dissenting:
I respectfully dissent. Not only do I share the views expressed by Justice Moeller in his dissent, but I fear the broader implications that this decision portends. The majority is opening far too wide what is already a Pandora’s Box of judge-initiated litigation. Here, a justice of the peace entered an invalid order directing the Sheriff of Cochise County as to the manner and place of incarceration of a criminal defendant convicted of reckless driving.
This invalid order has engendered two consecutive odysseys through the Arizona Court system. The first resulted in a determination that the judge had “no authority to usurp the functions of the Executive Branch.” Judd v. Bollman, 166 Ariz. 417, 419, 803 P.2d 138, 140 (App.1991). This court denied review of that decision on January 15, 1991. The second odyssey resulted because the attorneys in the first case, Riley, Hoggatt & Suagee, P.C., hired yet another law firm, Kerley & Sierra, to bring this second proceeding to recover attorneys’ fees that Riley, Hoggatt & Suagee, P.C., allegedly incurred during the first odyssey. Perhaps Kerley & Sierra will hire yet another law firm to make a claim for its attorneys’ fees in representing Riley, Hoggatt & Suagee, P.C.
I fear that the majority has founded a new genre in boutique litigation: battling judges, not content with resolving the legitimate issues presented in a case, may now enter the trenches as litigants, picking up the cudgel of a party who doesn’t care, or has no interest in pursuing an issue. I foresee .this type of litigation being used to vex both executive officers, as it vexed and is vexing the Sheriff of Cochise County in this case, and other judicial officers. Nothing in the majority’s opinion limits its decision to squabbles between a judge and the executive branch. And after the majority’s decision, this type of litigation can be conducted at the public’s expense.
It is my opinion that when any judge is going to hire squads and platoons of lawyers to enter into trench warfare with other public officials, this court should require that the judge at least meet the criteria in Hurles v. Superior Court, 174 Ariz. 331, 849 P.2d 1 (App.1993), and State ex rel. Neely v. Brown, 177 Ariz. 6, 864 P.2d 1038 (1993). I agree with Justice Moeller that no such showing has been made in this case. This case in no way fits into the narrow category of “defense-of-policy” exception approved of in Hurles. The judge in this case was not *20explaining or defending any administrative practice, policy, or local rule. The judge pursued this action, even after it became moot, in an attempt to usurp a power he clearly did not have. This conduct is a far cry from those cases in which judicial standing was recognized because the judiciary had a legitimate administrative interest in the proceedings.
The judge’s claim for attorneys’ fees should be denied by this court, as it has previously been denied in the superior court and in the court of appeals.