Democratic Party of Pima County v. Beth Ford Pima County Board of Supervisors

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA JAN 27 2012
DIVISION TWO
COURT OF APPEALS
DIVISION TWO

DEMOCRATIC PARTY OF PIMA )
COUNTY, a political organization, )
)
Plaintiff/Appellant, ) 2 CA-CV 2011-0070
) DEPARTMENT B
v. )
) OPINION
BETH FORD, in her official capacity as )
Pima County Treasurer; and PIMA )
COUNTY BOARD OF SUPERVISORS, )
)
Defendants/Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20088876

Honorable Ted B. Borek, Judge

AFFIRMED

Risner & Graham
By William J. Risner Tucson

and

Anthony B. Ching Tempe
Attorneys for Plaintiff/Appellant

DeConcini McDonald Yetwin & Lacy, P.C.
By John C. Richardson and Kristen B. Klotz Tucson
Attorneys for Defendant/
Appellee Ford
Slosser Struse Fickbohm
Marveland Fletcher, P.L.C.
By Ronna L. Fickbohm Tucson
Attorneys for Defendant/Appellee
Pima County Board of Supervisors

V Á S Q U E Z, Presiding Judge.

¶1 The Democratic Party of Pima County (the Democratic Party) appeals from

the superior court‟s order denying its request for attorney fees and costs in a special

action arising from its public-records request submitted to Beth Ford, in her capacity as

Pima County Treasurer (the Treasurer), and the Pima County Board of Supervisors (the

Board of Supervisors). The Democratic Party asserts that it “substantially prevailed” in

obtaining the records, and it therefore was entitled to an award of attorney fees and costs

pursuant to A.R.S. § 39-121.02. For the following reasons, we affirm.

Factual Background and Procedural History

¶2 “We view the facts in the light most favorable to upholding the trial court‟s

ruling.” Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App. 2009). The

facts are largely undisputed. In October 2008, the Democratic Party requested from the

Treasurer the “poll tapes” and “yellow sheets”1 from a special bond election held in May

2006. The Treasurer responded to the request, explaining that the yellow sheets were

enclosed in the ballot boxes, which pursuant to A.R.S. § 16-624 required a court order to

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The poll tapes contain a summary of the ballots cast, and the yellow sheets are the
end-of-day precinct reports.

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open, and that she was unaware of the location of the poll tapes, but if they also were in

the ballot boxes, a court order would be required. The Democratic Party agreed that a

court order would be necessary to open the ballot boxes. Accordingly, in December 2008

the Democratic Party filed a special action against the Treasurer and the Board of

Supervisors, under § 39-121.02, requesting an order to open the ballot boxes and to

remove the poll tapes and yellow sheets.

¶3 After learning more about the information contained in the requested

records, the Treasurer objected to disclosing the poll tapes because they are the

“functional equivalent of the ballots.” But, because the Democratic Party already had in

its possession a database with the same information as the poll tapes, the Board of

Supervisors did not oppose disclosure in this case. In February 2009, the Treasurer

agreed with the Board of Supervisors to release the poll tapes. Although the only

unresolved issues remaining between the parties apparently involved the procedures

required to open the ballot boxes, there was very little activity in the case until November

2009.

¶4 In January 2010, the trial court ordered the parties to submit position

statements regarding the recommended procedures for opening the ballot boxes. The

Treasurer‟s statement included sixty-four procedures, of which the Democratic Party

disagreed with forty-four. At a hearing in March 2010, the Treasurer and the Board of

Supervisors again agreed to provide the Democratic Party with the poll tapes and yellow

sheets, and the court ordered the opening of the ballot boxes to retrieve the records. The

court gave the Treasurer “discretion to establish the procedures used to provide security,

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inspection, copying and preservation” of the ballots, poll tapes, and yellow sheets. The

Democratic Party received the requested records in May 2010.

¶5 Also in May 2010, the Democratic Party filed a motion for attorney fees

and costs, which the trial court denied in August 2010. The Democratic Party filed a

motion for reconsideration of its request; the court granted the motion, but denied relief.

The final judgment was entered on February 16, 2011. This appeal followed. We have

jurisdiction pursuant to A.R.S. § 12-120.21.

Discussion

Attorney Fees under A.R.S. § 39-121.02(B)

¶6 The Democratic Party contends the trial court misinterpreted

§ 39-121.02(B) and abused its discretion in denying the Democratic Party‟s request for

attorney fees under that statute. We review questions of statutory interpretation de novo,

Zeagler v. Buckley, 223 Ariz. 37, ¶ 5, 219 P.3d 247, 248 (App. 2009), but we review a

trial court‟s award or denial of attorney fees for an abuse of discretion, Orfaly v. Tucson

Symphony Soc’y, 209 Ariz. 260, ¶ 18, 99 P.3d 1030, 1035 (App. 2004).

¶7 Under § 39-121.02(B), “[t]he court may award attorney fees and other legal

costs that are reasonably incurred in any action under this article if the person seeking

public records has substantially prevailed.” In construing a statute, our “primary goal . . .

is to give effect to the intent of the legislature.” Cornman Tweedy 560, LLC v. City of

Casa Grande, 213 Ariz. 1, ¶ 8, 137 P.3d 309, 311 (App. 2006). If a statute‟s language is

clear, it is “the best indicator of the authors‟ intent and as a matter of judicial restraint we

„must apply it without resorting to other methods of statutory interpretation, unless

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application of the plain meaning would lead to impossible or absurd results.‟”

Winterbottom v. Ronan, 227 Ariz. 364, ¶ 5, 258 P.3d 182, 183 (App. 2011), quoting N.

Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, ¶ 9, 93 P.3d 501, 503

(2004). “We resort to additional considerations „such as the statute‟s context, history . . .

and purpose‟” if the language is ambiguous. Taylor v. Cruikshank, 214 Ariz. 40, ¶ 10,

148 P.3d 84, 87 (App. 2006), quoting State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220

(App. 2002).

¶8 The Democratic Party argues that the threshold requirement for an award of

attorney fees under § 39-121.02(B) is a trial court‟s finding that the party substantially

prevailed, and that once that finding has been made, the award is mandatory. We agree

that the court first must find that a party substantially prevailed as a threshold

requirement; however, we disagree that the court must award attorney fees after making

that determination.

¶9 Generally, the use of the word “may” indicates permissive intent while

“shall” denotes a mandatory provision. City of Chandler v. Ariz. Dep’t of Transp., 216

Ariz. 435, ¶ 10, 167 P.3d 122, 125 (App. 2007). In determining whether the word “may”

as used in § 39-121.02(B) is permissive or mandatory, we first look to the plain meaning

of the statute. Frye v. S. Phx. Volunteer Fire Co., 71 Ariz. 163, 167, 224 P.2d 651, 654

(1950). Here, the plain meaning reveals that the legislature intended to give trial courts

broad discretion in awarding attorney fees and costs. In addition to the word “may,”

§ 39-121.02(B) uses the phrases “reasonably incurred” and “substantially prevailed.”

These phrases are broad and flexible so as to provide the court with wide latitude in

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making its determination. Cf. Maleki v. Desert Palms Prof’l Props., L.L.C., 222 Ariz.

327, ¶ 35, 214 P.3d 415, 422 (App. 2009) (“„The decision as to who is the successful

party for purposes of awarding attorneys‟ fees [pursuant to A.R.S. § 12-341.01] is within

the sole discretion of the trial court, and will not be disturbed on appeal if any reasonable

basis exists for it.‟”), quoting Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz.

425, 430, 874 P.2d 982, 987 (App. 1994).

¶10 Our interpretation of § 39-121.02(B) is supported by the plain meaning of

the statute‟s second sentence, which states: “Nothing in this paragraph shall limit the

rights of any party to recover attorney fees pursuant to [A.R.S. § 12-341.01(C)], or

attorney fees, expenses and double damages pursuant to [A.R.S.] § 12-349.” Under

§ 12-341.01(C), the trial court “shall” award attorney fees when “the claim or defense

constitutes harassment, is groundless and is not made in good faith,” and pursuant to

§ 12-349, the court “shall” award attorney fees, expenses, and double damages where a

party acts in bad faith by engaging in one of four actions.2 When a statute uses both

permissive and mandatory terms, we will presume the legislature was aware of the

difference and intended each word to carry its ordinary meaning. City of Chandler v.

Ariz. Dep’t of Transp., 216 Ariz. 435, ¶ 10, 167 P.3d at 125. In this case, we presume the

legislature intended the court to have broad discretion in deciding whether to award

attorney fees and costs under § 39-121.02(B), unless a party also meets the requirements

2
The four bases for relief under § 12-349 are: bringing or defending a claim
without substantial justification; bringing or defending a claim for delay or harassment;
unreasonably prolonging the proceeding; and engaging in abusive discovery practices.

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of § 12-341.01(C) or § 12-349, in which case the award of attorney fees becomes

mandatory. See Pima Cnty. v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055,

1059 (1988) (we construe related statutes together to give proper effect to all involved).

¶11 The Democratic Party relies on Brooke v. Moore, 60 Ariz. 551, 142 P.2d

211 (1943), to support its argument that § 39-121.02(B) requires a trial court to award

attorney fees to the substantially prevailing party. However, the statute at issue in Brooke

is distinguishable from § 39-121.02(B). There, the statute provided that if the Arizona

Tax Commission found an applicant for a horse- or dog-racing permit had a reputation

for honesty, integrity, and fair dealing and the applicant‟s plan was not objectionable, the

commission “may” grant the application. Brooke, 60 Ariz. at 553, 142 P.2d at 211-12.

The court interpreted the word “may” as mandatory because of potentially arbitrary and

capricious action by the commission in denying a permit when the specific statutory

prerequisites had been met. Id. at 554, 142 P.2d at 212. In contrast, § 39-121.02(B) does

not narrow a court‟s consideration by providing a list of specific statutory factors, but

instead provides generally that the court may award fees to the party who has

substantially prevailed.

¶12 The Democratic Party next argues that, even if an award of fees is

discretionary, the trial court abused its discretion by denying its request.3 The court

3
The Democratic Party suggests that if “this court finds it necessary to establish a
set of standards for the exercise of discretion under § 39-121.02(B),” we should adopt the
factors set forth in United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting
Indus., Local 598 v. Dep’t of the Army, 841 F.2d 1459 (9th Cir. 1988), for the exercise of
discretion under the federal Freedom of Information Act. And, because the trial court did
not consider those factors here, the Democratic Party contends this case should be
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generally has broad discretion to award or deny attorney fees, and we will not reverse its

decision unless there is no reasonable basis for it. Cf. Associated Indem. Corp. v.

Warner, 143 Ariz. 567, 570-71, 694 P.2d 1181, 1184-85 (1985) (discussing attorney fees

under § 12-341.01).

¶13 The trial court “conclude[d] that while each party prevailed in part, the

[Democratic Party] as far as obtaining the records and the Treasurer as to the security

procedures, neither party can be said to have substantially prevailed.” The record

supports that determination. By February 2009, the Treasurer and the Board of

Supervisors had agreed to release the requested records with a court order. The contested

issues in this case revolved around the procedures required to open the ballot boxes. In

accordance with the Treasurer‟s position, the court ruled the Treasurer could use her

discretion to establish the procedures. Thus, the court reasonably could have concluded

the Democratic Party did not substantially prevail because the Treasurer prevailed on the

contested issues.

¶14 The Democratic Party nevertheless argues it substantially prevailed because

it obtained the records sought and because the “collateral issues” concerning the

procedures should not have been considered by the trial court. But, the Treasurer and the

Board of Supervisors acquiesced in releasing the requested records with a court order,

remanded. However, because we find the language of § 39-121.02(B) unambiguous and
there was no error by the trial court in denying the fee request, we decline to adopt the
federal factors.

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and the Democratic Party agreed that one was necessary to open the ballot boxes.4

Therefore, the “collateral issues” actually were, as the court found, the crux of the case.

We are unpersuaded by the Democratic Party‟s public policy argument for the same

reason. Although we recognize the importance of access to public records, see Phx.

Newspapers, Inc. v. Purcell, 187 Ariz. 74, 81, 927 P.2d 340, 347 (App. 1996), that

interest is not implicated where a government actor agrees to disclose the records but

needs a court order to retrieve them. We find no error in the court‟s considering the

Treasurer‟s and the Board of Supervisor‟s level of cooperation in denying the Democratic

Party‟s request. See Associated Indem. Corp., 143 Ariz. at 570, 694 P.2d at 1184

(discussing factors for court to consider in awarding attorney fees, including whether

litigation could have been avoided or settled). Thus, we conclude the court did not abuse

its discretion by denying the Democratic Party‟s request for attorney fees.

Costs under A.R.S. § 12-341

¶15 The Democratic Party also argues the trial court abused its discretion in

denying its request for costs under A.R.S. § 12-341.5 According to § 12-341, “[t]he

successful party to a civil action shall recover from his adversary all costs expended or

4
Section 16-624(A) provides that once an election canvass has been completed, the
package containing the ballots shall be deposited with the “county treasurer, who shall
keep it unopened and unaltered for . . . six months . . . , at which time he shall destroy it
without opening or examining the contents.” And subsection (D) of the statute states that
“[i]f a recount is ordered or a[n election] contest begun within six months, the county
treasurer may be ordered by the court to deliver to it the packages or envelopes
containing the ballots, and thereupon they shall be in the custody and control of the
court.”
5
The trial court‟s rulings do not address separately the Democratic Party‟s request
for costs; however, we assume that the costs were denied in conjunction with the request
for attorney fees.
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incurred therein unless otherwise provided by law.” For purposes of that statute, the

court has the discretion to determine the successful party. McEvoy v. Aerotek, Inc., 201

Ariz. 300, ¶ 9, 34 P.3d 979, 981 (App. 2001). We review the court‟s decision for an

abuse of discretion. Id.

¶16 “Specific statutes create exceptions to general statutes. Therefore, if a

provision of a special statute is inconsistent with one in a general statute on the same

subject, the specific statute controls.” Ruth Fisher Elementary Sch. Dist. v. Buckeye

Union High Sch. Dist., 202 Ariz. 107, ¶ 21, 41 P.3d 645, 650 (App. 2002). In this case,

§ 39-121.02(B) specifically addresses “attorney fees and other legal costs” incurred in a

special action under title 39, chapter 1, article 2, whereas § 12-341 addresses costs in a

“civil action” generally. As discussed above, the trial court has discretion to award

attorney fees and costs under § 39-121.02(B). In contrast, under § 12-341, an award of

costs to the successful party is mandatory. Roddy v. Cnty. of Maricopa, 184 Ariz. 625,

627, 911 P.2d 631, 633 (App. 1996). Thus, the two statutes conflict, and the statute that

is implicated specifically in this case—§ 39-121.02(B)—controls. See also Primary

Consultants, L.L.C. v. Maricopa Cnty. Recorder, 210 Ariz. 393, ¶ 32, 111 P.3d 435, 443

(App. 2005) (party not entitled to attorney fees under A.R.S. § 12-2030 because § 39-

121.02(B) was applicable, specific statute).6

6
Primary Consultants, L.L.C. was decided under the previous version of
§ 39-121.02(B), which required the custodian of records to have “acted in bad faith, or in
an arbitrary or capricious manner.” 1975 Ariz. Sess. Laws, ch. 147, § 1. Even without
the bad-faith requirement, § 39-121.02 is inconsistent with § 12-341 because of the
“may” versus “shall” distinction.

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¶17 Our interpretation of § 39-121.02(B) is, again, bolstered by the plain

language of the statute. Section 39-121.02(B) refers to § 12-341.01(C) and § 12-349 and

requires the trial court to award certain fees and costs where those statutes apply.

However, § 39-121.02(B) does not refer to § 12-341. If the legislature had intended to

require the recovery of costs under § 12-341, it easily could have said so. See Roller

Vill., Inc. v. Superior Court, 154 Ariz. 195, 199, 741 P.2d 328, 332 (App. 1987) (“The

expression of one or more items of a class in a statute indicates an intent to exclude items

of the same class which are not expressed.”). Because the Democratic Party was not

entitled to an award of costs under § 12-341, the court did not abuse its discretion in

denying the request.

Attorney Fees on Appeal

¶18 The Democratic Party requests attorney fees on appeal, pursuant to

§ 39-121.02(B). Because the Democratic Party was not the prevailing party, its request is

denied.

Disposition

¶19 For the foregoing reasons, we affirm.

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

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