John L Powers v. John M Carpenter ( 2002 )

SUPREME COURT OF ARIZONA
En Banc
JOHN L. POWERS, an individual ) Arizona Supreme Court
and qualified elector, ) No. CV-02-0221-AP/EL
)
Plaintiff/Appellee, ) Maricopa County
) Superior Court
v. ) No. CV 2002-012155
)
) MEMORANDUM DECISION
JOHN M. CARPENTER, an ) (Not for Publication -
individual, SALOMON LEIJA, an ) Rule 111, Rules of the
individual, STEPHEN VEGA, an ) Arizona Supreme Court
individual, Real Party in )
Interest, THE HONORABLE R. )
FULTON BROCK, DON STAPLEY, )
ANDREW KUNASEK, MAX W. WILSON, )
MARY ROSE WILCOX, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE MARICOPA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL )
CAPACITY; THE MARICOPA COUNTY )
BOARD OF SUPERVISORS; THE )
HONORABLE HELEN PURCELL, THE )
DULY ELECTED MARICOPA COUNTY )
RECORDER, WHO IS NAMED SOLELY IN )
HER OFFICIAL CAPACITY, AND THE )
HONORABLE KAREN OSBORNE, THE )
DULY APPOINTED MARICOPA COUNTY )
DIRECTOR OF ELECTIONS, WHO IS )
SOLELY NAMED IN HER OFFICIAL )
CAPACITY; THE HONORABLE BETSEY )
BAYLESS; THE DULY ELECTED )
ARIZONA SECRETARY OF STATE IN )
HER OFFICIAL CAPACITY, )
)
Defendants/Appellants. )
)
Appeal from the Superior Court of Maricopa County
The Honorable Paul A. Katz, Judge
AFFIRMED
WILLIAMS & ASSOCIATES Scottsdale
By Scott E. Williams
and
LAW OFFICE OF ROBERT E. MELTON Scottsdale
By Robert E. Melton
Attorneys for Plaintiff-Appellee
LAW OFFICE OF RAFAEL CONTRERAS Phoenix
By Rafael Contreras
Attorney for Defendant-Appellant Leija
RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
By Jill M. Kennedy, Deputy County Attorney
Attorneys for Defendants-Appellants the Honorable R. Fulton Brock,
Don Stapley, Andrew Kunasek, Max Wilson, Mary Rose Wilcox, Maricopa
County Board of Supervisors, the Honorable Helen Purcell, and the
Honorable Karen Osborne.
R Y A N, Justice
¶1 Salomon Leija filed nominating petitions to have his
name appear on the Democratic primary ballot as a candidate for the
office of Maricopa County Constable, East Phoenix #1 Precinct.
John Powers brought an action in the trial court against Leija and
several others, challenging Leija’s candidacy on the grounds that
Leija did not reside in the precinct.
¶2 The trial court held an evidentiary hearing after which
it found the following. In May 2002 Leija and his wife moved from
their three-bedroom west Phoenix home and signed a six-month lease
on a small studio apartment in the East Phoenix #1 Precinct. Leija
obtained a driver’s license and changed his voter registration card
using the new address. Both Leija and his wife had lived in the
apartment since May, and were renting their house in west Phoenix
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to family members for well below the fair market value. The
majority of their furniture, clothes and personal belongings
remained in their west Phoenix home, and the “cramped” apartment
had “minimal bare bones furnishings.” Leija did not change his
mailing address with his bank or creditors and most of the accounts
for the home’s utility services remained in the couple’s names.
¶3 The trial court concluded, by a preponderance of the
evidence, that Leija did not move to the apartment with an intent
to stay for an indefinite time. The court determined that the
reason for the move was so Leija could run for office and that if
he lost the election, he would move back to his home in west
Phoenix. The court enjoined the Maricopa County Elections
Department and the Secretary of State from placing Leija on the
Democratic primary ballot. Leija then appealed to this court, and
we have jurisdiction under Arizona Revised Statutes (“A.R.S.”)
section 16-351(A) (Supp. 2001). In a previous order, we affirmed
the trial court with a written decision to follow. This is that
decision.
¶4 Leija contends that the trial court erred by applying a
preponderance of the evidence standard instead of a clear and
convincing evidence standard. Leija concedes that he was aware of
the standard of proof the trial court applied at the evidentiary
hearing, and admits that he did not properly raise the issue below.
He maintains, however, that this court should consider the issue on
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the merits because it is a matter of statewide importance.
Substantively, Leija asserts that his voter registration card with
the new address raised the presumption that he is a resident of
East Phoenix #1 Precinct. He argues that the presumption can only
be rebutted by clear and convincing evidence under A.R.S. § 16-
121.01(B) (1996) and McDowell Mountain Ranch Land Coalition v.
Vizcaino, 190 Ariz. 1, 945 P.2d 312 (1997).
¶5 The failure to raise an error at the trial court level
constitutes a waiver of that argument if brought for the first time
on appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d
657, 658 (1994). But even if Leija had not waived the issue
concerning the standard of proof, the trial court did not err in
applying a preponderance of the evidence standard. Section 16-
121.01 applies only to whether a citizen is properly registered to
vote, not to a challenge of a candidate’s residency in a precinct.
When applicable, that statute requires a clear and convincing
standard of proof. A.R.S. § 16-121.01(B). McDowell Mountain
applied that standard in a challenge involving whether petition
circulators were qualified electors, a requirement for petition
circulators under A.R.S. § 19-114(A) (2002). 190 Ariz. at 4, 945
P.2d at 315.
¶6 Such a standard of proof does not apply here for the
following reasons. First, the requirements for candidates for
public office are governed by A.R.S. § 16-311(A) (Supp. 2001). It
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states in part that candidates “shall reside in the county,
district or precinct which the person proposes to represent.” And
A.R.S. § 16-101 (1996) defines residency for the purposes of Title
16 as “actual physical presence in the political subdivision,
combined with an intent to remain.” A.R.S. § 16-101(B). Second,
unlike § 16-121.01, A.R.S. § 16-311(A) is silent as to the required
standard of proof. Third, the issue here does not concern an
individual’s constitutionally protected right to vote. See
Reynolds v. Sims, 377 U.S. 533, 562 (1964) (recognizing the right
to vote as fundamental, subject to strict scrutiny). There is no
analogous constitutional right to qualify and run for office. See
Bullock v. Carter, 405 U.S. 134, 142-43 (1972) (refusing to apply
strict scrutiny analysis to barriers to candidate access to primary
ballot). Therefore, we hold that the standard of proof to be
applied in determining whether a candidate resides in the political
subdivision which he or she proposes to represent is preponderance
of the evidence.
¶7 We will sustain the findings of the trial court if the
record contains substantial evidence to support the trial court’s
action. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d
704, 709 (1999). Substantial evidence supports the trial court’s
finding that Leija did not intend to remain in the East Phoenix #1
Precinct unless he won the election.
¶8 Accordingly, we affirm the trial court’s order enjoining
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the Maricopa County Elections Department and the Secretary of State
from placing Leija’s name on the Democratic primary ballot.
Michael D. Ryan, Justice
CONCURRING:
Charles E. Jones, Chief Justice
Ruth V. McGregor, Vice Chief Justice
Stanley G. Feldman, Justice
(Note: Justice Rebecca White Berch did not participate in the
determination of this matter.)
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