Mussi v. Hobbs

• Docket Number: CV-22-0207-AP/EL
• Decision Date: 24 July 2023
• Parties: Scot Mussi, et al., Plaintiffs/Appellants/Cross-Appellees, v. Katie Hobbs, in Her Capacity as the Secretary of State of Arizona, Defendant/Appellee, Arizonans for Free and Fair Elections (ADRC Action), a Political Committee, Real Party in Interest/Appellant.
• Court: Arizona Supreme Court

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Scot Mussi, et al., Plaintiffs/Appellants/Cross-Appellees,
v.
Katie Hobbs, in Her Capacity as the Secretary of State of Arizona, Defendant/Appellee,

Arizonans for Free and Fair Elections (ADRC Action), a Political Committee, Real Party in Interest/Appellant.

No. CV-22-0207-AP/EL

Supreme Court of Arizona

July 24, 2023

Appeal from the Superior Court in Maricopa County The Honorable Joseph P. Mikitish, Judge No. CV2022-009391 AFFIRMED

Kory Langhofer, Thomas J. Basile, Statecraft PLLC, Phoenix, Attorneys for Scot Mussi, Aimee Yentes, and Arizona Free Enterprise Club

Amy B. Chan, Noah Gabrielsen, Arizona Secretary of State's Office, Phoenix, Attorneys for Katie Hobbs

James E. Barton, II, Jacqueline Mendez Soto, Barton Mendez Soto PLLC, Tempe; and Joshua J. Messer, Travis C. Hunt, Osborn Maledon, P.A., Phoenix, Attorneys for Arizonans for Free and Fair Elections (ADRC Action)

Danielle Marie Lang, Campaign Legal Center, Washington, DC; and Roy Herrera, Daniel A. Arellano, Herrera Arellano LLP, Phoenix, Attorneys for Amicus Curiae Campaign Legal Center

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Dominic E. Draye, Greenberg Traurig LLP, Phoenix, Attorneys for Amici Curiae Governor Doug Ducey, Senate President Karen Fann, and Speaker of the House Russell "Rusty" Bowers

Michael Bailey, Arizona Chamber of Commerce and Industry, Phoenix, Attorney for Amicus Curiae Arizona Chamber of Commerce and Industry

JUSTICE MONTGOMERY authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, and JUSTICES LOPEZ, BEENE, and KING joined. VICE CHIEF JUSTICE TIMMER authored an Opinion in which she concurred in part, dissented in part, and dissented in the result. ^[*]

OPINION

MONTGOMERY, JUSTICE

¶1 This case concerns multiple expedited election appeals and cross-appeals regarding the interpretation and application of the statutes governing initiative petitions and the method for determining whether an initiative has sufficient valid signatures to qualify for placement on the ballot. We previously issued orders affirming in part and reversing in part trial court rulings, remanded for further determinations, and ultimately affirmed the trial court's amended final judgment finding that the challenged initiative failed to qualify for the ballot. This Opinion sets forth our reasoning for those orders.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 On February 7, 2022, Arizonans for Free and Fair Elections (ADRC Action) (the "Committee") filed an application for a serial number to circulate petitions for an initiative entitled the "Arizona Fair Elections Act" (the "Act"). The Act addressed voting rights, campaign finance, citizen-initiated measures, and lobbyist regulation. On July 7, 2022, the Committee submitted about 52,000 petition sheets with an estimated 475,290 signatures to the Secretary of State's Office (the "Secretary"). The Committee needed at least 237,645 valid signatures to qualify the Act for

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the November 8, 2022, General Election ballot.^[1]

¶3 On July 22, 2022, Scot Mussi, Aimee Yentes, and the Arizona Free Enterprise Club (collectively "Plaintiffs") filed a complaint challenging the legal sufficiency of certain circulator registrations and the initiative petition as a whole. Challenges pursuant to A.R.S. § 19-118 encompassed allegations that circulators either failed to properly register prior to circulating petitions or failed to provide required information on registration applications. Plaintiffs also claimed that nearly 80% of the signatures submitted by the Committee were invalid due to noncompliance with chapter 1, title 19, pursuant to A.R.S. § 19-122(C).

¶4 The Secretary notified the Committee by letter dated July 31, 2022, that 399,838 signatures were eligible for random sampling and verification by county recorders following her initial review of the petitions and signatures as required by A.R.S. § 19-121.01(A). The county recorder review had to be completed no later than August 22, 2022. See A.R.S. § 19-121.02.

¶5 From August 9 to August 13, a Special Master appointed by the trial court held a series of hearings with the parties, reviewing 354 exhibits and Plaintiffs' thirty-two objections, with subparts. Afterwards, the Special Master submitted a report to the trial court that included findings of fact and conclusions of law, stipulations of the parties to the validity and invalidity of signatures in various objections, the reservation of some objections for trial, and noting that Plaintiffs withdrew two objections. The court thereafter conducted an evidentiary hearing on August 15 and 16 and entered an interlocutory judgment on August 18, pursuant to Arizona Rule of Civil Procedure 54(b). The judgment adopted the report of the Special Master, granted Plaintiffs' objections in part and denied others, and left the record open until after the county recorders' review to address voter registration objections. Accordingly, the court did not then decide whether the Act had enough signatures to qualify for the

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ballot.

¶6 The parties sought expedited review of the trial court's judgment. In our August 22 decision order, we affirmed the court's interlocutory judgment in part, reversed in part, remanded with instructions, and stated that an opinion would follow.

¶7 On August 25, the trial court entered a final judgment, finding that the initiative had 239,926 valid signatures, more than the 237,645 required to qualify for the ballot, and ordered the Secretary to "not rescind her previously issued determination that the measure is qualified for the November 2022 General Election Ballot." Plaintiffs appealed, contesting the calculation of valid signatures. However, upon review of the trial court's judgment, we were unable to determine how the court calculated the final number of valid signatures. This hindered our review of Plaintiffs' appeal. Therefore, we issued a supplemental decision order remanding the matter to the trial court with instructions to amend its judgment by detailing the particular calculations used to reach its determination. We did not conclude or comment as to whether the court's ultimate finding was in error.

¶8 After receiving the parties' additional briefing on the method for determining the number of valid signatures, the trial court entered an amended final judgment, which set forth its calculations in detail. Unlike its prior ruling, the court found that the initiative had an insufficient number of valid signatures, 236,187, and ordered the Secretary to rescind the determination that the initiative qualified for the ballot. The Committee appealed and by decision order we affirmed the trial court's ruling and stated that an opinion would follow.

¶9 To facilitate setting forth the reasoning in our previous orders affirming in part and reversing in part the trial court's Rule 54(b) judgment and affirming its amended final judgment, we consolidated the various matters in this Opinion. We have jurisdiction under article 6, section 5 of the Arizona Constitution and A.R.S. §§ 19-118, -122(C).

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II. DISCUSSION

A. First Appeal

¶10 Plaintiffs and the Committee challenged several of the trial court's rulings in the August 18 interlocutory judgment concerning the validity of petitions based on whether certain circulators were properly registered. The Committee noted that its cross-appeal was "limited to reviewing objections on which the trial court ruled that will ultimately impact the calculation for the initiative's ballot qualification." However, in a footnote, the Committee stated:

The trial court also did not rule that sufficient signatures were disqualified to prevent the Secretary from certifying the measure for the ballot. Indeed, although not before the Court at this time, there have not been 162,213 signatures, in addition to those removed by the Secretary, disqualified by the trial court at this time, nor would there be even if the Court reversed on all issues raised by Petitioners.

¶11 Consequently, we issued an order on August 22 directing the parties to provide a joint statement explaining, no later than 2:00 p.m. the next day:

(1) the status or result of the county certifications under A.R.S. § 19-121.02 and whether that affects the eligibility of the initiative; (2) the effect, if any, of the Court's consideration of the various matters in this case on the eligibility of the initiative; and attaching (3) a short declaration from the office of the appropriate election director advising of the latest date by which this Court needs to decide this appeal.

¶12 The parties responded that "the margin of victory or loss in this matter is unusually narrow" and that they did not appeal portions of the trial court's ruling that were "unlikely to be outcome determinative," though they asserted that the issues before the Court "may be material." The parties assured the Court that "[i]f outside events (e.g., litigation

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concerning county recorder certifications) causes [sic] any of the issues pending in this appeal to become mathematically immaterial to the measure's qualification for the statewide ballot, the parties will promptly notify this Court of the issue's mootness." The State Elections Director provided a declaration that Maricopa County had the earliest deadline for ballot printing of August 25, 2022.

¶13 The resolution of the issues presented by the parties "involves interpretation and application of constitutional and statutory provisions regarding initiatives, which we review de novo." Molera v. Reagan, 245 Ariz. 291, 294 ¶ 8 (2018). "Where unambiguous, we apply the express terms of a constitutional or statutory provision without resorting to secondary methods of construction." Arizonans for Second Chances, Rehab., &Pub. Safety v. Hobbs, 249 Ariz. 396, 406, ¶ 28 (2020). Further, we give meaning to "[e]ach word, phrase, clause, and sentence . . . so that no part will be void, inert, redundant, or trivial." City of...