Harris v. Purcell
| Decision Date | 17 December 1998 |
| Docket Number | No. CV-98-0437-AP,CV-98-0437-AP |
| Citation | 193 Ariz. 409,973 P.2d 1166 |
| Parties | , 284 Ariz. Adv. Rep. 21 David HARRIS, Plaintiff/Appellant. v. Helen PURCELL, in her official capacity as Maricopa County Recorder; F. Ann Rodriguez, in her official capacity as Pima County Recorder; and Betsey Bayless, in her official capacity as Arizona Secretary of State, Defendants/Appellees, and Citizens Against Cockfighting, Real Party in Interest. |
| Court | Arizona Supreme Court |
O P I N I O N
¶1 This action challenges the ballot certification of an initiative measure, Proposition 201, and comes on direct appeal from a Superior Court order granting dismissal of plaintiff's case. The complaint sought: (1) to enjoin the Arizona Secretary of State from certifying or printing Proposition 201 on the official November 3, 1998 1 general election ballot; (2) to enjoin the Secretary from printing and distributing the publicity pamphlet "1998 Ballot Propositions"; and (3) to set the matter for trial pursuant to A.R.S. § 19-121.03. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 19-121.03(B) and 19-122(C).
¶2 We agree with the trial court that plaintiff's claim is barred by the equitable doctrine of laches. 2 Accordingly, we do not reach the merits of the controversy. See Mathieu v. Mahoney, 174 Ariz. 456, 851 P.2d 81 (1993). Our order of October 16 affirmed the trial court's dismissal and indicated that an opinion would follow. We now announce that opinion.
¶3 The parties are the plaintiff, David Harris, and the defendants, Maricopa County Recorder Helen Purcell, Pima County Recorder F. Ann Rodriguez, Arizona Secretary of State Betsey Bayless, and the Real Party in Interest, Citizens Against Cockfighting (Citizens). The controversy involves the certification of Proposition 201, the "cockfighting initiative." Plaintiff's challenge is that the initiative petitions were variously deficient as a matter of law, that mandatory certification procedures were not followed and that such failure resulted in the inclusion of signatures that were otherwise invalid.
¶4 Signatures supporting the initiative were filed with the Secretary of State on July 1, one day prior to the filing deadline for the November 3, 1998 general election. In compliance with A.R.S. § 19-121.02, the Secretary of State selected, at random, five percent of the signatures filed with each petition and submitted same to the county recorders for verification of eligibility.
¶5 On July 31 and August 4, respectively, the Pima and Maricopa County Recorders issued Proposition 201 signature certifications to the Secretary of State as required by A.R.S. § 19-121.02. Pursuant to § 19-121.03, any challenge to the counties' certifications had to be made within ten calender days after the final certification by the counties to the Secretary of State, or in this case, by August 14.
¶6 On August 12, the Secretary of State certified Proposition 201 for the November ballot pursuant to § 19-121.04. Under the statute, the Secretary determined that the minimum number of signatures required was 112,961, and that based on random sampling of approximately 181,000 signatures, 153,494 were valid. Valid signatures thus represented 136% of the required number, a total that easily exceeded the one hundred five percent minimum under § 19-121.04.
¶7 Although the plaintiff could not formally challenge county certification until August 4, when the county recorders certified the ballot measure, it was not necessary to wait until that date to begin reviewing signatures on petitions. Plaintiff was entitled to begin reviewing petition sheets, as public records, when Proposition 201 was initially filed with the Secretary of State on July 1. He nevertheless delayed the review process by not requesting the petitions until August 7, after random sampling by the Secretary and certification by the counties had taken place. Six days later, on August 13, copies of the petitions were made available to plaintiff by the Secretary of State's office. Plaintiff and other volunteers reviewed the petitions between August 14 and September 22.
¶8 Plaintiff filed an initial complaint in Superior Court on August 14, alleging the Maricopa and Pima County Recorders' offices did not certify the initiative petitions in accordance with A.R.S. § 19-121.02. This complaint was never served. Two weeks later, on September 1, plaintiff filed an amended complaint, naming the Secretary of State as an additional defendant and alleging violation of A.R.S. § 19-122(C), failure properly to follow certification procedures for the placement of Proposition 201 on the November ballot. In addition, plaintiff sought to obtain records from Citizens' notaries public, but waited until September 1 to dispatch letters of request to the notaries. 3
¶9 The amended complaint was not served until dates falling between September 4 and September 8, 4 some 23 days after the Secretary of State certified the Proposition, 31 days after the Secretary's receipt of county certifications, and more than two months after the Proposition was filed with the Secretary. The trial judge immediately offered plaintiff a trial date of September 10, but plaintiff's counsel requested a later date, stating he would not be prepared for trial at that time. Thus, on September 4, the court, in order to accommodate, set the trial date for September 22.
¶10 Prior to the scheduled trial date, plaintiff filed two motions to expedite discovery. The first, a motion to take depositions and motion for expedited ruling, was filed contemporaneously with the amended complaint on September 1. The motion requested access to Citizens' notary journals and permission to depose the notaries and other persons with information concerning the petition circulation process. Because the motion was made prior to service on defendants, the trial court denied it without prejudice to allow for refiling after service of process.
¶11 The second, essentially a motion for reconsideration, was made on September 11, and in a September 15 minute order, the trial court denied this request as well, finding that it "sorely lacked any good cause factual basis" and that it was filed without conferring with defendants' counsel in violation of Rule IV, Uniform Rules of Practice. The trial court expressly stated that plaintiff could refile his motion for discovery upon compliance with the rules. Plaintiff chose not to resubmit his motion and now claims that the trial court abused its discretion in denying the two discovery requests.
¶12 On September 21, the day before trial, plaintiff filed a new motion for order to produce, motion to continue, and motion for expedited ruling. In response, Citizens made some of the requested notary records available for review. 5 Plaintiff nevertheless complains that he was not afforded adequate time to review these records. Although he contends further that Citizens delayed production of other notary journals, Citizens maintains that it cooperated with plaintiff by producing seven notary books before trial and arranging for photocopies of some of the requested documents the night before trial.
¶13 By the September 22 trial date, ballots containing Proposition 201 had been printed, and replacement ballots without the Proposition could not be printed in time for early voting. 6 In fact, early voting procedures for the November 3 election began October 1, when early ballots were distributed to the county recorders in compliance with A.R.S. § 16-545. 7
¶14 On September 22, the trial judge granted, without prejudice, separate motions to dismiss by defendants Pima County Recorder and Citizens, 8 finding that the doctrine of laches applied because plaintiff had unreasonably delayed the prosecution of this matter to the prejudice of defendants and taxpayers.
¶15 We have held, and it is well-settled in Arizona, that the doctrine of laches is available as a defense in an action challenging the legal sufficiency of an initiative measure and seeking to enjoin printing the measure on the official ballot. Mathieu v. Mahoney, 174 Ariz. 456, 458-59, 851 P.2d 81, 83-84 (1993) (citing A.R.S. § 19-122(C)); Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 (1991). Kromko stated, and Mathieu reaffirmed, "[a]n action to enjoin placing an initiative or referendum proposal on the ballot is equitable in nature, and therefore may be subject to equitable defenses such as laches." Mathieu, 174 Ariz. at 459, 851 P.2d at 84. In election matters, time is of the essence because disputes concerning election and petition issues must be initiated and resolved, allowing time for the preparation and printing of absentee voting ballots. Id. (citing Kromko, 168 Ariz. at 57, 811 P.2d at 18). Delay and untimeliness may render an action moot. Id. Furthermore, as an initial matter, once initiative petitions are circulated, signed and filed, they are presumed valid. Kromko, 168 Ariz. at 58, 811 P.2d at 19.
¶16 In Mathieu, we articulated and applied the most recent laches test to emphasize that delay alone in asserting an election law violation would not serve as the basis to apply the laches defense. Mathieu, 174 Ariz. at 459, 851 P.2d at 85 (citing Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992)). Rather, we examine the justification for delay, including the extent of ...
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