Defendants May Recover Attorneys’ Fees In A Civil Code
Enforcement Action Against A Municipality

On March 20, 2007, the Arizona Supreme Court issued a ruling that affirmed the Court of Appeals’ decision that defendants are entitled to recover their attorneys’ fees pursuant to A.R.S. § 12-348 when defendants prevail in a civil action against a city, town, municipality or the state.

Specifically, in Roubos, et al. v. Hon. Leslie Miller and City of Tucson, Arizona Supreme Court, Case No. CV06-01810PR, the City of Tucson issued two citations to the private party defendants for violations of the City of Tucson’s Code. After a hearing in the Tucson City Court, the magistrate found the defendants, owners and operators of the DV8 Nightclub, did not violate the City Code. The defendants then sought to recover their attorneys’ fees in defending against the Code violations from Tucson. The City Magistrate and a Pinal County Superior Court judge both ruled in Tucson’s favor, finding an award of attorneys’ fees was inappropriate because the proceedings to enforce the Code provisions were criminal, rather than civil, in nature. The defendants appealed the lower court rulings through use of a special action.

The Court of Appeals vacated the lower court rulings, holding that Tucson’s enforcement of its Code was a civil proceeding and, because the defendants prevailed, the defendants were entitled to attorneys’ fees pursuant to A.R.S. § 12-348(A). The Supreme Court affirmed the Court of Appeals’ ruling.

The Code provision that Tucson alleged the defendants violated specifically stated that “[a]n unruly gathering . . . constitutes a civil infraction.” The Court found that the case turned on whether a “civil infraction” constitutes a “civil action” for purposes of A.R.S. § 12-348. The Court noted that a “civil action” is commonly understood to be any action other than a criminal proceeding. Thus, the Court found, “[t]he City’s choice to classify 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.’”

The Court also rejected Tucson’s argument that since Arizona law 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 (if there is one) qualifies as a “civil action.” The Court instead found that 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.”

The trend over the last few years toward making code violation civil infractions may be impacted by this decision. Municipalities must take into consideration the additional financial impact of the possibility of paying attorneys fees to a losing defendant when the violation is made a civil infraction, rather than a criminal violation.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.