WISTUBER v. PARADISE VALLEY UNIFIED SCHOOL No. 17187.
141 Ariz. 346 (1984)
687 P.2d 354
Florence WISTUBER, Peggy Deise and Florence Nelson, Plaintiffs-Appellants, Cross-Appellees, v. PARADISE VALLEY UNIFIED SCHOOL DISTRICT: Dr. Douglas L. Dickerson, Superintendent; Board of Trustees, Thomas Horne, Eric Bistroe, Nancie Lane, Guy Loehn and John P. Morgan, Jr., Defendants-Appellees, Cross-Appellants.
Supreme Court of Arizona, En Banc.
June 20, 1984.
Smith & Curtis by Paul C. Jacobson, David W. Curtis, Phoenix, for plaintiffs-appellants, cross-appellees.
Lewis & Roca by John P. Frank, Walter Cheifetz, Phoenix, for defendants-appellees, cross-appellants.
Petitioners brought a special action, as taxpayers, to declare invalid a portion (Proposal 98) of a collective bargaining agreement between the Paradise Valley Unified School District (District) and the local Classroom Teachers' Association (Association). Petitioners allege that Proposal 98 violates Ariz. Const., art. 9, § 7.
By its agreement with the Association, the District released the Association president from teaching duties but continued to pay a portion of the president's salary.
In his uncontroverted affidavit the School Superintendent notes that "[i]f the Association President did not perform all of the above activities, the District would have to hire a full-time qualified person to perform them." He notes further that "the Association pays $6,800 of the Association President's annual salary and the District pays $19,200." He concludes that "the District is saving between $5,800 and $15,800 under the current arrangement compared to what it would have to pay if a full-time Director of Employee Relations were hired."
Nevertheless, petitioners assert that "Proposal 98 is void and illegal on its face as authorizing a gift of public monies to a private association" in contravention of Ariz. Const., art. 9, § 7. Given the stipulated facts, we find the contention without merit because (1) the agreement serves a public purpose and (2) there is neither donation nor subsidy to a private association.
It is axiomatic that a governmental body may disburse funds only for a public purpose. Proctor v. Hunt, 43 Ariz. 198, 201, 29 P.2d 1058, 1059 (1934) ("money raised by public taxation ... can only legally be spent for [public] purposes and not for the private or personal benefit of any individual"). In City of Glendale v. White, 67 Ariz. 231, 236, 194 P.2d 435, 438 (1948) this court stated "the term `public purpose' is incapable of exact definition and changes to meet new developments and conditions of times...." The services performed by the Association President aid the District in performing its obligations. Her functions fit well within the Board's statutorily granted discretion to employ persons for other than classroom teaching. See A.R.S. § 15-343(A); A.R.S. § 15-502(A).
Petitioners argue that there is a conflict between two opinions of the court of appeals concerning the standard by which to measure whether there is a donation or
Id. at 64, 515 P.2d at 361 (emphasis supplied).
This aspect of Heiner was disapproved by a different panel of the court of appeals in City of Tempe v. Pilot Properties, Inc., 22 Ariz.App. 356, 362, 527 P.2d 515, 520-21 (1974). In Pilot Properties the city attempted to lease valuable property for a rental of $1.00 per year to a professional baseball team in return for the lessee's agreement to build a ballpark for use, inter alia, as a municipal ballpark. At the end of the lease term the ballpark would revert to the city. The court found that the propriety of the transaction could not be decided in the abstract. The court stated that merely because the private entity "uses public funds or property for a `public purpose' is not sufficient, in and of itself, to remove that use from the provisions" of the Constitution. Id. at 362, 527 P.2d at 521. There must also be "consideration" which is not "so inequitable and unreasonable that it amounts to an abuse of discretion," thus providing a subsidy to the private entity. Id. at 363, 527 P.2d at 522 (quoting City of Phoenix v. Landrum & Mills Realty Co., 71 Ariz. 382, 388, 227 P.2d 1011, 1014 (1951)).
The constitutional prohibition was intended to prevent governmental bodies from depleting the public treasury by giving advantages to special interests (Industrial Development Authority of County of Pinal v. Nelson, 109 Ariz. 368, 372, 509 P.2d 705, 709 (1973)) or by engaging in non-public enterprises. State v. Northwestern Mutual Insurance Co., 86 Ariz. 50, 53, 340 P.2d 200, 201 (1959). Of course, either objective may be violated by a transaction even though that transaction has surface indicia of public purpose. The reality of the transaction both in terms of purpose and consideration must be considered. A panoptic view of the facts of each transaction is required. Id. at 53-54, 340 P.2d at 202. We believe the Pilot Properties rule to be the better one. The public benefit to be obtained from the private entity as consideration for the payment or conveyance from a public body may constitute a "valuable consideration" but the Constitution may still be violated if the value to be received by the public is far exceeded by the consideration being paid by the public. Of course, in reviewing such questions, the courts must not be overly technical and must give appropriate deference to the findings of the governmental body. Therefore, we confine the Heiner rule to its facts (see note 4, ante) and approve the rule expressed in Pilot Properties.
Petitioners argue that if the Pilot Properties rule is adopted as the law of this state the case must be remanded for a finding on whether the consideration paid by the District was equitable and reasonable in light of the services to be performed by the Association President. On these facts, we disagree. Acknowledging that many of the obligations imposed upon the Association President by Proposal 98
Cross-Appeal for Attorney's Fees
The District claims it is entitled to attorney's fees under A.R.S. § 12-341.01. Under that statute attorney's fees may be awarded in an action arising out of contract in the context of a special action for mandamus relief.
Moreover, this action differs from the type of contract action at issue in Ash. Here, petitioners are challenging the constitutionality of the action of a public body. An award of attorney's fees would be contrary to public policy in this case because it would have a chilling effect on other parties who may wish to question the legitimacy of the actions of public officials. Where aggrieved citizens, in good-faith, seek a determination of the legitimacy of governmental actions, attorney's fees should not usually be awarded. Courts exist to hear such cases; we should encourage resolution of constitutional arguments in court rather than on the streets. If an action brought against a governmental body is groundless or frivolous, or is brought for the purpose of harassing that body, the court has discretion to award attorney's fees quite apart from any contractual theory. See A.R.S. § 12-341.01(C). On this record, we cannot find that petitioners' action falls within the scope of subsection (C).
The trial judge's failure to explain his reasons for a denial of attorney's fees does not mean he exercised "no discretion" nor does it indicate an abuse of discretion. We will not substitute our judgment for that of the trial judge. Autenreith v. Norville, 127 Ariz. 442, 444, 622 P.2d 1, 3 (1980). In view of the policy considerations noted above, we would have some difficulty affirming an award of fees in this case and find no abuse in the trial court's refusal to grant fees.
The judgment of the superior court is affirmed.
I respectfully dissent. I believe the Classroom Teachers Association (CTA) is being subsidized by the school district contrary to an article of the Arizona Constitution which reads:
Ariz. Const., art. 9, § 7. The affidavit of Douglas L. Dickerson, Superintendent of Schools of Paradise Valley Unified School District No. 69, agreed upon by the parties as the statement of facts in this case, states:
The contract provides that in return for this payment the president of the CTA shall:
This court held over fifty years ago that "appropriations may only be made by the direct authorization of the people, through the Constitution or an initiated act, or by an act of the legislature, which has plenary power over the expenditures of public money, except as restricted by the terms of the Constitution." Proctor v. Hunt, 43 Ariz. 198, 201, 29 P.2d 1058, 1059 (1934). In light of Proctor, the majority's citation to A.R.S. §§ 15-343(A) and -502(A) is misguided. These statutes merely give a broad hiring power for "employ[ing] professional personnel deemed necessary for making surveys and recommendations relating to the curricula, physical plant and other requirements of the district" and for "employ[ing] and fix[ing] the salaries of teachers, principals, janitors, attendance officers, school physician, school dentist, nurses, and other employees necessary for the succeeding year." These statutes, however, do not sanction the salary paid under Proposal 98.
Admittedly, we have stated that a private association's receiving some kind of benefit from a governmental act does not prevent that act from having a public purpose, see Industrial Development Authority of County of Pinal v. Nelson, 109 Ariz. 368, 373, 509 P.2d 705, 710 (1973); Town of Gila Bend v. Walled Lake Door Company, 107 Ariz. 545, 550, 490 P.2d 551, 556 (1971), but we have never stated what kind of balancing test should be utilized when weighing benefits received by the public body against benefits received by the private
Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass. 288, 292-93, 23 N.E.2d 665, 667 (1939). Accord, Port Authority of City of Saint Paul v. Fisher, 269 Minn. 276, 288, 132 N.W.2d 183, 192 (1964); Wilmington Parking Authority v. Ranken, 34 Del. Ch. 439, 452, 105 A.2d 614, 622 (1954). Under this "primary/incidental" benefit test, a court must determine who receives the "primary" benefit. If it is the government or municipality, the purpose is a public purpose. If it is the private individual or association, the purpose is a private purpose. In this case, I believe that the CTA receives the primary benefit. Out of the ten duties listed above, duties (a), (b), (d), (e), (f), (g), and (h) are, at the very least, heavily skewed in favor of benefiting the CTA as opposed to benefiting the district as an entity. In fact, the president of the CTA could properly perform all these functions as a representative of the CTA without being paid any amount by the school board. For example, under (b) the CTA president will "[a]ttend school board meetings as spokesperson for the teachers." Being a "spokesperson for the teachers" on its face indicates that it is the teachers who will be the primary beneficiaries and that any benefit to the school board will be only incidental. When we consider that there are also non-CTA teachers employed by the district, the direct and "primary" benefit to the CTA becomes more apparent. It is doubtful that the CTA president would represent the views of non-CTA teachers if a conflict in views should arise between these different groups. Another example where the CTA benefits at the expense of the board and the non-CTA member teachers is in the appointment of teachers to district committees. In his affidavit the Superintendent stated:
(Emphasis added.) Virtual control over the district's committees is of primary benefit to the CTA and only an incidental benefit to the district, if, in fact, it is a benefit at all.
Even under the majority's own test, however, I do not believe this expenditure can pass constitutional muster. The district has virtually no control over the CTA president's execution of her duties. In fact, under the contract, the board has no control over who will be president of the CTA. That is determined by the membership of
In conclusion, I believe that the value to be received by the school board is exceeded by the consideration to be paid by the board. The contract favors the CTA with very little benefit to the board. In other words, the cost to the public far exceeds the benefits to be received by the public. By whatever test, the "primary/incidental" benefit test, Allydone Realty Corporation, supra, or the "valuable consideration" test of the majority, the contract results in donation of public funds for a private purpose contrary to our Constitution.
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