McGee v. Syms, 111219 AZAPP1, 1 CA-CV 18-0517

Docket Nº:1 CA-CV 18-0517
Opinion Judge:CAMPBELL, JUDGE
Party Name:ROBERT MCGEE, Plaintiff/Appellee, v. MARK SYMS, Defendant/Appellant.
Attorney:Goldman & Zwillinger, PLLC, Scottsdale By Mark D. Goldman, Jeremy Phillips Counsel for Defendant/Appellant Ballard Spahr, LLP, Phoenix By Joseph A. Kanefield, Mark S. Kokanovich, Ian O. Bucon Counsel for Plaintiff/Appellee
Judge Panel:Presiding Judge Jennifer B. Campbell delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.
Case Date:November 12, 2019
Court:Court of Appeals of Arizona
 
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ROBERT MCGEE, Plaintiff/Appellee,

v.

MARK SYMS, Defendant/Appellant.

No. 1 CA-CV 18-0517

Court of Appeals of Arizona, First Division

November 12, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV 2018-008775 The Honorable Christopher A. Coury, Judge The Honorable Margaret R. Mahoney, Judge

Goldman & Zwillinger, PLLC, Scottsdale By Mark D. Goldman, Jeremy Phillips Counsel for Defendant/Appellant

Ballard Spahr, LLP, Phoenix By Joseph A. Kanefield, Mark S. Kokanovich, Ian O. Bucon Counsel for Plaintiff/Appellee

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

MEMORANDUM DECISION

CAMPBELL, JUDGE

¶1 Mark Syms appeals from the superior court's amended final judgment as well as its orders denying his motions for change of judge and new trial. For the following reasons, we affirm.

BACKGROUND

¶2 To secure a place on the November 6, 2018 general election ballot as an independent candidate for State senate, Syms submitted nomination petitions, which ostensibly included more than 2, 100 signatures collected from qualified electors in Legislative District 28 ("the district"), to the Secretary of State. See A.R.S. §§ 16-314, -322 (setting forth the requirements for placement on the ballot). Less than two weeks later, Robert McGee, a qualified elector from the district and the spouse of the district's incumbent candidate, filed a complaint challenging the legal sufficiency of Syms' nomination petitions pursuant to A.R.S. § 16-351. Apart from his claim that most of the petitions' signatures were invalid, McGee also requested an award of his reasonable attorney fees and costs pursuant to A.R.S. § 12-349. In his answer, Syms challenged the admissibility of the Maricopa County Recorder's ("County Recorder") report ("the report"), which supported McGee's claim, and asserted that only a qualified expert could offer testimony comparing handwriting exemplars.

¶3 At an expedited hearing, the County Recorder testified that the Maricopa County Recorder's Office ("the County Recorder's Office") has a "practice and custom," developed over many years, to prepare reports in response to lawsuits challenging the sufficiency of petition signatures. Notwithstanding this long-standing tradition, the County Recorder stated that he has no statutory obligation to perform such a task; rather, he does so only as "a courtesy" to the courts.

¶4 When asked about his training and the signature verification process, the County Recorder testified that he and his staff receive FBI- caliber training in handwriting identification and compare electors' petition signatures with the signatures on file from the electors' original voter registration forms. In addition, to verify the validity of petition signatures, the County Recorder's Office also ascertains whether the individuals who signed the petition: (1) are registered to vote; (2) are registered in the correct party; (3) have signed more than once; and (4) live within the applicable legislative district. See A.R.S. § 16-321 (establishing the parameters for petition signatures).

¶5 The County Recorder testified that his office conducted a signature verification of Syms' nomination petitions and issued a report of its findings. When McGee moved to admit the report, Syms' counsel objected on relevance grounds. The superior court overruled the objection, concluding any alleged deficiencies in the report went to the report's weight rather than its admissibility. With the report admitted, the County Recorder testified that Syms' nomination petition contained 1, 675 invalid signatures.

¶6 After the County Recorder testified, McGee called Anthony Garcia, a named circulator on Syms' nomination petition, to testify. Although Garcia acknowledged that he is employed as a professional circulator, he denied circulating any petition sheets on Syms' behalf.

¶7 In response, Syms testified that his campaign hired a company to collect signatures and he did not personally employ any circulators. When asked whether he noticed any irregularities in the petition sheets before he submitted them to the County Recorder's Office, Syms admitted he had noticed that the addresses appeared to be written in the same handwriting. He explained, however, that he asked about the handwriting and was told that the circulators wrote the addresses, not the electors. In response, McGee's counsel confronted Syms with a statement Syms had recently made to the media, asserting that he was a victim of fraud. Syms clarified that he had no knowledge of any fraud at the time he submitted his nomination petitions.

¶8 Following the evidentiary hearing, the superior court issued a signed order finding, in relevant part, that the County Recorder's determination that most of the petition signatures did not match voter records was corroborated by other evidence. Specifically, the court cited: (1) Garcia's testimony that he never collected signatures on Syms' behalf; (2) the parties' stipulation that at least one signature was forged; and (3) the purported daily collection of signatures by Syms' circulators, which was "remarkabl[y]" high. Discounting the signatures invalidated by the report, the court found that Syms had failed to submit the requisite signatures to qualify for placement on the general election ballot.

¶9 Consistent with A.R.S. § 16-351, Syms immediately appealed the superior court's ruling to the supreme court. McGee, in turn, moved to "amend the judgment" to include Arizona Rule of Civil Procedure ("Rule") 54(b) language reflecting that his claims for attorney fees and costs were still pending in the superior court. After the appellate matter was fully briefed, the supreme court entered a signed order affirming the superior court, finding "abundant" evidence that Syms had not produced "enough valid signatures to qualify for the ballot."

¶10 After the supreme court issued its order, the superior court considered McGee's motion for attorney fees and costs and concluded that Syms defended McGee's claims without substantial justification and primarily for delay and...

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