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Democratic Party of Pima County v. Ford - 1/27/2012

Arizona Court of Appeals Division Two Holds That a Trial Court Has Broad Discretion Under A.R.S. § 39-121.02(B) to Award Attorneys’ Fees to a Party Who Seeks Public Records and Substantially Prevails.


The Democratic Party of Pima County filed a public records request with the Pima County Treasurer requesting “poll tapes” and “yellow sheets” from a special bond election.  The Treasurer explained that because they were enclosed in ballot boxes, a Court order would be required under A.R.S. § 16-624 to open the boxes.  The Democratic Party agreed that a Court order was necessary, and filed a special action under the public records statute, A.R.S. § 39-121.02, requesting an order to open the ballot boxes.  The Treasurer agreed to produce the records, but only disputed the procedures to be used in opening the ballot boxes to ensure the security and preservation of the records.  In March 2010, the Court ordered the opening of the ballot boxes and gave the Treasurer discretion to establish the procedures for opening them.  The records were produced in May 2010 and the Democratic Party requested attorneys’ fees and costs.  The trial court denied the fees and costs request and the Democratic Party appealed.

The ArizonaAppeals Court affirmed.  A.R.S. § 39-121.02(B) states in relevant part that “[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed.”  The Court held that trial courts have broad discretion to award attorneys’ fees to requesting parties who substantially prevail because the word “may” in the statute is permissive rather than mandatory.  The Court reached its conclusion based on the plain language of the statute, other related statutes that use the word “shall,” and other language in the statute that indicated that the legislature intended courts to give trial courts broad discretion in awarding fees and costs.

The Court rejected the Democratic Party’s argument that the word “may” is a mandatory term under Brooke v. Moore, 60 Ariz. 551, 142 P.2d 211 (1943), explaining that the statute in Brooke was distinguishable.  The Court also rejected the Democratic Party’s argument that the trial court abused its discretion by finding “that while each party prevailed in part . . . neither party can be said to have substantially prevailed.”  Because the Treasurer agreed to produce the records, and prevailed on the lone contested issue about procedures for opening ballot boxes, the trial court reasonably could have concluded that the Democratic Party did not substantially prevail. 

The Court also held that the Democratic Party was not entitled to costs under A.R.S. § 12-341 because A.R.S. § 39-121.02(B) – the more specific statute pertaining to costs in public records request cases – controls.          

Presiding Judge Vasquez authored the opinion; Judges Kelly and Espinosa concurred.

Posted by: Sharad H. Desai

Posted On: 2/13/2012