Kaufmann v. Cruikshank

217 P.3d 438

222 Ariz. 488

John D. KAUFMANN, Petitioner, v. Hon. Michael J. CRUIKSHANK, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

No. 2 CA-SA 2009-0031.

Court of Appeals of Arizona, Division 2, Department B.

September 17, 2009.

John D. Kaufmann, Tucson, In Propria Persona.

Barbara LaWall, Pima County Attorney by Jacob R. Lines and David L. Berkman, Tucson, Attorneys for Real Party in Interest.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 The issue in this special action is whether the respondent judge properly relied upon his inherent authority to sanction bad-faith litigation conduct in ordering defense counsel to pay the State of Arizona's attorney fees in the underlying criminal proceeding. We accept jurisdiction of this special action to address this narrow question because it raises a pure issue of law that has implications for criminal proceedings throughout the state and because the issue appears to be a matter of first impression.¹ See State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, ¶ 8, 30 P.3d 649, 652 (App.2001) (acceptance of special action jurisdiction more likely "in cases involving a matter of first impression, statewide significance, or pure questions of law"); see also State v. Shipman, 208 Ariz. 474, ¶ 3, 94 P.3d 1169, 1170 (App.2004) (award of attorney fees pursuant to undisputed authority is discretionary, but "whether a particular basis for awarding fees applies at all is an issue of law that we review de novo"). For the reasons that follow, we conclude the respondent judge abused his discretion and vacate the award.

Background

¶ 2 Kaufmann challenges the respondent judge's order sanctioning him for pursuing an order to show cause (O SC) why the Pima County Attorney's office and a deputy Pima County Attorney should not be held in contempt. In the OSC petition filed on behalf of his client H., Kaufmann stated that, after H.'s arrest for possession, transportation, and possession for sale of marijuana in 2008, and the state's filing of a motion to revoke her probation for a 2004 conviction, she "began to explore the possibilities of assisting her position" in these cases by providing information to the state about cases pending against other defendants. Kaufmann alleged the Pima County Attorney's office and the deputy Pima County Attorney had failed to honor an understanding between H. and a Pima County Sheriff's detective that H. would receive a benefit if the state used a written statement she had given, inculpating another criminal defendant in a homicide case.

¶ 3 Kaufmann further alleged the state had "intentionally placed [H.'s] life in jeopardy" by disclosing her statement to defense counsel in the homicide case without notifying her in advance of disclosure. Kaufmann asked the respondent judge to issue contempt citations against the individual prosecutor in question, to award H. monetary sanctions in the amount of $1,000 per day since the state's disclosure and her attorney fees, and to "modif[y] . . . the plea agreement" she had previously entered.

¶ 4 In its response, the state argued the OSC petition was "baseless as a matter of law" and vexatious and asked the court to sanction Kaufmann by ordering him to pay attorney fees the state had incurred in responding to the petition. After a hearing, the respondent judge agreed with the state that the OSC petition was not an appropriate means of seeking the relief H. sought and denied the petition. Kaufmann filed a special action on H.'s behalf challenging that ruling. The state subsequently filed a "motion for costs" in the trial court, which included a request for attorney fees, citing the court's inherent authority to sanction bad faith conduct. The respondent judge granted the state's motion in an amount not to exceed $500 after finding the OSC petition was "frivolous and unsubstantiated with no legal cause" and "unrelated to the cause number under which [it] was filed" and that it sought "an inappropriate remedy for [H.'s] alleged complaint." At the respondent's direction, the state submitted a statement of costs in the amount of $499. All of the charges listed were for attorney fees.

¶ 5 Kaufmann filed a motion for reconsideration of the respondent judge's order, arguing the court's inherent authority to award attorney fees in criminal proceedings is limited by statute and the rules of criminal procedure. He argued the respondent judge was required to proceed in accordance with Rule 33, Ariz. R.Crim. P., which governs criminal contempt proceedings, before it could impose any such sanctions. He further argued the respondent judge had made no findings that counsel had engaged in conduct that could be characterized as vexatious, oppressive, or in bad faith, conduct that the United States Supreme Court suggested, in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), could support an award of attorney fees under a court's inherent authority. The respondent judge denied the motion for reconsideration, finding it was "clear that [Kaufmann] has significant personal animus for [the prosecutor], and that appears to be the motive for these pleadings, which are frivolous, insubstantial, and vexatious."

¶ 6 Kaufmann then amended the special action he had filed in this court on H.'s behalf challenging the respondent judge's authority to shift the state's attorney fees to him. He suggests that, because the OSC petition was filed in a criminal proceeding, the respondent could only have imposed such a sanction through contempt proceedings outlined in Rule 33. He argues that a court's imposition of attorney fees as a sanction without compliance with that rule's procedural safeguards would have a "chilling effect" on criminal defense counsel, implicating a defendant's constitutional right to effective representation. In its response, the state argues the respondent acted within his discretion under the court's inherent authority.

Discussion

¶ 7 "In Arizona we follow the general American rule that attorney[] fees are not recoverable unless they are expressly provided for either by statute or contract." Cortaro Water Users' Ass'n v. Steiner, 148 Ariz. 314, 316, 714 P.2d 807, 809 (1986); see also State v. Boykin, 112 Ariz. 109, 113, 538 P.2d 383, 387 (1975) (same). In some instances, an award of attorney fees is also expressly authorized by court rule. See Ariz. R. Civ. P. 11, 37(a).

¶ 8 Section 12-349(A)(1)-(4), A.R.S., for example, provides that a court "shall assess" an award of reasonable attorney fees against a party who "[b]rings or defends a claim without substantial justification[;][b]rings or defends a claim solely or primarily for delay or harassment[;][u]nreasonably expands or delays the proceeding[; or e]ngages in abuse of discovery." But, by its express terms, § 12-349 does not apply "to any proceedings brought by this state pursuant to title 13." § 12-349(D).

¶ 9 Section 12-341.01(C), A.R.S., similarly provides, "The court shall award reasonable attorney fees in any contested action upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith." See State v. Richey, 160 Ariz. 564, 565, 774 P.2d 1354, 1355 (1989) ("[C]ontexts in which § 12-341.01(C) applies may often overlap those in which § 12-349 applies."). It is unclear whether our legislature intended this provision to apply to criminal prosecutions under Title 13.² Unlike § 12-349, § 12-341.01(C) does not expressly exclude criminal proceedings from its reach. Cf. Richey, 160 Ariz. at 564-65, 774 P.2d at 1354-55 (attorney fee award under § 12-341.01(C) available in case involving adjudication of civil traffic violation). But, one of its triggers, the presentation of a groundless defense, would not logically apply in the criminal context wherein defense counsel are required to vigorously defend their clients regardless of the strength of the state's case. Cf. State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) (ultimate decisions about pleading guilty, waiving jury trial, and testifying are left to defendant). For that reason, we question whether § 12-341.01(C) was intended to apply in criminal cases. In any event, the state did not seek attorney fees pursuant to § 12-341.01(C), nothing in the record suggests the respondent judge imposed them pursuant to that provision, and the respondent made no findings by the clear and convincing evidentiary standard required by that provision.

¶ 10 Finally, unlike our procedural rules for civil cases, there is no rule of criminal procedure that permits the court to award attorney fees against a party who files a frivolous pleading. See Ariz. R. Civ. P. 11(a) (in civil proceeding, party or counsel who files pleading or motion not "well grounded in fact," not "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," or "interposed for any improper purpose" may be sanctioned by order to pay "reasonable expenses incurred" of other party including attorney fees); State v. Shipman, 208 Ariz. 474, ¶ 5, 94 P.3d 1169, 1171 (App.2004) ("The criminal rules contain no counterpart to Rule 11 of the civil rules.").

¶ 11 The state argues, however, that the respondent judge had the inherent authority to sanction counsel. It asserts, "The inherent authority of a court to sanction a lawyer for bad faith conduct—independent of rules allowing for those sanctions—is well established," relying on Hmielewski v. Maricopa County, 192 Ariz. 1, ¶ 14, 960 P.2d 47, 50 (App.1997); Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 555, 880 P.2d 1098, 1101 (App.1993); Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 149, 771 P.2d 469, 474 (App.1989); and Alyeska Pipeline Service Co., 421 U.S. at 258-59, 95 S.Ct. 1612. But none...