Moreno v. Jones
| Decision Date | 09 August 2006 |
| Docket Number | No. CV-06-0237-AP/EL.,CV-06-0237-AP/EL. |
| Citation | 139 P.3d 612,213 Ariz. 94 |
| Parties | Paul MORENO, Plaintiff/Appellee, v. Russell L. JONES, Defendant/Appellant, Jan Brewer, Arizona Secretary of State; Eugene Fisher, in his official capacity as a member of the La Paz County Board of Supervisors; Clifford Edey, in his official capacity as a member of the La Paz County Board of Supervisors; Mary Scott, in her official capacity as a member of the La Paz County Board of Supervisors; Leonore Lonora Stuart, in her official capacity as a member of the Yuma County Board of Supervisors; Kathryn Prochaska, in her official capacity as a member of the Yuma County Board of Supervisors; Marco A. Reyes, in his official capacity as a member of the Yuma County Board of Supervisors; Gregory F. Ferguson, in his official capacity as a member of the Yuma County Board of Supervisors; Shelley Baker, in her official capacity as Recorder for La Paz County; Susan Hightower Marler, in her official capacity as Recorder for Yuma County, Defendants. |
| Court | Arizona Supreme Court |
Perkins Coie Brown & Bain PA by Paul F. Eckstein, Charles A. Blanchard, Rhonda L. Barnes, Patricia A. Alexander, Phoenix, Attorneys for Paul Moreno.
Terri Skladany, Acting Arizona Attorney General by Emma Lehner Mamaluy, Assistant Attorney General, Peter A. Silverman, Assistant Attorney General, Diana L. Varela, Assistant Attorney General, Phoenix, Attorneys for Jan Brewer.
Jon R. Smith, Yuma County Attorney by Robert Lee Pickels, Jr., Deputy County Attorney, William J. Kerekes, Deputy County Attorney, Yuma, Attorneys for Leonore Lonora Stuart, Kathryn Prochaska, Marco A. Reyes, Gregory F. Ferguson, and Susan Hightower Marler.
Williams & Associates by Scott E. Williams, Mark Zinman and Law Office of Robert E. Melton by Robert E. Melton, Scottsdale, Attorneys for Russell L. Jones.
Andrew P. Thomas, Maricopa County Attorney by Geraldine L. Roll, Deputy County Attorney, Phoenix, Attorneys for Eugene Fisher, Clifford Edey, Mary A. Scott, and Shelley Baker.
¶ 1 This case concerns elector Paul Moreno's challenge to nomination petitions filed by Russell L. Jones, a Republican candidate for State Senate in Legislative District 24. Jones appealed from a superior court decision finding that he had committed petition forgery, disqualifying him from the primary election ballot, and declaring him ineligible for elected office for five years. The expedited appeal was considered by a division of this court consisting of Chief Justice McGregor, Justice Hurwitz, and Justice Bales. On July 20, 2006, this court issued an order holding that Jones should remain on the ballot and stated that a written opinion would follow. This is that opinion.
¶ 2 A person seeking to appear on the ballot for a partisan primary election must submit nomination petitions signed by a sufficient number of qualified electors who either belong to the candidate's party or are not members of another party represented on the ballot. Ariz.Rev.Stat. ("A.R.S.") §§ 16-314, -322 (Supp.2005). Signatures on nomination petitions must be obtained by circulators who are themselves eligible to register to vote and who appropriately certify their collection of the signatures. A.R.S. § 16-321(D) (Supp.2005). The circulator, the person "before whom the signatures were written," must verify, among other things, "that each of the names on the petition was signed in his presence on the date indicated. . . ." Id. A nomination petition is void if verified by someone other than the person who actually obtained the signatures. Brousseau v. Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984).
¶ 3 Jones needed to submit 207 valid signatures. He filed twenty-nine nomination petitions, containing 315 signatures, with the Arizona Secretary of State, and he personally verified nineteen petitions as their circulator.
¶ 4 On June 28, 2006, Moreno filed a timely challenge to Jones' petitions pursuant to A.R.S. § 16-351 (Supp.2005). Moreno argued that Jones should be disqualified from the ballot because some petitions omitted information required by A.R.S. § 16-314(C); certain signatures were invalid; and Jones had verified petitions containing signatures that he had not himself obtained and that this conduct constituted petition forgery. Under A.R.S. § 16-351(F), if a candidate is found guilty of petition forgery, all of the candidate's nominating petitions are disqualified and the candidate is ineligible for elected office for five years.
¶ 5 At trial on July 3, 2006, Jones testified that seven petitions, which he had verified as the circulator, contained signatures obtained at a town hall meeting in Yuma on April 17, 2006. Jones said he was present at this event while two adult males (whose names he could not recall) were circulating his nomination petitions, but Jones acknowledged that he had not personally obtained all of the signatures. Jones also said that, while he was generally aware that people were signing his nomination petitions, he could not see what each person was writing or identify particular signers.
¶ 6 Moreno called two witnesses who testified that they were each approached at the April 17 town hall by a young high-school-aged woman and asked to sign petitions for Jones. Neither witness saw Jones in the vicinity.
¶ 7 With regard to petitions signed other than on April 17, Jones testified that he personally obtained all the signatures on the petitions he verified as the circulator.
¶ 8 After the July 3 trial, the judge ruled that Jones was not in fact the circulator for certain signatures obtained on April 17. Consistent with Brousseau, the judge held that the seven nominating petitions containing these signatures were void, which invalidated sixty-three signatures. The trial judge determined, however, that Jones had not committed petition forgery with respect to these petitions, noting that Jones attended the event at which they were circulated.
¶ 9 Twenty-four signatures (including nine that appeared in the rejected nominating petitions) were found to be invalid because the signer was ineligible or had signed more than once on the same day. See A.R.S. § 16-321(C) (). As a result, Jones was left with 237 valid signatures. On July 5, the trial judge entered judgment for Jones, qualifying him for the 2006 primary election ballot.
¶ 10 On July 7, Moreno moved to re-open the judgment, Ariz. R. Civ. P. 60(c), and for a new trial, Ariz. R. Civ. P. 59. The motion alleged that Jones had testified falsely that he personally circulated petitions on May 1 and May 2, 2006. In support of this motion, Moreno submitted legislative attendance records showing that Jones (currently a State Representative) was in Phoenix at 1:30 p.m. on May 1 and on May 2. Moreno also submitted a declaration by Barbara Harrison, who stated that she had signed Jones' petition in Yuma on the afternoon of May 1, that the circulator was a woman, and that Harrison did not recall seeing Jones there.
¶ 11 During a July 11 hearing on Moreno's motion, Harrison testified that one of Jones' female relatives had asked her to sign Jones' petition in Yuma on May 1 between 2 p.m. and 3 p.m. Harrison said she did not see Jones in the room when she signed. The trial judge granted Moreno's motion and held a new trial on July 11 and 12. At this trial, Jones testified that, although he had been in Yuma on the morning of May 1, he then flew to Phoenix for legislative proceedings, and he remained in Phoenix all day on May 2. Jones acknowledged that he could not have obtained any signatures on May 2.
¶ 12 After the second trial, the judge entered a new decision holding that not only were the seven petitions containing signatures dated April 17 void, but that two other petitions with signatures dated May 1 and May 2 were also void because Jones had verified these petitions when in fact he was in Phoenix when the signatures were obtained in Yuma. The judge further held that Jones, by submitting these petitions to the Secretary of State, had committed petition forgery. The judge disqualified all of Jones' 315 signatures, held Jones ineligible for the primary election ballot, and barred him from seeking elected office for five years pursuant to A.R.S. § 16-351(F).
¶ 13 Jones filed a timely appeal with this court pursuant to A.R.S. § 16-351(A).
¶ 14 As a threshold issue, Jones argues that the trial court erred by not dismissing Moreno's lawsuit for failure to name indispensable parties. In a nomination petition challenge, the plaintiff must name as defendants, among others, the board of supervisors of the county responsible for preparing the ballots. A.R.S. § 16-351(C)(3). Moreno, Jones argues, did not name the Yuma County Board of Supervisors and the La Paz County Board of Supervisors as distinct entities. Moreno, however, did name each supervisor in his or her official capacity. This satisfies the statutory requirement. Cf. Kyle v. Daniels, 198 Ariz. 304, 9 P.3d 1043 (2000) ().
¶ 15 Jones also argues that the trial court erred in granting Moreno's motion to re-open the judgment under Rule 60(c)(3). This rule allows a trial judge to re-open a judgment due to "fraud . . ., misrepresentation or other misconduct of an adverse party" if the motion is made "within a reasonable time" and no more than six months from entry of the order or judgment. We review a trial judge's decision to grant a Rule 60(c) motion for an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985).
¶ 16 Although A.R.S. § 16-351(A) provides short time limits for challenges to...
To continue reading
Request your trial
-
People v. Cook
...the trial court did not err in not instructing the jury on the elements of unadjudicated crimes offered as circumstances in aggravation. [139 P.3d 612] D. Instruction on Limited Use of Defendant's At the penalty phase, Dr. George Wilkinson, a psychiatrist, testified as a defense expert and ......
-
Town Prosecutor's Office v. Downie
...for sums already received demonstrates the legislature's intent that the victim's "loss" reflect benefits conferred. See Moreno v. Jones, 213 Ariz. 94, 99, ¶ 28, 139 P.3d 612, 617 (2006) (looking to other provisions in a statutory scheme to assist in determining ¶ 12 Consistent with this un......
-
Bennett v. Baxter Group, Inc.
...not be set aside unless clearly erroneous."). The court resolved any conflict in the evidence, and we uphold its decision. See Moreno v. Jones, 213 Ariz. 94, ¶ 20, 139 P.3d 612, 616 (2006) (findings may be clearly erroneous if based on reasonable conflict of evidence). And we reject Baxter'......
-
In re Non-Member of State Bar, Van Dox
...of evidence for that of the [factfinder]"). To be clearly erroneous, a finding must be unsupported by any reasonable evidence. Moreno v. Jones, 213 Ariz. 94, 98, ¶ 20, 139 P.3d 612, 616 (2006) (citing O'Hern v. Bowling, 109 Ariz. 90, 92-93, 505 P.2d 550, 552-53 (1973)).3 Deference to a hear......