The City of Tucson cited Defendants for violating the Tucson City Code. Defendants were found not responsible after a civil infraction hearing in Tucson City Court. Defendants sought attorneys’ fees pursuant to A.R.S. § 12-348(A)(1), which provides that a court shall award fees to any party that prevails in a “civil action brought by the state or a city, town or county against the party.” Subsection (H) of the same statute exempts from the fee provision “proceedings brought by a city or town or county … pursuant to traffic ordinances or to criminal proceedings.” The magistrate denied Defendants’ request for attorneys’ fees, holding that the proceeding was not a “civil action.” The superior court affirmed the city court’s ruling on appeal, but the court of appeals reversed. See Roubos v. Miller. This appeal followed.
Justice Berch, writing for a unanimous panel, rejected Tucson’s contention that a “civil infraction proceeding” is not a “civil action” for purposes of A.R.S. § 12-348. Noting that a civil action is commonly understood to be any action that is not a criminal prosecution, the court refused to carve out civil infraction proceedings from civil actions. The court wrote that the city obtained the benefit of the lower civil standard of proof, but incurred the burden of paying fees in which it failed to meet that standard. The court rejected Tucson’s argument that subsection (H) excepts civil infraction proceedings from the fees provision, stating that the legislature did not specifically list civil infraction proceedings among the several proceedings listed in subsection (H). The court denied Defendants request for fees on appeal, finding that they failed to request fees in their response to the petition for review.