Parker v. City of Tucson

• Citation: 233 Ariz. 422,314 P.3d 100
• Decision Date: 19 November 2013
• Docket Number: No. 2 CA–CV 2013–0120.,2 CA–CV 2013–0120.
• Parties: Yolanda PARKER; John Springer Jr.; and Chris Anderson, Qualified Electors, Plaintiffs/Appellants/Cross–Appellees, v. CITY OF TUCSON; Roger W. Randolph, In His Capacity as City Clerk for the City of Tucson; F. Ann Rodriguez, In Her Official Capacity as Pima County Recorder; Jonathan Rothschild, In His Official Capacity as Mayor of the City of Tucson; Tucson City Council, A Governing Body; Regina Romero, In Her Official Capacity as Member of the Tucson City Council; Paul Cunningham, In His Official Capacity as Member of the Tucson City Council; Karin Uhlich, In Her Official Capacity as Member of the Tucson City Council; Shirley Scott, In Her Official Capacity as Member of the Tucson City Council; Richard Fimbres, In His Official Capacity as Member of the Tucson City Council; Steve Kozachik, In His Official Capacity as Member of the Tucson City Council; Pima County Board of Supervisors, A Political Subdivision of the State of Arizona; Ally Miller, In Her Official Capacity as Member of the Pima County Board of Supervisors; Ramon Valadez, In His Official Capacity as Member of the Pima County Board of Supervisors; Sharon Bronson, In Her Official Capacity as Member of the Pima County Board of Supervisors; Ray Carroll, In His Official Capacity as Member of the Pima County Board of Supervisors; Richard Elias, In His Official Capacity as Member of the Pima County Board of Supervisors, Defendants/Appellees. Committee for Sustainable Retirement in Support of Initiative Petition 2013–I004 and in Support of the Ballot Measure, Real Party in Interest/Appellee/Cross–Appellant.
• Court: Court of Appeals of Arizona

233 Ariz. 422
314 P.3d 100

Yolanda PARKER; John Springer Jr.; and Chris Anderson, Qualified Electors, Plaintiffs/Appellants/Cross–Appellees,
v.
CITY OF TUCSON; Roger W. Randolph, In His Capacity as City Clerk for the City of Tucson; F. Ann Rodriguez, In Her Official Capacity as Pima County Recorder; Jonathan Rothschild, In His Official Capacity as Mayor of the City of Tucson; Tucson City Council, A Governing Body; Regina Romero, In Her Official Capacity as Member of the Tucson City Council; Paul Cunningham, In His Official Capacity as Member of the Tucson City Council; Karin Uhlich, In Her Official Capacity as Member of the Tucson City Council; Shirley Scott, In Her Official Capacity as Member of the Tucson City Council; Richard Fimbres, In His Official Capacity as Member of the Tucson City Council; Steve Kozachik, In His Official Capacity as Member of the Tucson City Council; Pima County Board of Supervisors, A Political Subdivision of the State of Arizona; Ally Miller, In Her Official Capacity as Member of the Pima County Board of Supervisors; Ramon Valadez, In His Official Capacity as Member of the Pima County Board of Supervisors; Sharon Bronson, In Her Official Capacity as Member of the Pima County Board of Supervisors; Ray Carroll, In His Official Capacity as Member of the Pima County Board of Supervisors; Richard Elias, In His Official Capacity as Member of the Pima County Board of Supervisors, Defendants/Appellees.
Committee for Sustainable Retirement in Support of Initiative Petition 2013–I004 and in Support of the Ballot Measure, Real Party in Interest/Appellee/Cross–Appellant.

No. 2 CA–CV 2013–0120.

Court of Appeals of Arizona,
Division 2.

Nov. 19, 2013.

[314 P.3d 103]

Coppersmith Schermer & Brockelman PLC By Andrew S. Gordon, Roopali H. Desai, John C. Kelly, and Melissa A. Soliz,

[314 P.3d 104]

Phoenix, for Plaintiffs/Appellants/Cross–Appellees.

Gammage & Burnham P.L.L.C. By Lisa T. Hauser and Christopher L. Hering, Phoenix, for Real Party in Interest/Appellee/Cross–Appellant.

OPINION
VÁSQUEZ, Presiding Judge.

¶ 1 In this expedited election appeal, Yolanda Parker, John Springer Jr., and Chris Anderson (jointly, the Employees) ¹ challenge the trial court's September 3, 2013 order denying their request for injunctive and mandamus relief, entering judgment in favor of the Committee for Sustainable Retirement in Support of Initiative Petition 2013–I004 and in Support of the Ballot Measure (the Committee) and numerous government defendants,² and permitting the City of Tucson Initiative Petition 2013–I004 (the Initiative) to be placed on the November 5, 2013 ballot. Although the trial court invalidated some of the signatures obtained in support of the Initiative, it nevertheless found there were a sufficient number of valid signatures. In its cross-appeal, the Committee argues the court erred by disqualifying certain petition sheets and invalidating the corresponding signatures, permitting the Employees to amend their pleadings during trial, and denying the Committee's motion to dismiss the complaint as untimely.

¶ 2 By order dated September 12, 2013, this court reversed the judgment and remanded the case to the trial court with directions to enter an injunction pursuant to A.R.S. § 19–122(C) to prevent the Tucson City Clerk from “certifying or printing” the Initiative on the ballot, with a written opinion to follow.³ This is that opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 The Committee is an unincorporated association and political committee organized for the purpose of promoting and sponsoring the Initiative, which sought to amend the Tucson City Charter to eliminate the City's non-public safety employee pension system. SeeA.R.S. § 16–902.01 (providing requirements for registration of political committees). The Committee filed a statement of organization with the City, took out initiative petitions, and collected signatures that were submitted to the Tucson City Clerk and transmitted to the Pima County Recorder for verification, in order to place the Initiative on the City's November 5, 2013 ballot.⁴

[314 P.3d 105]

¶ 4 The Committee hired political consulting firm Zimmerman Public Affairs, owned by Carol and Peter Zimmerman, to direct and monitor the campaign to qualify the Initiative for the ballot, hire petition circulators, and obtain petition signatures. On July 2, 2013, the Committee submitted to the City Clerk 1,857 petition signature sheets containing 23,364 signatures; 12,730 valid signatures were required to place the Initiative on the ballot. The deadline for printing ballots for the November 2013 election was September 16, 2013. The City Clerk issued an “Interim Facially Sufficient Petition Receipt” to the Committee, stating 22,693 signatures were “eligible for verification” under A.R.S. § 19–121.01(A), and transmitted the signatures to the Pima County Recorder for the requisite five-percent random sample. See§ 19–121.01(B), (C). On July 16, 2013, the Pima County Recorder issued a certification stating it had received 1,135 signatures for verification and “was able to verify 893 signatures versus 242 that were invalidated.” That same day, the City Clerk issued a certificate stating the Initiative had sufficient signatures to qualify for the ballot.

¶ 5 On July 22, 2013, the Employees filed a complaint pursuant to § 19–122(C), an expedited challenge to the sufficiency of the Initiative, requesting an immediate trial and seeking injunctive and mandamus relief. They alleged certain petition sheets and individual signatures were invalid because nine of the circulators were ineligible to circulate petitions. They maintained that six of the circulators had prior felony convictions and were ineligible to register to vote and three were not registered as out-of-state petition circulators. The Employees also asserted some of the petitions were defective because they had been accompanied by incomplete circulator affidavits and that various individual signatures were invalid because they were incomplete or otherwise defective.

¶ 6 The trial court held an expedited evidentiary hearing pursuant to § 19–122(C) on August 2 and 6. In its August 16 ruling, the court entered preliminary findings of fact and conclusions of law. The court found that petitions circulated and signatures obtained by two of the circulators were defective because the circulators were convicted felons. It therefore concluded the 1,196 signatures those circulators had obtained were invalid. The court also found that 4,456 signatures were invalid because the signatures themselves were defective, either because they had been obtained by out-of-state circulators or because the accompanying circulator affidavit was false. The court ordered the City Clerk to remove the disqualified signatures, prepare a new random sample, and recalculate the projected number of valid signatures; it temporarily enjoined the City Clerk from placing the Initiative on the ballot.

¶ 7 Based on the new random sample and its having found 157 of the 853 signatures invalid, the Pima County Recorder calculated a new error rate of 18.4 percent. On September 3, the City Clerk issued a new certification after concluding the Initiative qualified for the ballot by 1,047 signatures. That same day, the trial court entered a final order that incorporated its August 16 order and took into account the City Clerk's new tabulations and certification. The court invalidated 5,652 signatures: 4,857 signatures that had been collected by ineligible circulators, 794 signatures from defective petition sheets, and one signature that was defective on another specified sheet. Based on this determination and the error rate provided by the Pima County Recorder, the court found there were sufficient signatures to place the Initiative on the November 5, 2013 election ballot. This expedited appeal by the Employees and the Committee's cross-appeal followed. SeeAriz. R. Civ.App. P. 8.1; § 19–122(C).

DISCUSSION A. The Employees' Appeal
1. Eligibility of Convicted Felons to Circulate Petitions

¶ 8 The Employees alleged in their complaint that Thomas Coombes, Daryl Oberg,

[314 P.3d 106]

Josephine Leonardi, James Greer, Mark Klepacki, and Gary Robinson were convicted felons who were not qualified to serve as petition circulators based on the requirements of A.R.S. § 19–112(D) because they were ineligible to register to vote according to the criteria established by the Arizona legislature. Specifically, they alleged the civil rights of these individuals had been suspended as a result of their convictions and had not been restored. The Committee stipulated Klepacki had been convicted of felonies in Florida and that his civil rights had not been restored. The court found there was clear and convincing evidence Greer also was not qualified to circulate petitions as a consequence of his felony convictions. Thus, the court found the signatures Greer and Klepacki had obtained were invalid.

¶ 9 The trial court found there was no evidence establishing Coombes, Oberg, or Leonardi had applied for a restoration of the civil rights suspended because of their felony convictions. Nevertheless, it determined all three were eligible to vote in the states where they had been convicted of felonies—California, Ohio, and Illinois—and, consequently, they were eligible to serve as circulators in Arizona.

¶ 10 The Employees argue on appeal that eligibility to vote in another state is insufficient and that the three individuals were not qualified to serve as circulators in Arizona because their civil rights had not been fully restored. The Employees maintain that, had the trial court correctly invalidated the signatures collected by these individuals, the court necessarily would have found the Committee had failed to submit the requisite 12,730 signatures to place the Initiative on the November 2013 ballot. The Employees also assert that, in addition to “confusi[ng] ... the restoration of civil rights and the restoration...