Kristopher M Sippel v. Elliott E Fisher ( 2005 )

SUPREME COURT OF ARIZONA
En Banc
KRISTOFER M. SIPPEL, ) Arizona Supreme Court
) No. CV-05-0004-AP/EL
Plaintiff/Appellee, )
) Pinal County
v. ) Superior Court
) No. CV-200401483
ELLIOTT E. FISHER, )
)
Defendant/Appellant, ) MEMORANDUM DECISION
)
and ) (Not for publication
) Ariz. R. Sup. Ct. 111)
LAURA DEAN-LYTLE, LIONEL RUIZ, )
SANDIE SMITH, JIMMIE KERR, and )
KATHY CONNELLY, )
)
Defendants/Appellees. )
__________________________________)
Appeal from the Superior Court in Pinal County
The Honorable Janna L. Vanderpool, Judge
AFFIRMED
Kristofer M. Sippel Apache Junction
Plaintiff/Appellee, pro se
Elliott E. Fisher Apache Junction
Defendant/Appellant, pro se
ROBERT CARTER OLSON, PINAL COUNTY ATTORNEY Florence
by William H. McLean, Chief Civil Deputy County Attorney
and Chris M. Roll, Deputy County Attorney
Attorneys for Defendants/Appellees
Dean-Lytle, Ruiz, Smith, and Kerr
RICHARD JOEL STERN, APACHE JUNCTION
CITY ATTORNEY Apache Junction
Attorneys for Defendant/Appellee Connelly
B E R C H , Justice
¶1 This case involves a challenge by Kristofer M. Sippel to
the nomination petitions filed by Elliott E. Fisher for the
position of Mayor of the City of Apache Junction. Fisher contends
that the trial court erred in holding that several signatures on
his petitions were not valid, leaving him with insufficient
signatures to qualify for a place on the ballot. Fisher appealed
the superior court’s ruling on several grounds. Because of the
time constraints in this accelerated election appeal, we
previously issued an order affirming the judgment of the superior
court set forth in its signed Minute Entry. We stated that a
written decision would follow explaining this court’s ruling.
This is that decision.
FACTS AND PROCEDURAL HISTORY
¶2 On December 8, 2004, Fisher filed his nominating
petitions to run for the office of Mayor of Apache Junction. He
turned in eight petitions containing a total of 109 signatures.
To qualify for the ballot, Fisher needed a minimum of 101
signatures from qualified electors. Thus, Fisher submitted eight
signatures more than the minimum necessary to qualify for the
ballot.
¶3 On December 17, 2004, Sippel, an Apache Junction City
Council Member, challenged twenty-two signatures on Fisher’s
nominating petitions, pursuant to Arizona Revised Statutes
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(“A.R.S.”) § 16-351 (Supp. 2004). Sippel alleged that, without
these signatures, Fisher did not qualify as a candidate for the
primary race to be held on March 8, 2005. Sippel’s motion to
challenge Fisher’s nominating petitions included an affidavit from
fellow Apache Junction City Council Member David Waldron, which
listed the twenty-two allegedly invalid signatures.
¶4 Pinal County Superior Court Judge Janna L. Vanderpool
held a hearing on December 27, 2004, to address Sippel’s
allegations. Sippel and Fisher attended the hearing, as did Pinal
County Recorder Laura Dean-Lytle, and Apache Junction City Clerk
Kathy Connelly. Both Dean-Lytle and Connelly testified regarding
the election process and requirements for the city election.
Dean-Lytle further testified that, of the twenty-two signatures
Sippel challenged, only six were valid, leaving sixteen invalid
signatures. Fisher cross-examined Dean-Lytle and Connelly, but,
despite having received notice of the hearing, did not call any
qualified witnesses of his own.
¶5 The judge found that sixteen signers of Fisher’s
nominating petitions were not qualified voters in Apache Junction,
leaving Fisher with only ninety-three valid signatures. The judge
therefore concluded that Fisher failed to produce a sufficient
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number of valid signatures to qualify for the primary ballot.1
Fisher filed a timely appeal.
DISCUSSION
A. Standard of Review
¶6 Actions challenging signatures on a nominating petition
pursuant to A.R.S. § 16-351 are much like motions for injunctive
relief. See Mandraes v. Hungerford, 127 Ariz. 585, 587, 623 P.2d
15, 17 (1981). This court reviews a trial court’s decision to
grant or deny a motion for injunctive relief for abuse of
discretion, Valley Med. Specialists v. Farber, 194 Ariz. 363, 366,
¶ 9, 982 P.2d 1277, 1280 (1999), reviews its factual findings for
clear error, id., and reviews its legal conclusions de novo, Open
Primary Elections Now v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d
649, 652 (1998).
B. Sufficiency of the Evidence
¶7 The primary issue in this case is whether Fisher’s
nominating petitions contained a sufficient number of valid
signatures to qualify Fisher to run for mayor in the city’s March
2005 primary election. Fisher claims that Sippel failed to prove
by clear and convincing evidence that sixteen of the challenged
signatures were invalid. See Blaine v. McSpadden, 111 Ariz. 147,
149, 526 P.2d 390, 392 (1974) (requiring clear and convincing
1
In future election cases, the trial judge’s minute entry
should clearly reflect that findings were made upon clear and
convincing evidence.
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evidence). Fisher argues that the evidence was insufficient
because Waldron’s notarized affidavit was not an official
document,2 and because the affidavit erroneously stated that
twenty-two signatures were invalid, when in fact only sixteen were
invalid.
¶8 Sippel’s case did not rely solely on Waldron’s
affidavit, however. In addition, Sippel presented the
uncontroverted testimony of Pinal County Recorder Dean-Lytle,
which clearly established that sixteen of Fisher’s signatures were
from individuals who could not vote in the city’s mayoral contest.
Fisher failed to rebut that evidence. Thus the trial judge did
not clearly err in finding that clear and convincing evidence
demonstrated that Fisher’s petition lacked sufficient valid
signatures.
¶9 Fisher did not present any witnesses or provide other
evidence to rebut Sippel’s evidence that those sixteen signatures
were invalid. On appeal, Fisher argues that the judge erred in
not allowing him to call any witnesses. The record shows,
however, that Fisher neither subpoenaed any witnesses for the
scheduled hearing nor made an offer of proof establishing that the
witnesses he wished to call would provide any relevant testimony.
Moreover, regarding the persons whose signatures were challenged,
2
See infra § C, Pleadings Requirements (discussing the
sufficiency of Sippel’s motion).
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the judge concluded that even if they testified as to their good-
faith belief that they were qualified voters in Apache Junction,
such evidence would not effectively rebut the evidence that they
were not qualified, because the statute defines a registered voter
as one whose name appears on the county voter registration list.
A.R.S. § 16-161 (1996); see A.R.S. § 16-351(E) (Supp. 2004)
(stating that the county voter register “shall constitute the
official record to be used to determine” whether a signer is a
qualified elector). For that reason, and because December 27th
was the scheduled hearing date, the judge denied Fisher’s request
to postpone the hearing so that he could subpoena those sixteen
individuals.
¶10 At the hearing, Fisher also sought to call William
O’Neil, the presiding judge of Pinal County Superior Court, to
testify about a 1997 election case involving Fisher, over which
Judge O’Neil presided. Judge Vanderpool correctly concluded that
the testimony regarding an eight-year-old case involving a
different election cycle would shed no light on whether the
challenged signatures on Fisher’s nominating petitions for the
2005 election were valid.
¶11 Thus, Judge Vanderpool did not abuse her discretion in
denying Fisher’s request to call these witnesses. The judge
appropriately weighed the evidence presented at the hearing and
found that Sippel had proven by clear and convincing evidence that
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Fisher did not have sufficient signatures on his nominating
petitions to qualify for the primary ballot.
C. Pleadings Requirements
¶12 Fisher also argues that Sippel’s motion challenging
Fisher’s nominating petitions failed to meet the statutory
requirements of A.R.S. § 16-351(A). He claims that Waldron’s
affidavit provided an insufficient basis to challenge his
nominating petitions under A.R.S. § 16-351 and that Sippel failed
to attach an official voter registration document from the county
recorder.
¶13 Section 16-351(A) sets forth the requirements for
challenging a candidate’s nominating petitions. It requires a
challenger to “specify in the action the petition number, line
number and basis for the challenge for each signature being
challenged.” Id. The affidavit submitted with Sippel’s motion
carefully spells out Fisher’s petition number, the line number,
the signer’s name, and the basis for each of Sippel’s challenges.
The statute does not require the challenger to attach certified
documents from the county recorder regarding the invalidity of the
challenged signatures, as Fisher argues Sippel should have done,
or cite the statutory basis for the challenge. Thus the trial
judge did not err in ruling that Sippel’s motion satisfied the
statutory requirements.
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D. Statements of the Deputy County Attorney
¶14 Fisher further alleges that Judge Vanderpool abused her
discretion by allowing the Deputy Pinal County Attorney to argue
on behalf of Sippel. Fisher complains that during the December
27th hearing, the judge twice allowed Deputy County Attorney
William McLean “to speak for the Appellee Sippel.” In the first
instance, McLean objected to Fisher’s cross-examination of Pinal
County Recorder Dean-Lytle on the ground that Fisher was badgering
the witness. The record shows that on that occasion McLean was
not speaking on behalf of Sippel, but rather was attempting to
protect his client from aggressive questioning. In the second
instance, McLean addressed the court regarding the issue at hand.
He stated that he was not “argu[ing] either for Mr. Sippel or for
Mr. Fisher.” Because the county is a named party to the action,
it was appropriate for McLean to represent the county and make
arguments on behalf of his client. Judge Vanderpool did not abuse
her discretion in allowing him to speak.
E. Denial of Fisher’s Motion to Dismiss
¶15 Fisher next complains that the trial judge erred in
denying his motion to dismiss Sippel’s action. But Fisher’s
motion to dismiss provides no legal basis for dismissing Sippel’s
action. Fisher’s motion asserts that Sippel was “impetuous” in
filing his petition, that Sippel failed to cite the statute under
which he brought his action, that he improperly took four days to
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file his challenge, and that he made spelling mistakes in his
motion. Fisher failed to develop any legal argument justifying
dismissal of Sippel’s action, and thus the judge acted within her
discretion in denying his motion.3
¶16 Arizona is a notice pleading state. See Ariz. R. Civ.
P. 8(a). Arizona courts do not dismiss actions for misspellings
or for failure to cite statutes if citation is not required by
law. Section 16-351(A), the statute underlying this action, does
not require citation. As long as actions are timely filed and
state a claim, they will not be dismissed for having been filed
impetuously. Thus, because Sippel filed his action within the
period allowed by law, stated a claim, and met statutory
requirements, the court did not err in denying Fisher’s motion to
dismiss.
F. Judge Vanderpool’s Impartiality
¶17 Fisher alleges that the trial judge violated Arizona
Supreme Court Rule 81, the Arizona Code of Judicial Conduct,
because she was not impartial in this proceeding. To the
contrary, the record shows that Judge Vanderpool was judicious and
patient with Fisher, who appeared pro se. She explained
procedures and rules of evidence to him, protecting his due
3
Fisher did not file an answer to Sippel’s motion. His motion
to dismiss, however, does not properly fit into any of the Rule
12(b) categories. See Ariz. R. Civ. P. 12(b). For this reason as
well, the trial judge acted appropriately in dismissing Fisher’s
motion.
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process rights, and occasionally allowing him to speak out of
turn. Indeed, the record shows that the trial judge attempted to
ensure that Fisher received a fair hearing. Thus, Fisher has not
met his burden of establishing a violation of Rule 81.
G. Irreparable Harm
¶18 Fisher claims that Sippel “cannot show irreparable
harm.” The statute, however, does not require a showing of
irreparable harm for a challenge to a nominating petition. See
A.R.S. § 16-351. The judge, therefore, did not err in not
requiring such a showing.
H. Laches
¶19 Fisher claims that Sippel’s motion should be barred by
the doctrine of laches because Sippel waited four days after
Fisher filed his nominating petitions before challenging the
signatures on them. A challenge may be filed up to ten days after
the final day for filing petitions has passed. A.R.S. § 16-
351(A). Sippel therefore acted in accordance with the statute and
did not unnecessarily or prejudicially delay in filing his
challenge. The trial judge did not abuse her discretion in
finding that the action was not barred by laches.
CONCLUSION
¶20 We affirm the ruling of the trial court that Sippel has
proved by clear and convincing evidence that Fisher’s nominating
petitions did not contain a sufficient number of valid signatures
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to qualify Fisher for the Apache Junction mayoral primary race to
be held on March 8, 2005. We also affirm the trial court’s ruling
denying Fisher’s motion to dismiss. The judgment of the trial
court is affirmed.
_______________________________
Rebecca White Berch, Justice
CONCURRING:
______________________________________
Charles E. Jones, Chief Justice
______________________________________
Ruth V. McGregor, Vice Chief Justice
______________________________________
Michael D. Ryan, Justice
______________________________________
Andrew D. Hurwitz, Justice
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