dissenting.
I respectfully dissent. In this case a law firm seeks to recover attorney’s fees from Cochise County for services rendered to a justice of the peace in that county, Judge Bollman. When the case originally was presented to this court on petition for review, I was of the view that it met none of the criteria for review by this court. See Rule 23(c)(4), Rules of Civil Appellate Procedure. For that reason, I voted to deny review. I would still vote to dismiss review as improvidently granted and terminate the litigation. However, because the majority has granted review and, by its opinion, reinstates the litigation, the court has itself resurrected an important issue that should have been addressed much earlier. I refer to the issue of whether Judge Bollman had standing personally to defend the special action brought against him.
This litigation arose because Judge Boll-man entered an order purporting to require the Cochise County Sheriff to house a particular prisoner at a particular county facility. That order has spawned litigation at all three levels of Arizona’s courts of record not once, but twice. Since January 15,1991, when this court denied review in the case that declared the judge’s order invalid, this litigation has related solely to attorney’s fees. Every court that has examined the merits of the judge’s order has concluded that it was invalid. Resolution of the merits of the order is easy and obvious: superior court judges, court of appeals judges, and supreme court justices do not direct the executive authorities as to where they shall confine their prisoners. Neither do justices of the peace. Although each court involved has invalidated *17the judge’s order, no court has yet addressed the issue that should have been the first issue addressed: namely, did the judge have standing personally to appear and defend the validity of his own order?
Recently, Division One of the court of appeals comprehensively reviewed Arizona law relative to the standing of judges to appear and personally defend their rulings. Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1 (App.1993). The court of appeals acknowledged that the rules of procedure often require a court or a judge to be named as a nominal respondent in a special action challenging the validity of a court ruling. The appeals court also correctly noted that “[s]ueh status is a formality, however, that does not necessitate a responsive appearance by that court. The question thus arises whether—or under what circumstances—the trial court may properly respond.” 174 Ariz. at 332, 849 P.2d at 2.
The Hurles court then proceeded to review applicable Arizona cases. In Fenton v. Howard, 118 Ariz. 119, 575 P.2d 318 (1978), the presiding domestic relations judge of the Pima County Superior Court was held to have standing to defend his order denying a litigant access to conciliation court counseling records that were regarded by the conciliation court as confidential because, in that particular ease, the
right of the judge to appear and to be represented is especially important because the judge named as respondent is the head of the Conciliation Court, and he is therefore vitally concerned with the outcome of the Special Action. It is the judge’s prerogative to appear and argue for a result which would not hamper the effective functioning of the Conciliation Court.
118 Ariz. at 121, 575 P.2d at 320.
In State ex rel. Dean v. City Court, 123 Ariz. 189, 598 P.2d 1008 (App.1979), a city magistrate appeared in special action proceedings in the superior court and in the court of appeals to defend his dismissal of a traffic citation. The Dean court, Division Two of the Court of Appeals, was highly critical of the judge’s appearance and considered it improper. However, the court permitted the judge to participate, believing that it was bound by this court’s ruling in the Fenton case. In Dunn v. Superior Court, 160 Ariz. 311, 772 P.2d 1164 (App.1989), the presiding civil judge of the Maricopa County Superior Court responded to a special action challenging an order by which he had rejected a notice of change of judge. The appeals court permitted him to do so, observing that Dunn was distinguishable from Dean because the order challenged in Dunn was part of a standard administrative practice. The judge was entitled to appear and explain the administrative policies of the court and the concerns that underlay the policy.
In a thoughtful review of Arizona precedent, the court of appeals in Hurles concluded that it is inappropriate for judges to appear and defend in what the court dubbed the “I-ruled-correctly” type of ease, as distinguished from the “defense-of-policy” type of case, in which the judge is permitted to respond. Concluding that the order challenged in Hurles was of the “I-ruled-eorrectly” type, the court denied standing to the judge to appear and defend it. The court of appeals adopted the following rule and statement of principle with which I agree:
We hold that it is proper for a judge named as a respondent in a special action to file a responsive pleading if the purpose of the response is to explain or defend an administrative practice, policy, or local rule, but that it is improper for a judge to respond merely to advocate the correctness of an individual ruling in a single case.
Judges, of course, generally hope their rulings are affirmed, whether on special action or direct appeal. Yet trial court judges do not appear in the many direct appeals that this court considers to advocate upholding their rulings. Nor do judges of this court seek standing to urge the supreme court to uphold our rulings on review. Rather, at every level of the judiciary, judges are presumed to recognize that they must do the best they can, ruling *18by ruling, with no personal stake—and surely no justiciable stake—in whether they are ultimately affirmed or reversed. This principle, which is essential to impartial adjudication, does not change from direct appeal to special action, merely because the judge is a nominal respondent in the latter.
174 Ariz. at 333-34, 849 P.2d at 3-4.
In an even more recent case, Trebesch v. Superior Court, 175 Ariz. 284, 855 P.2d 798 (App.1993), the court of appeals, applying Hurles, held that an individual court commissioner had no standing to defend his order appointing the public defender to represent a defendant, but that on the facts of Trebesch, the superior court itself, as a court, had standing because its response was of the “defense-of-policy” type.
This brings me back to the present case. Because the majority is reviving this litigation, I believe we have an obligation to address the standing issue. We should either decide the issue or remand it for resolution by the trial court. If the challenged order of Judge Bollman has no legitimate basis in court administration or policy, and none presently appears in the record, the judge’s defense falls into the “I-ruled-correetly” category. If so, he had no standing. If he had no standing, he had no authority to hire attorneys at taxpayer expense to litigate the validity of his order.
The majority states that “this narrow issue is now precluded,” because the county never challenged the judge’s standing. Majority op. at 13, 864 P.2d at 1045. I respectfully disagree with this proposition. As is evidenced by the authorities cited in this dissent and in Hurles, the question of whether a judge has standing is essentially a matter of determining proper judicial conduct on the part of the judge. See also Rapp v. Van Dusen, 350 F.2d 806, 812-13 (3d Cir.1965) (because “the proper administration of justice requires of a judge not only actual impartiality, but also the appearance of a detached impartiality!;,] • • • the judge below, although named as a respondent, shall be deemed a nominal party only” in mandamus actions attacking the intrinsic merits of a judicial act).3
The whole standing issue comes about because it is clearly recognized that in the vast majority of special actions in which the judge is named, the judge must continue to be the impartial arbiter, not the embattled litigator. Id. at 814 (“the procedure to be followed should avoid entangling the judge as a party litigant unless the complaint is against the judge for conduct which is extrinsic to the merits of his decision.”). Only in the most exceptional and narrow circumstances is a judge permitted actively to defend his or her rulings, and then only when strong considerations of public policy require the judge’s active participation. Resolution of these important questions of standing cannot be left to the parties, because it is the responsibility of the court. The parties cannot confer legitimacy upon a judge’s participation by failing to object to it. The court of appeals in Hurles recognized this when it raised the issue of standing for the first time at oral argument. 174 Ariz. at 332, 849 P.2d at 2. I disagree with the suggestion of the majority that, while the court of appeals could have raised the issue of standing sua sponte, we may not. See Majority op. at 13, 864 P.2d at 1045. I would encourage trial and appellate courts always to inquire into a judge’s standing to participate in litigation, precisely as the court of appeals did in Hurles.
The majority also concludes that the judge had standing because he was making a “defense-of-policy” response, rather than an “I-ruled-correctly” response within the meaning of Hurles. To my way of thinking, the judge who wishes to take the extraordinary step of personally appearing and defending one of *19his judicial rulings in his own name at public expense, must first affirmatively show that he falls within the narrow “defense-of-policy” exception. In my view, it would be sound policy for courts to require this showing before permitting the defense. The judge here has never made any such showing. If he is defending an arguably legitimate policy, I fail to discern what policy it is. Because the order was entirely moot by the time the judge decided to defend it, he must have intended it as a test case to establish his right to enter more such orders in the future. To me, this suggests not a defense of any legitimate policy, but an intransigent assertion of groundless jurisdiction at the expense of the taxpayers of Cochise County.
Finally, on a separate point, I note that, assuming standing, the reasonableness of incurring attorney’s fees to defend, unsuccessfully, the invalid order through three levels of the Arizona court system must still be determined by the trial court. Inquiry must also be made into whether fees incurred solely in collection attempts are recoverable.
In summary, I believe this court should have denied review in this case and should now dismiss review as improvidently granted. That would terminate the litigation. Because the court is resuscitating the litigation, I believe it is obligated to consider the standing issue. In my opinion, the record before us does not support a finding that the judge had standing. At the very least, the matter should be remanded with directions to determine whether standing was affirmatively established in the original case. It is for these reasons that I respectfully dissent.
. The Van Dusen court condemned the practice of not distinguishing between mandamus actions attacking the intrinsic merits of a judicial act and actions attacking judicial acts extrinsic to the merits. At least five other circuit courts of appeal follow or approve of the rule announced in Van Dusen. See In re Perry, 882 F.2d 534, 542 (1st Cir.1989); United States v. Haldeman, 559 F.2d 31, 139 (D.C.Cir.1976); Walker v. CBS, 443 F.2d 33, 34 (7th Cir.1971); A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439, 442 (2d Cir.1966); General Tire & Rubber Co. v. Watkins, 363 F.2d 87, 88 (4th Cir.1966).