Rawles v. kavanaugh/jones/brock/stapley ( 2004 )

SUPREME COURT OF ARIZONA
En Banc
TOM RAWLES and LINDA RAWLES ) Arizona Supreme Court
individuals and electors, ) No. CV-04-0005-AP/EL
)
Petitioners, )
) Maricopa County
v. ) Superior Court
) No. CV2003-024219
DENNIS KAVANAUGH, real party in )
interest; BARBARA JONES, the )
duly appointed City Clerk who is )
named solely in her official )
capacity; R. FULTON BROCK, DON )
STAPLEY, ANDREW M. KUNASEK, MARY )
ROSE WILCOX, and MAX WILSON, as )
duly elected and appointed ) MEMORANDUM DECISION
members of the Maricopa County ) (Not for Publication,
Board of Supervisors who are ) Ariz. R. Sup. Ct. 111)
named solely in their official )
capacity; HELEN PURCELL, the )
duly elected Maricopa County )
Recorder who is named solely in )
her official capacity; and KAREN )
OSBORNE, the duly appointed )
Maricopa County Director of )
Elections who is named solely in )
her official capacity, )
)
Respondents. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Paul A. Katz, Judge
AFFIRMED
MUELLER & DRURY, P.C. Scottsdale
by Douglas V. Drury
Attorney for Petitioners Rawles
GAMMAGE & BURNHAM, P.L.C. Phoenix
by Lisa T. Hauser
and Leonard W. Aragon
Attorneys for Respondent Kavanaugh
CITY OF MESA ATTORNEY’S OFFICE Mesa
by Deborah J. Spinner, City Attorney
Attorney for Respondent Barbara Jones
RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
by Bruce P. White, Deputy County Attorney
and Jill M. Kennedy, Deputy County Attorney
Attorneys for Respondents Brock, Stapley,
Kunasek, Wilcox, Wilson, Purcell, and Osborne
B E R C H, Justice
¶1 Respondent-Appellant Dennis Kavanaugh seeks review of
the superior court’s judgment that the term-limits provision in
the Mesa City Charter prohibits him from seeking an additional
term as a City Councilmember. Kavanaugh asserts that the
superior court erred in applying the two-term limitation to
prevent him from seeking a third term because his two terms as a
Councilmember were served in different positions. Kavanaugh
also argues that the claims of Petitioners Tom and Linda Rawles
should be barred by laches. Because of time constraints in this
accelerated election appeal, we previously issued an order
vacating an existing stay order and affirming the superior
court’s order enjoining the printing of electoral ballots
containing Kavanaugh’s name as a candidate for the Mesa City
Council. We stated that a written decision would follow
explaining this court’s ruling. This is that decision.
FACTS AND PROCEDURAL HISTORY
¶2 In 1996, Dennis Kavanaugh was elected in an “at-large”
election to serve on the Mesa City Council for a four-year term.
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Under the “at-large” system, all municipal electors were
eligible to vote for all six City Councilmembers. Each
prevailing candidate served a four-year term as Councilmember
representing the entire city. In 1998, the Mesa City Charter
was amended to divide the city into six geographic districts,
each of which elected its own District Councilmember. Under the
new system, an elector may vote only for candidates from the
elector’s home district. In the first election under the
amended system in 2000, Kavanaugh was elected the District 3
Councilmember.
¶3 The Mesa City Charter has contained a term-limits
provision for City Councilmembers since 1967. That provision
prohibits any person from serving as a “Councilmember for more
than two (2) consecutive four- (4-) year terms.” Kavanaugh’s
term as the District’s Councilmember expires this year. After
receiving advice from the Mesa City Attorney that the term-
limits provision did not prevent him from serving an additional
term, Kavanaugh completed the required petitions and submitted
them on December 8, 2003.
¶4 On December 22, 2003, Tom Rawles, the only other
candidate for District 3 Councilmember, and his wife, Linda,
filed a petition in superior court pursuant to Arizona Revised
Statutes (“A.R.S.”) section 16-351(B) (Supp. 2003) challenging
Kavanaugh’s candidacy. The petition alleged that Kavanaugh had
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already served two terms as a Councilmember and was thus
ineligible to seek a third term. In response, Kavanaugh claimed
that because the Rawleses delayed in seeking relief, their
action was barred by the doctrine of laches. Kavanaugh also
asserted that Mesa’s term-limits provision did not prohibit him
from serving an additional term because he had only served one
term as a “District Councilmember,” the other term having been
served as a “Councilmember at-large.”
¶5 The superior court found that both “at-large
Councilmembers” and “District Councilmembers” served as
“Councilmembers” as that term was used in the term-limits
provision. The court also found that both parties acted in good
faith and there was no undue delay, and therefore rejected
Kavanaugh’s laches defense. The court entered judgment
enjoining the City from listing Kavanaugh as a candidate on the
ballots for the upcoming City Council election. Kavanaugh filed
a timely appeal.
DISCUSSION
A. Standard of Review
¶6 In an appeal from a declaratory judgment action
brought in the superior court, the reviewing court must defer to
the trial court’s findings of fact, but is not bound by the
trial court’s conclusions of law. Motel 6 Operating Ltd. P’ship
v. City of Flagstaff, 195 Ariz. 569, 570-71, ¶ 7, 991 P.2d 272,
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273-74 (App. 1999). The parties agreed that there were no
issues of fact in dispute. Accordingly, we move directly to the
trial court’s legal determinations, which we review de novo.
Id. at 571, 991 P.2d at 274.
B. Merits1
1. Term-Limits Provision
¶7 Kavanaugh appeals the superior court’s judgment that
the Mesa City Charter’s term-limits provision precludes his bid
for reelection as District 3 Councilmember. He asserts that the
provision does not apply to this case because he has only served
a single term as a “District Councilmember.” We disagree with
his analysis.
¶8 Section 201(E) of the Mesa City Charter provides that
“[n]o person shall be eligible to be elected to the office of
Councilmember for more than two (2) consecutive four- (4-) year
terms.” Because we indulge “a presumption in favor of the
eligibility” of candidates, see McCarthy v. State ex rel.
Harless, 55 Ariz. 328, 335, 101 P.2d 449, 451 (1940), we view
1
In the original action before Judge Paul A. Katz,
Kavanaugh contested the court’s jurisdiction to hear the
dispute, alleging that the Mesa City Charter provided its City
Council with original jurisdiction over candidate-qualification
disputes. Judge Katz rejected Kavanaugh’s argument, holding
that the superior court was an appropriate venue and had
jurisdiction under A.R.S. § 16-351. Kavanaugh expressly
declined to appeal Judge Katz’s ruling on this issue.
Consequently, we do not consider the issue of jurisdiction in
this decision.
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narrowly such limits on a candidate’s ability to serve. Id. at
334-35, 101 P.2d at 451 (noting that we should read restrictions
so as not to “impair[] the right of the people to select
officers of their own choosing”).
¶9 Nonetheless, we interpret statutes, rules and charter
provisions according to their plain language, giving “full
effect to the intent of the lawmaker.” Adams v. Bolin, 74 Ariz.
269, 276, 247 P.2d 617, 621 (1952). The word “Councilmember” in
the 1967 term-limits provision does not distinguish between
district and at-large members. It appears to refer to all
individuals who serve as members of the City Council.
¶10 Kavanaugh contends, however, that the language change
in the City Charter following the 1998 amendments renders “at-
large Councilmember” and “DISTRICT Councilmember” two distinct
positions. Kavanaugh notes that the 1998 amendments changed the
language of Section 201(A) from “[t]here shall be a City Council
consisting of a Mayor and six (6) other Councilmembers” to its
current version: “There shall be a City Council consisting of a
Mayor and six (6) other DISTRICT Councilmembers.” (Emphasis in
original.) Thus, Kavanaugh asserts that “the two-term-
limitation only applies prospectively to the newly created
District Councilmembers.”
¶11 Kavanaugh’s argument is undercut not only by the plain
language of the term-limits provision, but also by the practical
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effect that such a rigid construction would have on the term-
limits rule. If adopted, the argument that the position of
“District Councilmember” is distinct from that of an “at-large
Councilmember” would eviscerate the term-limits rule. By that
reasoning, if council boundaries shifted, a Councilmember would
hold a new district position, one not subject to the term-limits
rule. Nor under this reasoning would Kavanaugh be barred from
serving a third or fourth term as a Councilmember if he moved
from District 3 to another district. Indeed, because the City
has recently changed to district representation, Kavanaugh’s
interpretation would mean that the term-limits provision applies
to no one for this election cycle. Moreover, if the position of
“District Councilmember” is separate and distinct from the
position of “Councilmember,” the former would appear not to be
bound at all by Section 201(E)’s limitation on the terms of
“Councilmembers.” This could not have been the intent of the
drafters. The plain language of Section 201(E), that “[n]o
person shall be eligible to be elected to the office of
Councilmember for more than two (2) consecutive four- (4-) year
terms,” must be construed to mean what it says.
¶12 Additionally, we note that despite the fact that
Kavanaugh originally served as an “at-large Councilmember”
before becoming a “District Councilmember,” he does the same job
and represents many of the same constituents he represented
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before. This is not a “new” or “distinct” public office.
Rather, it appears that the 1998 amendments merely added the
term “District” to the position title to highlight that future
Councilmembers would be elected from districts rather than
serving at-large.
¶13 We therefore conclude that Section 201(E) of the Mesa
City Charter should be read to limit the ability of all
Councilmembers to exceed the term-limits rule. This view is
consistent both with a reading of the Charter as a whole and
with an existing Attorney General Opinion that redistricting
should not be permitted to circumvent term limits. See Op.
Ariz. Att’y Gen. I01-019 (noting that term limits reduce the
advantages of incumbency, a purpose that is hindered if a
redistricting process allows an incumbent to run for an
additional term).2
2. Laches
¶14 Kavanaugh asserts that the Rawleses’ claim should be
barred by the doctrine of laches because they failed to
challenge Kavanaugh’s candidacy in a timely manner. We
2
Kavanaugh attempts to distinguish his case by noting
that his situation is not one of redistricting, but rather
“districting” for the first time. This distinction is not
compelling, as the overriding issue remains whether a candidate
can exceed a term-limits rule simply by changing constituencies
or having his constituency changed. In both situations -
redistricting and districting - the candidate is alleging that
his term limits are not implicated since he now represents a
different constituency.
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disagree.
¶15 The defense of laches is available in election
disputes. See, e.g., Mathieu v. Mahoney, 174 Ariz. 456, 459,
851 P.2d 81, 84 (1993) (noting that the “concern with timeliness
stems in part from the notion that ‘disputes concerning election
and petition matters must be initiated and heard in time to
prepare the ballots for absentee voting to avoid rendering an
action moot’”) (quoting Kromko v. Superior Court, 168 Ariz. 51,
57, 811 P.2d 12, 18 (1991)). The current case raises concerns
similar to those in Mathieu because it, too, was brought on the
eve of ballot preparation.
¶16 However, the facts of Mathieu differ with respect to
both the extent of and the purpose for the delay in bringing the
action. In Mathieu, the petitioners did not file an action
until more than a year after learning of a group’s intent to
have an initiative placed on the ballot. Id. at 459, 851 P.2d
at 84. The evidence in the current case is that the Rawleses
filed their action within ten days after Kavanaugh qualified for
the ballot, as required by A.R.S. § 16-351.
¶17 Kavanaugh argues that the Rawleses should have brought
this action long before December 22, 2003, the date this case
was filed. He points to evidence that Tom Rawles knew no later
than October 22, 2003, of Kavanaugh’s interest in seeking an
additional term. We note, however, that Kavanaugh did not
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become an official candidate until he submitted his petitions on
December 8, 2003, the last day for submitting candidacy
petitions. Thus any claim before December 8, 2003 would
arguably not have been ripe. See Winkle v. City of Tucson, 190
Ariz. 413, 415, 949 P.2d 502, 504 (1997) (“The ripeness doctrine
prevents a court from rendering a premature judgment or opinion
on a situation that may never occur.”). Only two weeks passed
between the time that the Rawleses’ action ripened and the time
they filed this action. Consequently, we agree with the trial
court’s determination that both parties acted in good faith and
affirm the court’s conclusion that the doctrine of laches does
not apply.
CONCLUSION
¶18 We affirm the decision of the superior court that the
name of Councilmember Kavanaugh shall not appear on the 2004
District 3 ballot for the City of Mesa, Arizona.
__________________________________
Rebecca White Berch, Justice
CONCURRING:
________________________________________
Charles E. Jones, Chief Justice
________________________________________
Ruth V. McGregor, Vice Chief Justice
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________________________________________
Michael D. Ryan, Justice
________________________________________
Andrew D. Hurwitz, Justice
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