William Roubos v. Hon. Leslie miller/tucson

SUPREME COURT OF ARIZONA
En Banc
WILLIAM WAYNE ROUBOS, DERRICK ) Arizona Supreme Court
STEPHEN DeNOMME and KTTL ) No. CV-06-0181-PR
ENTERPRISES-PACIFIC BEACH CLUB, )
INC., an Arizona corporation, dba ) Court of Appeals
DV8 Nightclub, ) Division Two
) No. 2 CA-SA 05-0080
Petitioners, )
) Pima County
v. ) Superior Court
) No. C20052396
HON. LESLIE MILLER, JUDGE OF THE )
SUPERIOR COURT OF THE STATE OF )
ARIZONA, in and for the County )
of Pima, ) O P I N I O N
)
Respondent Judge, )
)
CITY OF TUCSON, a municipal )
corporation, )
)
Real Party in Interest. )
__________________________________)
Order from Tucson City Court
The Honorable Antonio F. Riojas, Jr., Magistrate
REVERSED AND REMANDED
________________________________________________________________
Appeal from the Superior Court in Pima County
The Honorable Leslie Miller, Judge
REVERSED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
213 Ariz. 36, 138 P.3d 735 (2006)
AFFIRMED
________________________________________________________________
MUNGER CHADWICK, P.L.C. Tucson
By John F. Munger
Laura P. Chiasson
Attorneys for William Wayne Roubos, Derrick Stephen DeNomme,
and KTTL Enterprises-Pacific Beach Club, Inc.,
dba DV8 Nightclub
MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By William F. Mills, Assistant City Attorney
Dennis P. McLaughlin, Assistant City Attorney
Attorneys for City of Tucson
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 This case requires us to decide whether a party that
prevails in a civil infraction proceeding brought by a city may
recover attorneys’ fees under Arizona Revised Statutes
(“A.R.S.”) section 12-348 (2003). We hold that it may.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 In 2004, the City of Tucson twice cited Defendants
William Roubos, Derrick DeNomme, and KTTL Enterprises-Pacific
Beach Club, Inc., for violating Tucson City Code (“TCC”) § 16-32
by allowing unruly gatherings at the DV8 Nightclub. Defendants
were found not responsible after a civil infraction hearing in
Tucson City Court. The magistrate nonetheless denied their
request for attorneys’ fees, holding that they were not entitled
to such fees because the proceeding was not a “civil action.”
¶3 Defendants appealed the denial of fees to the superior
court, which affirmed the city court’s ruling. The court of
appeals reversed, holding that Defendants were entitled to an
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award of fees because they prevailed in a civil action brought
against them by the City. Roubos v. Miller, 213 Ariz. 36, 40,
¶ 14, 138 P.3d 735, 739 (App. 2006). We granted the City’s
petition for review because it raises an issue of statewide
importance that affects cities and towns. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 12-120.24 (2003).
II. DISCUSSION
¶4 The statute under which Defendants sought attorneys’
fees requires an award of fees to a party that prevails in a
civil action brought against it by a city:
A. [A] court shall award fees and other
expenses to any party . . . which prevails by an
adjudication on the merits in any of the following:
1. A civil action brought by the state or a
city, town or county against the party.
A.R.S. § 12-348(A)(1). Subsection (H) of the statute, however,
exempts from the fees provision “proceedings brought by a city,
town or county on collection of taxes or pursuant to traffic
ordinances or to criminal proceedings brought by a city, town or
county on ordinances which contain a criminal penalty or fine.”
Id. § 12-348(H)(8).
¶5 Tucson City Code § 16-32(e) provides that “[a]n unruly
gathering . . . constitutes a civil infraction.” Thus, whether
Defendants may recover fees turns on whether the civil
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infraction proceeding in this case was a “civil action” for
purposes of A.R.S. § 12-348(A)(1) and, if so, whether any
provision of A.R.S § 12-348(H)(8) exempts the City from having
to pay fees. We review these matters of statutory
interpretation de novo. N. Valley Emergency Specialists, L.L.C.
v. Santana, 208 Ariz. 301, 303, ¶ 8, 93 P.3d 501, 503 (2004).
A. Meaning of “Civil Action”
¶6 To qualify for an award of fees, a party must
“prevail” in a “civil action” brought by a city. Tucson
concedes that Defendants prevailed in an action commenced by the
City. It maintains, however, that a civil infraction proceeding
is not a civil action for purposes of A.R.S. § 12-348.
¶7 When interpreting any statute, we look to its language
as “the best and most reliable index of [the] statute’s
meaning.” N. Valley, 208 Ariz. at 303, ¶ 9, 93 P.3d at 503(quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133
(1993)). We give words their ordinary meaning unless the
legislature clearly intended a different meaning. Mail Boxes,
etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777,
779 (1995).
¶8 A “civil action” is commonly understood to be any
action that is not a criminal prosecution. See BLACK’S LAW
DICTIONARY 32 (8th ed. 2004); see also State v. Wise, 137 Ariz.
468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (approving reference
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to dictionary to determine ordinary meaning). Ordinance
violations are classified by the Tucson City Code as “civil”
infractions rather than criminal misdemeanors. See TCC § 16-
32(e). Procedure in civil infraction cases is, moreover,
governed by the Tucson Local Rules of Practice and Procedure in
City Court Civil Proceedings, see TCC § 8-8, and appeals from
civil infraction proceedings are governed by the Superior Court
Rules of Procedure – Civil, see TCC § 16-51. The City’s choice
to classify the violations as civil infractions and to apply
rules for civil proceedings suggests that civil infraction
proceedings are not criminal actions, but rather are “civil
actions.”
¶9 The City nonetheless urges us to ignore the usual
meaning of the term civil action and instead to narrowly
construe it to exclude civil infraction proceedings. The City
contends that civil actions include only those proceedings
governed by the Arizona Rules of Civil Procedure or proceedings
held in justice court. We disagree. While application of the
Rules of Civil Procedure provides compelling evidence that a
proceeding is a civil action, it does not follow that only those
proceedings governed by the Rules of Civil Procedure qualify as
civil actions. Indeed, several examples suggest that the
opposite is true. For example, in family court proceedings the
Rules of Civil Procedure do not apply, see Ariz. R. Fam. L.P.
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2(A), yet the mere inapplicability of those rules does not turn
family court proceedings into criminal or quasi-criminal
actions. Traffic and juvenile cases similarly are not conducted
pursuant to the Arizona Rules of Civil Procedure, yet they are
classified as civil proceedings as well. See Ariz. R.P. Civ.
Traf. Viol. Cases 1; Ariz. R.P. Juv. Ct. 1(A).
¶10 Defendants’ position that civil infraction proceedings
constitute civil actions also finds support in statute. The
legislature has allowed civil infraction proceedings to be
conducted as civil actions:
The city or town may maintain a civil action in
the municipal court for the recovery of a penalty or
forfeiture provided for the violation of an ordinance.
The action shall be brought and conducted as civil
actions in justice of the peace courts.
A.R.S. § 22-406 (2002). The city court hearing in which
Defendants prevailed was an action authorized by A.R.S. § 22-
406. The use of the phrase “civil action” in § 22-406 to
describe the conduct of civil infraction proceedings indicates
that such proceedings are civil actions for purposes of § 12-
348(A)(1). See Wash. Nat’l Ins. Co. v. Employment Sec. Comm’n,
61 Ariz. 112, 119, 144 P.2d 688, 691-92 (1944) (noting “that
legislative construction in one act of the meaning of certain
words is entitled to consideration in construing the same words
appearing in another act”).
¶11 The City counters that A.R.S. § 22-406 merely
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authorizes civil actions to collect fines or penalties imposed
in prior ordinance violation proceedings and does not categorize
the underlying penalty-finding proceeding as a civil action.
Only the collection proceeding, the City argues, qualifies as a
“civil action.” The underlying civil infraction proceedings,
the City maintains, remain “civil offense proceedings” governed
by A.R.S. § 9-500.21 (Supp. 2006).
¶12 We are not persuaded. A civil action “for the
recovery of a penalty” is a term of art referring to the
enforcement of an ordinance in the first instance. See 9A
Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 27.05, at
292 (3d ed. rev. 1996) (“In this country there are two modes
ordinarily recognized for enforcing penal ordinances. One is an
action to recover the penalty, and the other is the ancient and
familiar summary proceeding on information or complaint.”); see
also 62 C.J.S. Municipal Corporations § 204(c) (1999)
(“[V]iolations of municipal ordinances or regulations may be
enforced by a civil action to recover a penalty . . . .”).
Thus, we conclude that A.R.S. § 22-406 authorizes actions to
enforce ordinances, not merely to recover penalties, through
civil infraction proceedings that are conducted as civil
actions.
¶13 We also do not agree with the City’s contention that
civil infraction proceedings are a separate type of case
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authorized by A.R.S. § 9-500.21. That section requires a “city
or town that classifies ordinance violations as civil offenses
[to] establish procedures to hear and determine these
violations.” Id. The statute does not create a new type of
“civil offense” proceeding that is something other than a civil
action. It merely requires cities to establish procedures if
they choose to enforce their ordinances civilly under § 22-406.
¶14 The City’s argument that civil infraction proceedings
are not civil actions fails for yet another reason. The Tucson
City Charter provides that “[t]he violation . . . of any
ordinance of the city . . . may be prosecuted by the authorities
of the city . . . or may be redressed by civil action, at the
option of the mayor and council.” Tucson City Charter ch. 25,
§ 5. The Charter thus allows two options for enforcing
ordinances, one civil and one criminal. See id.; see also
A.R.S. § 9-240(B)(28)(c) (Supp. 2006). By choosing to use
summary civil proceedings rather than criminal prosecutions, the
City has avoided the higher standard of proof that applies in
criminal cases as well as other procedural restrictions.
Compare TCC § 8-8 (“The rules of criminal procedure of the state
shall apply to all criminal proceedings in city court.”), with
Tucson Local R. Practice & P. in City Ct. Civ. Proceedings 11
(preponderance of the evidence standard of proof applies in
civil cases). It has, on the other hand, subjected itself to
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payment of fees in those cases in which it cannot meet the lower
civil standard of proof. The City cannot take the benefit of
its choice to pursue ordinance violations as civil actions
without also bearing the burden of that choice.
¶15 Finally, the City argues that allowing an award of
fees is incompatible with the summary nature of civil infraction
proceedings. Because the summary nature of civil infraction
proceedings does not affect the disparity in resources between
cities and parties, however, we are not persuaded.
¶16 When interpreting statutes, we also strive to “give
effect to legislative intent.” Mail Boxes, etc., 181 Ariz. at
121, 888 P.2d at 779. While legislative intent may sometimes be
difficult to ascertain, in this case, when the legislature
enacted § 12-348 in 1981, it stated its intent to protect
citizens from the high cost of defending against unreasonable
governmental actions. 1981 Ariz. Sess. Laws, ch. 208, § 1. The
legislature chose to mitigate that burden by allowing awards of
reasonable fees to those who prevail against governmental
entities. Id. The legislature explained:
A. The legislature finds that certain individuals
. . . may be deterred from seeking review of or
defending against unreasonable governmental action
because of the expense involved in securing the
vindication of their rights. The economic deterrents
to contesting governmental action are magnified in
these cases by the disparity between the resources and
expertise of these individuals and their government.
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B. The purpose of this section is to reduce the
deterrents and the disparity by entitling prevailing
parties to recover an award of reasonable attorney
fees, expert witness fees and other costs against the
state.
Id. This remedial purpose supports our broad interpretation of
the phrase “civil action.”
¶17 The ordinary meaning of civil action, as well as the
use of that phrase in § 22-406 to describe civil infraction
proceedings, demonstrates that civil infraction proceedings are
civil actions for purposes of A.R.S. § 12-348(A)(1). The
expressed legislative purpose of the statute also confirms that
parties that prevail in civil infraction proceedings may recover
fees and costs.
B. Exceptions to Attorneys’ Fees Provision
¶18 Having determined that the proceeding in this case was
a civil action for purposes of A.R.S. § 12-348(A)(1), we turn to
whether subsection (H) of that statute excepts civil infraction
proceedings from the fees provision. Because the City has
conceded that the civil infraction proceedings at issue are not
criminal proceedings, the only exception that could apply is the
one for proceedings arising from “traffic ordinance” violations.
The City argues that the legislature intended to exempt civil
infraction proceedings when it listed traffic ordinance
proceedings, because the two proceedings are similar in nature.
We do not agree.
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¶19 The fees statute “mandate[s] awards to all parties
prevailing against the state [or city], absent an affirmative
statutory prohibition.” Estate of Walton v. State, 164 Ariz.
498, 501, 794 P.2d 131, 134 (1990) (emphasis added); see also
Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 317, 714
P.2d 807, 810 (1986). Thus, the legislature must specifically
list a class of proceedings in subsection (H) for those
proceedings to be exempted from the fees provision.
¶20 The legislature has not specifically listed civil
infraction proceedings in § 12-348(H), demonstrating that it
intended the fees provision to apply to those proceedings. See
Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 10, 51 P.3d 338, 340
(2002) (explaining that when a statute expressly lists certain
items, we presume that the legislature intended to exclude
similar items that are not listed). The legislature knows how
to exempt proceedings when it wishes to do so, see A.R.S. § 12-
348(H)(1)-(8) (listing several types of proceedings), and it has
not chosen to exempt civil infraction proceedings. The
legislature may, of course, amend § 12-348(H) if it determines
that civil infraction proceedings should be exempted. Absent
such a legislative exemption, however, we cannot judicially
create one.
C. Attorneys’ Fees on Appeal
¶21 In their supplemental brief, Defendants requested fees
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incurred in responding to the City’s petition to this Court.
When a party requests fees, it not only must state the statutory
or contractual basis for the award, but also must make the
request in a timely manner. Rule 21(c)(1) of the Arizona Rules
of Civil Appellate Procedure requires that “a request for
allowance of attorneys’ fees shall be made in the petition or
cross-petition for review or response thereto.” In this case,
Defendants failed to request fees in their response to the
City’s petition for review. We thus deny the request as
untimely. See Powell v. Washburn, 211 Ariz. 553, 560, ¶ 29, 125
P.3d 373, 380 (2006).
III. CONCLUSION
¶22 We hold that civil infraction proceedings are civil
actions for purposes of the attorneys’ fees provision in A.R.S.
§ 12-348(A)(1), and nothing in A.R.S. § 12-348(H)(8) provides an
exception for such proceedings from the application of the fees
provision. We therefore affirm the judgment of the court of
appeals that Defendants are entitled to an award of attorneys’
fees, reverse the contrary judgments of the superior court and
city court, and remand the case for proceedings consistent with
this opinion.
_______________________________________
Rebecca White Berch, Vice Chief Justice
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CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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