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State v. Shipman8/3/2004
R.P. Spec. Actions, 17B A.R.S., broadly states: "[i]n any special action, a party may claim costs and attorneys' fees as in other civil actions." That rule goes on to set out the procedure to be followed for a party to claim an award of attorney fees in an appellate court if an appropriate basis exists for such an award. See Western Sun v. Superior Court, 159 Ariz. 223, 230-232, 766 P.2d 96, 103-105 (App.1988) (Rule 4(f), which was renumbered as 4(g), and its counterpart, Rule 21(c), Ariz. R. Civ.App. P., 17B A.R.S., are designed to permit courts to consider entitlements to fees prior to issuance of opinion). In supplemental briefing ordered by this court, the state asserts that Rule 4(g) does not authorize attorney fees in this case, arguing there is no precedent for awarding fees in special actions arising from criminal proceedings, special actions in which fees have been awarded are uniformly civil in nature, and, once again, citing the statutory provision prohibiting fees against the state under A.R.S. § 12- 348. [FN4] Although, as noted above, § 12-348 does not apply to this case, we find *1172 some merit to the state's argument. Because Rule 4(g) merely permits "claims" for fees and is clearly a procedural provision, because we are not aware of any case involving a special action proceeding arising from a criminal prosecution in which attorney fees have been awarded pursuant to Rule 4(g) or any civil rule authorizing fees, and because along-established Arizona statute expressly excludes criminal cases from its provisions authorizing fees against the state, § 12-348(H)(2) and (7), we conclude Rule 4(g) was not intended to authorize the grant of fees or costs in special actions arising from criminal proceedings. Similarly, Rule 4(g) does not enlarge the substantive scope of a court's authority to apply a civil sanction in a criminal setting.
FN4. The state also argues that Sweeney waived any entitlement to fees under Rule 4(g) by failing to raise this provision below. But it is well established that we may consider alternative grounds for upholding a challenged ruling. State v. Cañez, 202 Ariz. 133, 42 P.3d 564 (2002); State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981).
Disposition
8 In accordance with the foregoing, we vacate the superior court's award of attorney fees. Sweeney's request for multiple sanctions against the state, including an award of attorney fees on appeal, is denied.
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