Opinion
No. 1 CA-SA 15-0125
07-30-2015
JOHN HARRIS, in his official capacity as Chair of the Arizona Game and Fish Commission; ARIZONA GAME AND FISH COMMISSION, a duly organized agency of the State of Arizona; LARRY VOYLES, in his official capacity as the Director of the Arizona Game and Fish Department, Petitioners, v. THE HONORABLE MARK H. BRAIN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, MARLON HOLDEN, individually; STEVEN GUYNN, individually, Real Parties in Interest.
COUNSEL Arizona Attorney General's Office, Phoenix By Linda J. Pollock Counsel for Petitioners Baker & Baker, Phoenix By Thomas M. Baker Counsel for Real Parties in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Special Action from the Superior Court in Maricopa County
No. CV2014-013211
The Honorable Mark H. Brain, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL Arizona Attorney General's Office, Phoenix
By Linda J. Pollock
Counsel for Petitioners
Baker & Baker, Phoenix
By Thomas M. Baker
Counsel for Real Parties in Interest
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined. SWANN, Judge:
¶1 This special action arises from the superior court's disqualification of the attorney general from defending the Arizona Game and Fish Department's director, the Department's controlling Commission, and the Commission members (collectively, "the Department") in a civil action arising under Title 17. We hold that the disqualification was error. The attorney general was authorized to undertake the representation under A.R.S. § 41-192.
FACTS AND PROCEDURAL HISTORY
¶2 Marlon Holden and Steven Guynn (collectively, "Plaintiffs") brought an action against the Department for declaratory and injunctive relief related to penalties that the Department had imposed against Plaintiffs for the taking of big game. The Department, represented by the Arizona Attorney General, filed a motion to dismiss under Ariz. R. Civ P. 12(b)(1). Plaintiffs moved to strike the Department's motion and disqualify counsel, arguing that A.R.S. § 17-103 required the Department to be represented by the Maricopa County Attorney. In response, the Department argued that under A.R.S. §§ 41-192 and -193, only the attorney general was authorized to appear on the Department's behalf in civil cases.
¶3 After considering the briefing and holding oral argument, the superior court granted Plaintiffs' motion to disqualify, concluding that "a county attorney, not the Attorney General, is the proper attorney to defend this case." The court denied the Department's motion for reconsideration and stayed the matter. The Department then brought this special action. We accept jurisdiction because an order disqualifying counsel before trial is an interlocutory order for which there is no adequate remedy by appeal. State ex rel. Romley v. Superior Court (Flores), 181 Ariz. 378, 380 (App. 1995); Ariz. R.P. Spec. Act. 1(a).
DISCUSSION
¶4 The parties view the question of who may defend the Department in civil litigation arising out of Title 17 as an all-or-nothing proposition: Plaintiffs contend that only the county attorneys may undertake such representation under A.R.S. § 17-103, and the Department contends that only the attorney general may undertake the representation under A.R.S. §§ 41-192 and -193. We hold that the statutes vest concurrent authority to represent the Department in the county attorneys and the attorney general.
¶5 A.R.S. § 17-103, which authorizes the county attorneys to act on the Department's behalf, does not purport to create exclusive authority in the county attorneys. The statute provides that "[e]ach county attorney shall prosecute and defend on behalf of the state, in all courts of the county, all actions, criminal or civil, arising under this title in which the state, [state game and fish] commission member, or [state game and fish] department employee is a party thereof." The statute creates a duty in the county attorneys to provide representation, but it does not provide that only the county attorneys may provide the representation. We will not read a provision into a statute that it does not contain. See City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965) ("A fundamental rule of statutory construction is that courts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself.").
¶6 A.R.S. § 41-192(A)(1) independently authorizes the attorney general to "[b]e the legal advisor of the departments of this state and render such legal services as the departments require." The Department contends that this statute and § 41-193, which further prescribes the attorney general's powers, impliedly repeal § 17-103 in part. But we need not reach that issue here. The question before us is not whether the county attorney may represent the Department, but whether the attorney general may represent the Department. Even assuming that § 17-103 has not been impliedly repealed, nothing in that statute prohibits the attorney general from representing the Department in this action under the broad authority granted by § 41-192, and the attorney general's decision to undertake the representation (with full consent of the Department) is entitled to deference. See A.R.S. § 41-193(A)(2), (5) ("Unless otherwise provided by law the department [of law] shall[,] . . . [a]t the direction of the governor or when deemed necessary by the attorney general, prosecute and defend any proceeding in a state court other than the supreme court in which the state or an officer thereof is a party or has an interest[,] . . . [and, a]t the direction of the governor, or when deemed necessary, assist the county attorney of any county in the discharge of the county attorney's duties."); see also Smith v. Superior Court (Deddens), 101 Ariz. 559, 560 (1967) (holding that under A.R.S. § 41-193(A)(2) and (5), attorney general could assume county attorney's exclusive authority to prosecute criminal offenses in superior court when directed to do so by governor); State v. Duran, 118 Ariz. 239, 242-43 (App. 1978) (holding that under § 41-193(A)(5), attorney general could prosecute criminal case when called upon to do so by county attorney). The superior court's disqualification of the attorney general was therefore unwarranted by Arizona's statutes.
We note that a finding of implied statutory repeal or amendment is disfavored. Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 7, ¶ 24 (2013). We will find an implied repeal in only two circumstances: (1) "when a statute is unavoidably inconsistent with another more recent or more specific statute," Hounshell v. White, 219 Ariz. 381, 386, ¶ 13 (App. 2008), creating a "positive repugnancy," State v. Culver, 103 Ariz. 505, 508 (1968) (citation omitted); or (2) "when two statutes cover the same subject matter and the earlier statute is not explicitly retained by the later statute," Hounshell, 219 Ariz. at 386, ¶ 13, such that it appears that the later statute was "[m]anifestly designed to embrace [the] entire subject of legislation," Magma Flood Control Dist. v. Palmer, 4 Ariz. App. 137, 140 (1966) (citation omitted).
Here, the statutes may be harmonized. Just as A.R.S. § 17103 does not purport to vest sole authority in the county attorneys, §§ 41192 and193 do not purport to vest sole authority in the attorney general. Further, nothing in §§ 41192 and193 indicates that these statutes were intended to embrace the entire subject of state departments' representation in litigation. Section 41192 is broad but nonexclusive, and § 41193(A) affirmatively contemplates that other laws may governit provides that the department of law (which is headed by the attorney general, A.R.S. § 41192(A)) may exercise its powers "[u]nless otherwise provided by law."
CONCLUSION
¶7 For the reasons set forth above, we accept jurisdiction and grant relief. We deny Plaintiffs' request for costs and fees.