MARICOPACOUNTY
CV 2012-013094 / 08/31/2012
CLERK OF THE COURT
HON. JOHN REA / L. Gilbert
Deputy
SAVE OUR VOTE OPPOSING C-03-2012, et al. / MICHAEL T LIBURDI JR.
v.
KEN BENNETT, et al. / MICHELE LEE FORNEY
COLLEEN CONNOR
KIMBERLY ANNE DEMARCHI
JOSHUA KREDIT
THOMAS J COLLINS
MINUTE ENTRY
Plaintiffs filed a Complaint for injunctive and mandamus relief under ARS § 19-122(C) challenging the legal sufficiency of the circulators’ affidavits for nearly 70 circulators of initiative petitions for the Open Election/Open Government Act initiative. Defendants Bennett and Open Government Committee moved to dismiss on various grounds. The Court denied the motions to dismiss but included the defense of laches in the evidentiary hearing. Following the evidentiary hearing, the Court took the matter under advisement and now makes these findings of fact and conclusions of law.
Defendant Open Government Committee (“Committee”) argued the Complaint of Save Our Vote (“SOV”) should be dismissed for laches. The doctrine of laches requires a showing of unreasonably delay by SOV that caused prejudice to the Committee. The Court finds from the testimony of Jennifer Wright that SOV acted with diligence and promptness. SOV (the court includes Jennifer Wright in this designation although the evidence was that she was not a member or a paid agent and she testified that she was working independently) communicated with the Secretary of State’s office regularly after the public records request for copies of the petition signature sheets was made within days of the filing of the sheets with the Secretary. SOV was not able to obtain some copies until August 3 and was not in possession of all copies until August 7. SOV undertook to scan 29,000 two-sided sheets and begin an examination of the entries. The Complaint was filed within a very few days after SOV’s review led the group to believe it had a viable claim.
The Court finds no unreasonable delay on the part of SOV in bringing this action.
The Committee complains of a lack of time to prepare to substantively address the merits of SOV’s allegations. This is undoubtedly true, and can be attributed in part to the broad brush used by SOV in the Complaint and Amended Complaint. The Complaint, filed six days before the evidentiary hearing, alleged various defects in the affidavits of 69 circulators. The Amended Complaint, filed less than two days before the evidentiary hearing, added a new allegation of circulator Rojelio Rojas not signing 20 petition signature sheets. At the hearing, SOV presented evidence on only four circulators.
However, the Court finds that the difficulties faced by the Committee in preparing for the hearing were not the result of any unreasonable conduct by SOV. The nature of election challenges means no party feels adequately prepared.
The Court finds that that the Committee has not proved laches.
SOV presented evidence of 20 signature sheets submitted by circulator Rojelio Rojas without the circulator’s signature on the circulator affidavit and three circulators who allegedly had felony convictions.
The alleged felony convictions are significant because a circulator must swear in the affidavit on every signature sheet that he or she is “qualified to register to vote.” ARS § 16-101 defines voter eligibility and specifically excludes felons whose civil rights have not been restored.
The three circulators with alleged felony convictions were Wanda Lebeaux, Sean Simpson, and Matthew Spiker. Jennifer Wright testified that she performed LexisNexis searches and confirmed the information of felony convictions with documents on the public web sites of the respective court systems. The Court rejected the Committee’s argument that felony convictions in this case must be proven with the same evidence required in criminal cases for proof of prior convictions.
The LexisNexis search for the three circulators matched the exact name and address the circulator used on the circulator’s affidavit on each petition signature sheet submitted by the circulator. The Court finds the evidence persuasive that Wanda Lebeaux and Matthew Spiker have felony convictions. The evidence is not as clear regarding Sean Simpson. The physical description in the LexisNexis material is markedly different from the physical description in the documents from the court website. The Court does not find the evidence persuasive as to Sean Simpson.
There was no direct evidence regarding restoration of rights for any of the three circulators. Ms. Wright testified that she could not find any order restoring the rights of any of the three, but the court finds her testimony far less than conclusive.
There are several issues raised by SOV’s evidence, aside from the sufficiency of proof as to LeBeaux, Spiker, and Simpson. The rule of substantial compliance applies to initiative petitions. It is hard to say that a circulator’s affidavit that is not even signed by the circulator substantially complies. The same is true for circulators who are not qualified to register to vote.
This brings up the issue of whether noncompliance requires disqualification of all signatures on the sheets. Courts have held that unless a failure to comply strictly with statutory requirements is expressly made fatal, the failure does not makes the signatures appearing on the petitions void.
Rojelio Rojas submitted petitions with 263 signatures. Wanda LeBeaux’s petitions contained 1,230 signatures. Spiker’s petitions contained 563.
SOV presented absolutely no evidence of fraud or impropriety in the actual collection of signatures.
Brousseau v. Fitzgerald, 138 Ariz. 453 (1984), has relevant guidance here. The court noted that the statutory circulation procedures were designed to reduce the number of erroneous signatures, guard against misrepresentations, and confirm that signatures were obtained according to law. 138 Ariz. at 456. The court stated: “We believe that there is real difference between mere omissions or irregularities and fraud.” The court held “that petitions containing false certifications by circulators are void.”
In Brousseau, the petitions in question were circulated by minors and “persons not qualified as electors,” although the latter term is not explained.
The Court concludes that the omission of a circulator’s signature on the affidavit is a fundamental defect that calls into question the validity of the signatures and is fatal. The Court concludes that the circulation of petitions by persons not qualified as electors is a fatal defect.
These conclusions result in the elimination of 2,056 signatures from the tally of valid signatures supporting the initiative.
In this cases companion, Open Government v. Purcell, CV 2012-013089, the Court ruled that the Committee successfully rehabilitated 577 signatures and that a recalculation of valid signatures resulted in 265,585 valid signatures, which is 6,372 more than the minimum.
Thus, even deducting the 2,056 signatures that the Court has found should be eliminated based on the evidence presented by SOV, the Committee still has filed more valid signatures than the minimum. The Amended Complaint’s prayer for an order enjoining the Secretary of State and CountyRecorder from printing the initiative on the ballot is not sustained.
IT IS ORDERED Plaintiffs are denied the relief requested in the Amended Complaint. The Amended Complaint is dismissed with prejudice.
Under A.R.S. § 16-351(A), any notice of appeal must be filed within five calendar days after the superior court’s decision in a challenge to the nomination of a candidate. See Bohart v. Hanna, 213 Ariz. 480, 143 P.3d 1021 (2006). An appeal that is belatedly prosecuted, such as one filed on the last day of the statutory deadline, may be dismissed on grounds of laches even if timely filed. See McClung v. Bennett, 225 Ariz. 154, 235 P.3d 1037 (2010). Special procedural rules govern expedited appeals in election cases. Ariz. R. Civ. App. P. 8.1.
FILED: Exhibit Worksheet
/S/ JOHN C. REA
______
HONORABLE JOHN C. REA
JUDGE OF THE SUPERIOR COURT
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an exception defined in the Administrative Order applies.
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