§ 11.2.1.4 Attorneys' Fees Under A.R.S. §§ 12-348 and 12-348.01.

• Jurisdiction: Arizona

§ 11.2.1.4 Attorneys’ Fees Under A.R.S. §§ 12-348 and 12-348.01. The Arizona version of the federal Equal Access to Justice Act is A.R.S. § 12-348. That statute differs in many respects from the federal act. Accordingly, counsel should rely on interpretations of the federal act only when there is clear similarity of language and intent. See generally Estate of Walton, 164 Ariz. 498, 500-01, 794 P.2d 131, 133-34 (1990). For example, the reasonableness of the state’s conduct is not a ground for denying recovery under A.R.S. § 12-348, as it is under the federal act. See Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 317, 714 P.2d 807, 810 (1986). The legislative purpose of A.R.S. § 12-348 is to neutralize or reduce the economic deterrent faced by private parties in seeking to litigate against unreasonable governmental action. Laws 1981, ch. 208, § 1; see also E. Vanguard Forex, Ltd. v. Ariz. Corp. Comm’n, 206 Ariz. 399, 415, ¶ 58, 79 P.3d 86, 102 (App. 2003) (holding that award of attorneys’ fees under A.R.S. § 12-348(I)(1) includes fees incurred in the underlying administrative proceeding). Fees under A.R.S. § 12-348 are recoverable even if the prevailing party is represented pro bono. See Arnold v. Ariz. Dep’t of Health Servs., 160 Ariz. 593, 608, 775 P.2d 521, 536 (1989).

Subject to certain limitations, A.R.S. § 12-348 permits recovery of fees not only from the state and state agencies, but also from cities, towns and counties. A.R.S. § 12-348(A). But see Primary Consultants, L.L.C. v. Maricopa Cnty. Recorder, 210 Ariz. 393, 401, ¶ 31, 111 P.3d 435, 443 (App. 2005) (noting that A.R.S. § 12-348(A)(4) applies only to actions by the state and holding that prevailing party may not receive fees in action against a county under this subsection). States, cities, towns, counties and political subdivisions, including water conservation districts, are not eligible for an award of fees under A.R.S. § 12-348, see A.R.S. § 12-348(A), (B); Maricopa Cnty. v. Maricopa Cnty. Mun. Water Conservation Dist., 171 Ariz. 325, 332, 830 P.2d 846, 853 (App. 1991), although A.R.S. § 12-348.01, enacted in 2012, permits a governmental entity to recover fees if it is the successful party in a lawsuit against or brought by another governmental entity. Private parties that intervene on the side of a prevailing public entity may not recover fees under A.R.S. § 12-348. See Grand Canyon Trust v. Ariz. Corp. Comm’n, 210 Ariz. 30, 40, ¶ 45, 107 P.3d 356, 366 (App. 2005). However...