Judge sets communities back

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      Judge sets communities back 
      Cities must pay the legal fees when losing civil court case
      Howard Fischer 
      Capitol Media Services 
      May. 18, 2006 12:00 AM
      Businesses cited for violating a local ordinance but who win in a civil 
      court do not have to pay their legal costs. Instead, the Arizona Court of 
      Appeals ruled in a unanimous decision that, the governing body that 
      brought the lawsuit must pay.

      The result, Tucson City Attorney Mike Rankin said, is that communities may 
      choose not to pursue some charges for fear that a losing verdict could end 
      up siphoning off tax dollars.

      Appellate Judge Peter Eckerstrom agreed that having to pay the legal fees 
      of losers could put a damper on enforcement but he noted that state 
      lawmakers specifically provided that those who do battle with the 
      government and win are entitled to have their costs absorbed. He said this 
      was done to ensure that those cited by the government do not simply cave 
      in because they can never match the resources. 

      "It is the Legislature's province, not ours, to determine whether its 
      stated remedial goals are outweighed by the city's public policy concerns 
      in this context," he wrote.

      The case before the court involved the DV8 Nightclub in midtown Tucson. 
      City inspectors cited it twice in September 2004 for loud noises.

      A city magistrate dismissed both counts, concluding club owners were not 
      responsible. But the trial judge said the club would have to pay the legal 
      bills it accumulated in defending itself.

      Eckerstrom, however, said that isn't the way the law reads. He said that, 
      with certain exceptions, any government agency that files a lawsuit and 
      loses has to bear the winning party's fees.

      "This is potentially a big deal," Rankin said. "We do hundreds, if not 
      thousands of civil infraction type cases every year." Cases range from 
      someone who isn't trimming the weeds on a property to infractions of city 
      building codes.

      Eckerstrom said cities like Tucson do have an option if they want to bring 
      charges but avoid the possibility of legal fees: They can bring criminal 
      charges instead of civil ones.

      That, at the very least, can mean rewriting the City Code to make these 
      offenses criminal violations.

      But there are drawbacks.

      The first is that proving a criminal case is more difficult. A judge has 
      to be convinced beyond a reasonable doubt that the person or company broke 
      the law. By contrast, civil violations are judged on a preponderance of 
      the evidence, meaning it is more likely than not the offense occurred.

      What it also would mean, Rankin said, is having a prosecutor handle each 
      case. Now, he said, many of these citations go to court with just a 
      building inspector showing up, reporting what he or she found and asking 
      the judge to find the person guilty.

      Rankin said it also would mean prosecuting seemingly minor violations, 
      such as tall weeds, as crimes. "Do we really want to make that a criminal 
      case?" he asked.

      Attorney John Munger, who represents the club, declined to comment about 
      the case or the legal fees involved.

      The case is Roubos vs. City of Tucson (2 CA-SA 2005-0080).
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