000 in fees.

¶30 Rule 54(g)(1) provides that attorney’s fees “must” be claimed
in the pleadings or a Rule 12 motion. This rule ensures that parties receive
notice of the risk of bearing their opponents’ fees, thereby encouraging
settlements. In re Restated Tr. of Crystal H. West, 249 Ariz. at 358, ¶¶ 8-10.

4 We note that even if we concluded dismissal were improper, we
could not, as the Superintendent requests, declare the 50-50 model illegal.
The most we could do would be to reverse the dismissal and permit the
superior court to decide the merits. See City of Flagstaff v. Ariz. Dep’t of
Admin., 255 Ariz. 7, 14-15, ¶¶ 26, 28-29 (App. 2023) (An appellate court is a
court of review; decisions in the first instance are for the superior court to
make on a developed record.).

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Normally, a court may not award fees when a party disregards the rules of
procedure. Id. at 358-60, ¶¶ 8-10, 15-16.

¶31 The Attorney General and the School Districts did not comply
with Rule 54(g)(1). Their joinders were neither Rule 12 motions nor filed by
the court-set Rule 12 deadline, and their reliance on caselaw recognizing
judicial discretion to allow untimely fee applications is misplaced—those
cases relied on a rule provision that, unlike Rule 54(g)(1), expressly allowed
the court to extend a post-judgment deadline. See, e.g., Aztar Corp. v. U.S.
Fire Ins. Co., 223 Ariz. 463, 479-80, ¶¶ 60-62 (App. 2010) (Where the relevant
version of Rule 54(g)(2) provided that a motion for attorney’s fees “shall be
filed within 20 days from the clerk’s mailing of a decision on the merits of
the cause, unless extended by the trial court,” the court could extend the
deadline absent prejudice.). Nor did the joinders make clear that the
Attorney General and the School Districts were seeking their fees rather
than supporting the Governor’s request for her fees. The joinders simply
stated that they “join[ed] in Defendant Governor Katie Hobbs’
request . . . for attorneys’ fees under A.R.S. § 12-348.01.”

¶32 But despite the Attorney General and School Districts’ failure
to comply with Rule 54(g)(1), the court was still required to award the fee
claims under A.R.S. § 12-348.01, which makes the award mandatory.
Section 12-348.01 provides that “if a[] . . . governmental officer acting in the
officer’s official capacity . . . files a lawsuit against this state, or
a[] . . . governmental officer acting in the officer’s official capacity[,] . . . the
court shall award reasonable attorney fees to the successful party in the
action.” A.R.S. § 12-348.01 (emphasis added).5 See also City of Tempe v. State, 237 Ariz. 360, 367, ¶¶ 26-27 (App. 2015) (Section 12-348.01 provides
mandatory fee awards in any lawsuit.). The language of the statute, which
the Superintendent triggered by petitioning, does not give a court the
discretion to refuse a reasonable fee request.

¶33 The superior court correctly awarded the mandatory fees to
the Attorney General and the School Districts, and we affirm the awards.

ATTORNEY’S FEES AND COSTS

¶34 The Superintendent and each defendant request attorney’s
fees on appeal under A.R.S. § 12-348.01, and the Governor also requests fees

5 School districts are political subdivisions of the state. Amphitheater
Unified Sch. Dist. #10 v. Harte, 128 Ariz. 233, 234 (1981).

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under A.R.S. § 12-349. Under A.R.S. § 12-349, we may award fees and
sanctions in any civil action when claims are brought without substantial
justification.

¶35 We deny the Superintendent’s fee request and grant the
defendants’ fee requests under A.R.S. § 12-348.01 because the defendants
prevailed on all claims. We similarly grant the defendants their costs under
A.R.S. § 12-341. Having awarded fees under A.R.S. § 12-348.01, we need not
assess the Governor’s fee request under A.R.S. § 12-349. The Governor, the
Attorney General, and the School Districts may recover reasonable
appellate attorney’s fees and costs upon their compliance with ARCAP 21.

CONCLUSION

¶36 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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