Parker, Springer Jr., Anderson v. Committee for Sustainable Retirement in Support of Initiative

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
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,
PARKER v. CITY OF TUCSON
Opinion of the Court
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
Filed November 19, 2013
Appeal from the Superior Court in Pima County
No. C20134029
The Honorable James E. Marner, Judge
REVERSED AND REMANDED
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PARKER v. CITY OF TUCSON
Opinion of the Court
COUNSEL
Coppersmith Schermer & Brockelman PLC, Phoenix
By Andrew S. Gordon, Roopali H. Desai, John C. Kelly,
and Melissa A. Soliz
Counsel for Plaintiffs/Appellants/Cross-Appellees
Gammage & Burnham P.L.L.C., Phoenix
By Lisa T. Hauser and Christopher L. Hering
Counsel for Real Party in Interest/Appellee/Cross-Appellant
OPINION
Presiding Judge Vásquez authored the opinion of the Court, in which
Chief Judge Howard and Judge Kelly concurred.
V Á S Q U E Z, 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
1Although Parker and Anderson are “currently employed by the
City of Tucson,” Springer is not.
2The Employees’ complaint also named as defendants the City of
Tucson, the Mayor and City Clerk of the City of Tucson, the Pima
County Recorder, and members of the Tucson City Council and Pima
County Board of Supervisors. Those entities and individuals are not
parties to this appeal.
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PARKER v. CITY OF TUCSON
Opinion of the Court
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. See A.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
3In its August 16, 2013 order, the trial court found certain
petition sheets and signatures invalid and enjoined the defendants
from placing the Initiative on the ballot until the parties performed
various tasks and satisfied certain conditions set forth in the order. The
Committee appealed that ruling and the Employees filed a notice of
cross-appeal. This court stayed that appeal and revested jurisdiction in
the trial court so that it could enter a final order in the case, which it
did on September 3; the current appeal and cross-appeal have been
taken from that ruling. Pursuant to the parties’ stipulation, we
dismissed the initial cross-appeal on August 28 and dismissed the
initial appeal as moot on September 18.
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PARKER v. CITY OF TUCSON
Opinion of the Court
transmitted to the Pima County Recorder for verification, in order to
place the Initiative on the City’s November 5, 2013 ballot.4
¶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
4The provisions of A.R.S. § 19-101 and related statutes, including
A.R.S. § 19-121.01(A), “shall apply to the legislation of cities, . . . [and]
duties required of the secretary of state as to state legislation shall be
performed in connection with such legislation by the city or town clerk
. . . [or] officer in charge of elections.” A.R.S. § 19-141(A). Section 19-
121.01(A) provides that the city clerk has twenty business days to
complete a facial review of the petitions submitted to determine the
number of petition signatures “eligible for verification.” Section 19-
121.01(A)(1) requires the removal of petition sheets with a missing or
incomplete circulator affidavit or if circulated by an individual
prohibited from circulating petitions based on conviction of petition
signature fraud. If a petition contains a missing signature, address, or
date, § 19-121.01(A)(3) requires the removal of signatures. Section 19-
121.01(A)(6) requires the city clerk to determine and issue a receipt for
the number of signatures deemed “eligible for verification.” And, § 19-
121.01(B) and (C) prescribe the process through which selection is
made at random five percent of the total signatures and copies of
petitions bearing those signatures are transmitted to the county
recorder for verification. Finally, A.R.S. § 19-121.02 prescribes the
review process and deadline for the county recorder.
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PARKER v. CITY OF TUCSON
Opinion of the Court
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
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PARKER v. CITY OF TUCSON
Opinion of the Court
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.
See Ariz. 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, 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.
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PARKER v. CITY OF TUCSON
Opinion of the Court
¶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 of voting rights,” the court erred by (1) “fail[ing] to shift the
burden of production to [the Committee] to prove restoration of civil
rights once [the Employees] demonstrated that Coombes, Oberg, and
Leonardi were convicted felons,” and, (2) requiring the Employees to
meet that burden with clear and convincing evidence rather than a
preponderance of the evidence.
¶11 We review a trial court’s decision on a request for
injunctive or mandamus relief under § 19-122 for an abuse of
discretion. Harris v. City of Bisbee, 219 Ariz. 36, ¶ 13, 192 P.3d 162, 165
(App. 2008). An abuse of discretion includes an error of law. City of
Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 58, 181 P.3d 219,
236 (App. 2008). We review de novo the legal question of whether the
court applied the proper burden of proof. Am. Pepper Supply Co. v. Fed.
Ins. Co., 208 Ariz. 307, ¶ 8, 93 P.3d 507, 509 (2004). And when, as here,
an issue involves the interpretation of a statute, it is a question of law
we review de novo. Harris, 219 Ariz. 36, ¶ 13, 192 P.3d at 165-66; see
also Open Primary Elections Now v. Bayless, 193 Ariz. 43, ¶ 9, 969 P.2d
649, 652 (1998); State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120,
¶ 5, 3 P.3d 1040, 1042 (App. 1999).
¶12 Our primary purpose in interpreting a statute is to give
effect to the legislature’s intent. See Sierra Tucson, Inc. v. Lee, 230 Ariz.
255, ¶ 9, 282 P.3d 1275, 1278 (App. 2012). Because the plain language of
a statute is the best reflection of that intent, when a statute is clear and
unambiguous we need look no further than the statute’s terms to
determine its meaning and do not employ other principles of statutory
construction. Id.; see also In re Wilputte S., 209 Ariz. 318, ¶ 10, 100 P.3d
929, 931 (App. 2004). And, “we assume that when the legislature uses
different language within a statutory scheme, it does so with the intent
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PARKER v. CITY OF TUCSON
Opinion of the Court
of ascribing different meanings and consequences to that language.”
Comm. for Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 247, ¶ 8,
141 P.3d 422, 424-25 (App. 2006).
¶13 The same principles of construction apply when
interpreting provisions of Arizona’s constitution. Thus, our goal is “to
effectuate the intent of those who framed the provision.” Jett v. City of
Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). If the language of a
provision of the constitution is “unambiguous, we generally must
follow the text as written.” Tumacacori Mission Land Dev., Ltd. v. Union
Pac. R.R. Co., 228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App. 2011). When
the words are plain and clear, “‘judicial construction is neither
necessary nor proper,’ and we will not consider any extrinsic matter
supporting a construction that would vary the provision’s apparent
meaning.” Id., quoting Jett, 180 Ariz. at 119, 882 P.2d at 430.
¶14 In addition to these basic principles of construction and
review, we are equally mindful of special principles regarding the
interpretation and application of the portions of the Arizona
Constitution and statutes pertaining to initiatives and the initiative
process. See Ariz. Const. art. IV, pt. 1, § 1(1), (2). “Arizona has a strong
policy [of] supporting the people’s exercise of” the power granted to
them by the constitution “to propose laws through initiative process.”
Pedersen v. Bennett, 230 Ariz. 556, ¶ 7, 288 P.3d 760, 762 (2012). Thus,
“courts liberally construe initiative requirements and do not interfere
with the people’s right to initiate laws ‘unless the Constitution
expressly and explicitly makes any departure [from initiative filing
requirements] fatal.’” Id., quoting Kromko v. Superior Court, 168 Ariz. 51,
58, 811 P.2d 12, 19 (1991) (alteration in Pedersen).
¶15 Because of these underlying policies, “once initiative
petitions are circulated, signed and filed, they are presumed valid.”
Harris v. Purcell, 193 Ariz. 409, ¶ 15, 973 P.2d 1166, 1169 (1998). Thus,
although § 19-122(C) expressly authorizes a citizen to bring an action
challenging the legal sufficiency of an initiative petition and/or
signatures, in interpreting the requirements imposed by the
constitution or a statute, “courts must exercise restraint before
imposing unreasonable restrictions on the people’s legislative
authority.” Kromko, 168 Ariz. at 57, 811 P.2d at 18. “The term ‘legal
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Opinion of the Court
sufficiency,’ as used in § 19-122(C), requires substantial, not necessarily
technical, compliance with the requirements of the law.” Id. at 58, 811
P.2d at 19 (citations omitted); see also Feldmeier v. Watson, 211 Ariz. 444,
¶ 14, 123 P.3d 180, 183 (2005) (test for initiatives, unlike referenda, is
whether petition substantially complies with requirements of
constitution and statute). “Courts may remove a measure from the
ballot only ‘when it appears affirmatively the constitutional and
statutory rules in regard to the manner in which initiative . . . petitions
should be submitted have been so far violated that there has been no
substantial compliance therewith . . . .’” Kromko, 168 Ariz. at 58, 811
P.2d at 19, quoting Iman v. Bolin, 98 Ariz. 358, 366, 404 P.2d 705, 710
(1965) (alterations in Kromko). With all of these principles in mind, we
now turn to the statutes and provisions of the constitution implicated
here.
¶16 Section 19-114, A.R.S., which disqualifies certain
individuals from serving as petition circulators, provides in subsection
(A), “no person other than a person who is qualified to register to vote
pursuant to [A.R.S.] § 16-101 may circulate an initiative or referendum
petition and all signatures verified by any such person shall be void
and shall not be counted in determining the legal sufficiency of the
petition.” See also Tucson City Code §§ 12-54(b), 12-58(a)(1). Section 16-
101 sets forth the criteria that qualify a person to register to vote,
providing in subsection (A)(5) that a person is qualified if he or she
“[h]as not been convicted of . . . a felony, unless restored to civil
rights.” The parallel provision in the Arizona Constitution expressly
disqualifies certain persons from serving as an elector, stating, “nor
shall any person convicted of . . . [a] felony, be qualified to vote at any
election unless restored to civil rights.” Ariz. Const. art. VII, § 2(C). “A
person is presumed to be properly registered to vote [in Arizona] on
completion of a registration form as prescribed by [A.R.S.] § 16-152,”
but that presumption may be rebutted by clear and convincing
evidence. A.R.S. § 16-121.01.
¶17 Based on the plain language of § 16-101(A)(5), and article
VII, § 2(C) of the Arizona Constitution, a person is not qualified to
register to vote in Arizona if the person has been convicted of a felony,
unless his or her civil rights have been restored. See Rocking K Holdings,
Ltd. v. Pima Cnty., 170 Ariz. 134, 136, 822 P.2d 487, 489 (App. 1991).
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Opinion of the Court
Because there is nothing ambiguous or unclear about the statute or the
constitution, we “must follow the text as written.” Canon Sch. Dist. No.
50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994); see
also Jett, 180 Ariz. at 119, 882 P.2d at 430 (requiring court to follow plain
language of constitutional provisions unless terms ambiguous or
unclear). Section 19-114(A) specifies the person must be “qualified to
register to vote pursuant to § 16-101.” And § 16-101(A)(5), like article
VII, § 2(C) of the Arizona Constitution, could not be more clear: a
person who has been convicted of a felony is not qualified to register to
vote unless that person’s civil rights have been restored.
¶18 The Committee relies on A.R.S. § 13-912(A) in arguing a
literal application of the clear terms in § 16-101 would result in an
absurdity. Section 13-912 applies to first-time felony offenders and
provides for the automatic restoration of any civil rights “lost or
suspended by the conviction,” except the right to possess a gun or
firearm upon completion of the sentence or probation and payment of
any outstanding fines or restitution.5 See Rocking K Holdings, Ltd., 170
Ariz. at 136, 822 P.2d at 489 (§ 13-912 provides for automatic
restoration of rights of first-time felony offenders but inapplicable
when person convicted of more than one felony, even if convictions on
same occasion; other convicted felons must apply for restoration of
rights before eligible to circulate referendum petition). Section 13-
904(A), A.R.S., specifies the rights that are suspended upon conviction
of a felony, of which the right to vote is only one: the right to vote, the
right to hold public office of trust or profit, the right to serve as a juror,
and the right to possess a gun or other firearm.
¶19 The Committee contends that construing § 19-114(A) and
§ 16-101(A)(5) to mean restoration of all civil rights instead of
restoration of the right to vote only is contrary to the most “sensibl[e]”
interpretation of these statutes when they are considered together and
in context and “utterly eviscerates and defeats the Legislature’s goal of
automatically restoring a first-time felon’s right to vote,” as expressed
5Inorder to regain the right to possess a gun or firearm, a
convicted felon must apply for such restoration in the superior court in
the county where the conviction occurred. See A.R.S. §§ 13-905, 13-906.
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Opinion of the Court
in § 13-912(A). The Committee asks this court to disregard the plain
language of both § 19-114(A) and § 16-101(A)(5), as well as the Arizona
Constitution. The Committee argues, too, that although the restoration
statutes vary from state to state, if we were to construe Arizona’s
statutes in a manner consistent with its plain language, a person might
be eligible to register to vote in the state where his or her conviction
occurred but would be “disenfranchised in Arizona,” a result the
Committee characterizes as “absurd.”6
¶20 We find these arguments unpersuasive. As we stated
previously, when the legislature’s intent is reflected in plain and
unambiguous language, we need not and, indeed, should not employ
other principles of construction to determine the legislature’s intent.
See Winterbottom v. Ronan, 227 Ariz. 364, ¶ 5, 258 P.3d 182, 183-84 (App.
2011). We will not rewrite statutes to effectuate a meaning different
than the one the legislature intended. See State v. Gonzalez, 216 Ariz. 11,
¶ 10, 162 P.3d 650, 653 (App. 2007); see also State v. Tarango, 185 Ariz.
208, 210-11, 914 P.2d 1300, 1302-03 (1996) (courts must follow plain,
unambiguous text and may not “rewrite statutes”); State v. Patchin, 125
Ariz. 501, 502, 610 P.2d 1062, 1063 (App. 1980) (“[T]his court is not at
liberty to rewrite the statute under the guise of judicial
interpretation.”). The Committee is correct that we will not apply clear
terms of a statute literally if the result would be absurd. See
Winterbottom, 227 Ariz. 364, ¶ 5, 258 P.3d at 183 (“If the language of
those provisions is clear, [it is] the best indicator of the authors’ intent
and as a matter of judicial restraint we ‘must apply it without resorting
to other methods of statutory interpretation, unless application of the
plain meaning would lead to impossible or absurd results.’”), quoting
N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, ¶ 9, 93
P.3d 501, 503 (2004) (internal citation omitted); Reeves v. Barlow, 227
Ariz. 38, ¶ 12, 251 P.3d 417, 420 (App. 2011) (clear and unambiguous
language of statute normally conclusive evidence of meaning unless
there is express evidence of contrary legislative intent or application of
6Contrary to the Committee’s suggestion, this case does not
involve the issue whether the particular convicted felons are being
disenfranchised from eligibility to vote. Rather, here, we address only
whether they are qualified under Arizona law to circulate petitions.
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Opinion of the Court
such language results in impossible or absurd consequences). But we
disagree with the Committee’s contention that the results of applying
the terms “civil rights” literally to mean all civil rights, not just the
right to register to vote, would be absurd or nonsensical.
¶21 The Arizona legislature has imposed upon convicted
felons a standard for the restoration of the felon’s civil rights that is,
perhaps, more stringent than the standard imposed by other states in
requiring a convicted felon to have all civil rights restored before the
person may be eligible to register to vote and, consequently, eligible to
serve as a petition circulator. See Jean Chung, The Sentencing Project,
Felony Disenfranchisement: A Primer (June 2013), available at
http://sentencingproject.org/doc/publications/fd_Felony%20Disen
franchisement%20Primer.pdf. It is the legislature’s prerogative to
impose strict requirements for petition circulators. See generally Arizona
v. Inter Tribal Council of Ariz., Inc., ___ U.S. ___, ___, 133 S. Ct. 2247,
2257-58 (2013) (recognizing states have power to establish voting
requirements). And the legislature’s decision—as clearly evinced by
the plain language of the relevant statutes—cannot reasonably be
characterized as absurd.
¶22 Section 13-912(A), by its plain language, applies only to
first-time felony offenders whose convictions occurred in Arizona and,
with the exception of the right to possess firearms, “restore[s] any civil
rights” to those offenders. That the legislature has provided an
automatic restoration of certain civil rights for first-time felony
offenders under Arizona law does not make § 13-912(A) incompatible
with § 16-101(A)(5).7 Rather, it merely provides that those convicted of
multiple felonies in Arizona or whose convictions occurred in other
jurisdictions will not benefit from the narrow provision the legislature
has created for Arizona first-time offenders.
7We need not decide today whether the legislature’s requirement
that even first-time felony offenders must apply separately for the
restoration of the right to possess a gun or firearm renders the person
ineligible to register to vote in Arizona; that is not the issue in this case.
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¶23 Thus, we hold that in order to circulate initiative petitions
in Arizona, the circulator’s civil rights must have been restored by the
state in which he or she was convicted.8 Cf. State v. Prince, 226 Ariz.
516, ¶ 40, 250 P.3d 1145, 1159 (2011) (“A juror convicted of an out-of-
state felony whose civil rights have not been restored is disqualified
from jury service by [A.R.S.] § 21-201(3).”).
2. Employees’ Burden of Proof
¶24 The trial court preliminarily determined that the
Employees had the burden to prove by clear and convincing evidence
that the petition sheets and signatures were legally insufficient. See
Blaine v. McSpadden, 111 Ariz. 147, 149, 526 P.2d 390, 392 (1974). The
Employees contend they were only required to prove by a
preponderance of the evidence that Coombes, Oberg, and Leonardi
were not qualified to serve as petition circulators. They argue the
heightened standard in the election context only applies, pursuant to
§ 16-121.01, to rebut the presumption that a person who has completed
the registration form is properly registered to vote in Arizona. We
need not address this issue or the related question whether the court
erred in not shifting the burden to the Committee to establish the
circulators’ civil rights had been restored after the Employees
presented prima facie evidence that they had been convicted of a
felony, resulting in the suspension of those rights, and the absence of
evidence that those rights had been restored. Even assuming, without
deciding, the heightened standard of proof applies and the Employees
must demonstrate the circulators’ civil rights had not been restored,
they sustained that burden. The Employees presented clear and
convincing evidence that Coombes and Oberg had been convicted of
8We need not resolve the question whether a person with a
felony conviction in another state whose civil rights had been fully
restored except the right to own or possess weapons would be eligible
to serve as a petition circulator. Although the Committee insists the
only right that must be restored is the right to vote, it agrees that the
restoration of rights is determined by the law of the jurisdiction in
which the conviction occurred and the rights consequently were
suspended.
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Opinion of the Court
felonies and, although their rights to register to vote under the law of
the states where their convictions occurred were restored by operation
of law, the Employees demonstrated their remaining civil rights had
not been fully restored.9
3. Eligibility of Circulator Coombes
¶25 The record establishes and the trial court found that
Thomas Coombes had been convicted of “two drug-related felonies in
Orange County, California on July 25, 2000.”10 The court further found
Coombes had been sentenced to a sixteen-month prison term; the
Orange County Superior Court docket reflected the case had been
closed, “at the latest, on March 9, 2008”; and Coombes subsequently
had been convicted of misdemeanors. The court concluded that, based
9We further observe that the Committee plainly had superior
access to information about the restoration of the circulators’ civil
rights and chose to produce no such evidence. As the Employees point
out, there is support for the notion that a party with superior
knowledge about and access to evidence regarding certain facts should
bear the burden of producing that evidence, rather than charging the
adverse party with the task of proving a negative. See, e.g., Woerth v.
City of Flagstaff, 167 Ariz. 412, 419, 808 P.2d 297, 304 (App. 1990).
10The Committee asserts in its answering brief that it objected to
the use of uncertified court documents to establish these prior felony
convictions. But the Committee does not meaningfully develop an
argument in its answering brief or opening brief of its cross-appeal that
the admission of this evidence was error. Thus, the argument is
waived on appeal, and we view the evidence as properly admitted and,
consequently, the fact of the convictions essentially undisputed. See
Ariz. R. Civ. App. P. 13(a)(6) (brief shall contain arguments with
“citations to the authorities, statutes and parts of the record relied on”);
Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App.
2007) (finding issue waived on appeal because party mentioned it in
passing, cited no supporting legal authority, and failed to develop it
further); cf. State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982)
(noting majority rule “that if hearsay evidence is admitted without
objection, it becomes competent evidence admissible for all purposes”).
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Opinion of the Court
on California law, the passage of time, and the absence of evidence to
suggest Coombes still was on parole, he was eligible to register to vote
in California. Consequently, the court reasoned, he is eligible to
register to vote in Arizona for purposes of § 19-114(A) and § 16-
101(A)(5) and was qualified to circulate initiative petitions.
¶26 The parties do not dispute that under California law, the
civil rights of a person convicted of a felony are automatically
suspended. See generally Cal. Penal Code § 2600(a) (“A person
sentenced to imprisonment in a state prison . . . may during that period
of confinement be deprived of such rights, and only such rights, as is
reasonably related to legitimate penological interests.”); see also Cal.
Const. art. II, § 4 (requiring legislature to “prohibit improper practices
that affect elections and . . . provide for the disqualification of electors
while . . . imprisoned or on parole for the conviction of a felony”). The
California legislature has specified those rights that cannot be restored
in the absence of a full pardon. For example, a convicted felon “whose
civil rights have not been restored” is not eligible to serve on a jury.
Cal. Civ. Proc. Code § 203(a)(5). And without a general pardon, “[a]ny
person who has been convicted of a felony” is “disqualified from
holding office as a peace officer or being employed as a peace officer”
and is “disqualified from any office or employment by the state,
county, city, city and county or other political subdivision, . . . which
confers upon the holder or employee the powers and duties of a peace
officer.” Cal. Gov’t Code § 1029(a)(1). Similarly, under Cal. Gov’t
Code § 1029(c):
Any person who has been convicted of
a felony, other than a felony punishable by
death, . . . and who demonstrates the ability
to assist persons in programs of
rehabilitation may hold office and be
employed as a parole officer of the
Department of Corrections or the
Department of the Youth Authority, or as a
probation officer in a county probation
department, if he or she has been granted a
full and unconditional pardon . . . .
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PARKER v. CITY OF TUCSON
Opinion of the Court
¶27 Under California law, a convicted felon may seek
restoration of all civil rights suspended by a felony conviction by filing
a petition for rehabilitation and pardon in the court where the
conviction occurred. Cal. Penal Code § 4852.01. Subsection (a) of Cal.
Penal Code § 4852.01 provides:
Any person convicted of a felony who
has been released from a state prison or other
state penal institution or agency in
California, whether discharged on
completion of the term for which he or she
was sentenced or released on parole prior to
May 13, 1943, who has not been incarcerated
in a state prison or other state penal
institution or agency since his or her release
and who presents satisfactory evidence of a
three-year residence in this state immediately
prior to the filing of the petition for a
certificate of rehabilitation and pardon
provided for by this chapter, may file the
petition pursuant to the provisions of this
chapter.
If granted, the court’s recommendation is sent to the Governor of the
State of California for a full pardon. See Cal. Penal Code § 4852.13(a).
If the convicted felon obtains a full pardon, he or she is restored to a
variety of rights suspended by the conviction, including the right to
vote, Cal. Penal Code § 4852.17, the right to possess a firearm, under
certain circumstances, Cal. Penal Code § 4854, the right to apply for
licensing by the state’s various professional and occupational licensing
boards, Cal. Penal Code § 4853, the right to serve on a jury, Cal. Civ.
Proc. Code § 203(a)(5), and the right to apply for a position as a county
probation officer or state parole agent, Cal. Gov. Code § 1029(c). The
fact that a person’s right to vote under Cal. Elec. Code §§ 2201, 2212, or
even the right to hold public office, has been restored by operation of
law does not permit the inference that the person’s civil rights,
including the right to serve on a jury, have been fully restored. See
United States. v. Horodner, 91 F.3d 1317, 1319 (9th Cir. 1996) (noting that
“defendant’s civil rights were not substantially restored because he
17
PARKER v. CITY OF TUCSON
Opinion of the Court
was barred from serving on a jury, even though he could vote and hold
office”).
¶28 Additionally, Cal. Penal Code § 4852.17 states that various
agencies and courts are to receive notice of the certification of
rehabilitation and pardon, providing as follows:
Whenever a person is issued a
certificate of rehabilitation or granted a
pardon from the Governor under this
chapter, the fact shall be immediately
reported to the Department of Justice by the
court, Governor, officer, or governmental
agency by whose official action the certificate
is issued or the pardon granted. The
Department of Justice shall immediately
record the facts so reported on the former
criminal record of the person, and transmit
those facts to the Federal Bureau of
Investigation at Washington, D.C. When the
criminal record is thereafter reported by the
department, it shall also report the fact that
the person has received a certificate of
rehabilitation, or pardon, or both.
(Emphasis added.)
¶29 Don Vogel, a private investigator hired by the Employees,
testified about his investigation of certain circulators and their criminal
histories as reflected in various state records. With respect to
Coombes, Vogel testified that, after discovering Coombes had been
convicted of two felonies in July 2000, he attempted to find out if
Coombes’s civil rights had been restored in California. Vogel stated he
had “found no evidence that they were restored” and had checked the
“Orange County Superior Court docket for any information in the
original case or in any follow-up documents indicating that the process
had been started or completed.” Thus, after looking in precisely the
place where any pardon or certificate of rehabilitation would have
been, Vogel found no evidence that Coombes’s rights had been
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PARKER v. CITY OF TUCSON
Opinion of the Court
restored. This constitutes clear and convincing evidence that Coombes
is a convicted felon whose civil rights have not been fully restored. The
Employees therefore sustained their burden of establishing under any
standard of proof applicable in a civil proceeding that Coombes was
ineligible to circulate initiative petitions pursuant to § 19-114(A).
¶30 As we stated previously, statutory requirements for
initiatives must be liberally construed, and compliance need only be
substantial. See Pedersen, 230 Ariz. 556, ¶ 7, 288 P.3d at 762. Based on
the evidence introduced at the hearing, particularly Vogel’s testimony,
the Employees established a lack of substantial compliance with § 19-
114(A), § 16-101(A)(5), and article VII, § 2(C) of the Arizona
Constitution by showing Coombes was a convicted felon whose civil
rights had not been restored.11
4. Eligibility of Circulator Oberg
¶31 We reach the same conclusion with respect to Daryl
Oberg. Oberg pled guilty to one count of grand theft in Cuyahoga
County, Ohio, in 1994, and was sentenced to a one-year prison term;
that term was suspended pending Oberg’s completion of a two-year
term of probation and payment of restitution. The trial court
concluded Oberg was eligible to vote in Ohio because “his ability to
register as a voter was restored after completion” of his probationary
term and there had been a “significant passage of time since Mr.
Oberg’s conviction” and there was no evidence that “his file remains
open.”
11Because these statutes and the Arizona Constitution require
such specific criteria for convicted felons who wish to circulate
petitions, arguably the lack of compliance is, for all practical purposes,
expressly “fatal,” warranting technical and strict compliance rather
than mere substantial compliance. Pedersen, 230 Ariz. 556, ¶ 7, 288 P.3d
at 762. But, having established a lack of substantial compliance, the
Employees clearly showed the Committee did not satisfy the
requirements of the statutes and the constitution under a more
technical review and even the requirement of strict compliance.
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PARKER v. CITY OF TUCSON
Opinion of the Court
¶32 Under Ohio law, a person convicted of a felony “is
incompetent to be an elector or juror or to hold an office of honor, trust,
or profit.” Ohio Rev. Code Ann. § 2961.01(A)(1). Subsection (A)(2) of
that statute provides that a person whose civil rights have been
suspended because of a felony conviction is competent to be an elector
if “granted parole, judicial release, or a conditional pardon or is
released under a non-jail community control sanction or a post-release
control sanction.” A “full pardon” restores the remainder of the rights
and privileges specified in subsection (A)(1). Ohio Rev. Code Ann.
§ 2961.01(A)(2). So, too, does an order of expungement. See Ohio Rev.
Code Ann. § 2953.33(A) (providing expungement order restores “all
rights and privileges not otherwise restored by termination of the
sentence or community control sanction or by final release on parole or
post-release control”).
¶33 A full pardon or commutation must be sought pursuant to
Ohio Rev. Code Ann. § 2967.07. See also Ohio Rev. Code Ann.
§ 2967.01(B) (“‘Pardon’ means the remission of penalty by the governor
in accordance with the power vested in the governor by the
constitution.”). The governor may grant the pardon or commutation
“upon such conditions precedent or subsequent as the governor may
impose.” Ohio Rev. Code Ann. § 2967.04(A). An unconditional
pardon, which includes “a conditional pardon with respect to which all
conditions have been performed or have transpired,” also “relieves the
person to whom it is granted of all disabilities arising out of the
conviction or convictions from which it is granted.” Ohio Rev. Code
Ann. § 2967.04(B). Significantly, Ohio Rev. Code Ann. § 2967.04(A)
provides that a pardon or commutation does not take effect until the
convicted felon accepts any conditions, attested to by one witness who
shall go before the clerk of the court of
common pleas in whose office the sentence is
recorded and prove the signature of the
convict. The clerk shall thereupon record the
warrant, indorsement, and proof in the
journal of the court, which record, or a duly
certified transcript thereof, shall be evidence
of such pardon or commutation, the
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PARKER v. CITY OF TUCSON
Opinion of the Court
conditions thereof, and the acceptance of the
conditions.
¶34 Thus, if Oberg had sought or been granted a full pardon,
the pardon or application for pardon would have been in the record of
the court where his conviction occurred. See State ex rel. Gains v. Rossi,
716 N.E.2d 204, 207-08 (1999) (convicted felon’s right to hold public
office can be restored only through pardon or expungement processes
and is not automatically restored by “termination of sentence or
probation or by final release on parole”). Vogel investigated the
restoration of Oberg’s civil rights by asking the court in which the
conviction had occurred whether Oberg had applied for such a
restoration and was told the court had no information establishing his
civil rights had been restored. Had Oberg’s civil rights been fully
restored, Vogel would have found that information in the records of
the court of conviction. Thus, the evidence established a lack of
compliance with the requirements of § 19-114(A), § 16-101(A)(5), and
article VII, § 2(C) of the Arizona Constitution based on the evidence
that Oberg had been convicted of a felony and his civil rights had not
been restored.
¶35 For the foregoing reasons, we conclude the trial court
erred in finding that Coombes and Oberg were qualified to circulate
initiative petitions under Arizona law. Thus, pursuant to § 19-
121.01(A)(1)(g), the 2,978 signatures collected by Coombes and Oberg
are invalid. After subtracting those signatures and taking into account
the error rate provided by the Pima County Recorder, the Committee
falls far short of the 12,730 valid signatures required to place the
Initiative on the ballot.
5. Eligibility of Circulator Leonardi
¶36 Vogel testified, with respect to Josephine Leonardi, that
she had been convicted in Carroll County, Illinois, in 2001 of
possession of methamphetamine, a class-two felony. Vogel testified
further that he had investigated whether Leonardi’s civil rights had
been restored and, based on his communication with the rural county
in Illinois where the conviction had occurred, there was no such
information. But, for the reasons discussed below, because we reject
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PARKER v. CITY OF TUCSON
Opinion of the Court
the issues raised in the Committee’s cross-appeal, we need not address
whether, by operation of the law of Illinois, Leonardi’s civil rights,
including but not limited to her right to register to vote, were
restored.12 Even assuming the 476 signatures she collected were
properly considered, the Committee did not collect sufficient
signatures to qualify the Initiative for the ballot.
B. The Committee’s Cross-Appeal
¶37 In its cross-appeal13 from the trial court’s ruling, the
Committee argues: (1) there was no legal basis for the court to
12A person convicted of a felony “shall be ineligible to hold an
office created by the Constitution of this State until the completion of
his sentence” and that “[a] person sentenced to imprisonment shall lose
his right to vote until released from imprisonment.” 730 Ill. Comp.
Stat. 5/5-5-5(b), (c). Other civil rights are suspended as well, as
provided in the state’s election code. 730 Ill. Comp. Stat. 5/5-5-5(a).
Section 5/5-5-5(d) provides, however, that, except with regard to the
suspension or revocation of a person’s driver license, all license rights
and privileges are restored once the person is released from prison or
discharged from probation, “unless the authority having jurisdiction of
such license rights finds after investigation and hearing that restoration
is not in the public interest.” We note, however, that under Illinois law,
“[i]t is unlawful for a person to knowingly possess . . . any firearm or
any firearm ammunition if the person has been convicted of a felony
under the laws of this State or any other jurisdiction.” 720 Ill. Comp.
Stat. 5/24-1.1(a). That right may be restored only upon application to
the director of the Department of State Police. See 430 Ill. Comp. Stat.
65/10(c).
13It was not necessary for the Committee to file a cross-appeal.
None of the issues raised would “enlarge the rights of the appellee or
. . . lessen the rights of the appellant” and instead only offer alternative
means to affirm the trial court’s judgment in favor of the Committee.
Ariz. R. Civ. App. P. 13(b)(3). We nonetheless treat the Committee’s
claims as cross-issues and address their merits. See Town of Miami v.
City of Globe, 195 Ariz. 176, n.1, 985 P.2d 1035, 1036 n.1 (App. 1998)
(addressing claims improperly raised on cross-appeal as cross-issues).
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PARKER v. CITY OF TUCSON
Opinion of the Court
disqualify petition sheets circulated by non-resident circulators;
(2) insufficient evidence supported the court’s finding that circulators
Stephen Laws, Renee Gordon, and Louise Breneiser were not Arizona
residents; (3) the court erred in disqualifying an additional sixty
petition sheets because the errors were merely technical; (4) the court
erred by permitting the Employees to amend their pleadings during
trial to include an argument that a circulator was not an Arizona
resident; and, (5) the court erred in denying the Committee’s motion to
dismiss the complaint as untimely. We address each argument in turn.
1. Non-Resident Circulators
¶38 The Employees alleged in their complaint, and the trial
court found, that three circulators—Stephen Laws, Renee Gordon, and
Louise Breneiser—did not live in Arizona and had not registered with
the Secretary of State as out-of-state circulators as required by § 19-
112(C). The court thus disqualified the petition sheets circulated by
those circulators. The Committee argues on appeal the court had no
authority to do so because the legislature did not provide
disqualification as a penalty for noncompliance with § 19-112(C). In
our discretion, we decline to address this argument because the
Committee did not raise it below. See Airfreight Express Ltd. v. Evergreen
Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238-39 (App. 2007)
(arguments raised for first time on appeal generally waived).
¶39 The Committee further argues the trial court erred in
concluding there was clear and convincing evidence that Laws,
Gordon, and Breneiser were not Arizona residents.14 Evidence is clear
and convincing if it makes “‘the thing to be proved . . . highly probable
or reasonably certain.’” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 25, 110
P.3d 1013, 1018-19 (2005), quoting Black’s Law Dictionary 577 (7th ed.
1999). We will affirm the court’s determination unless it is clearly
erroneous. See Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 33, 20
P.3d 1158, 1168 (App. 2001).
14The Employees assert they were only required to demonstrate
the circulators’ non-residence by a preponderance of the evidence.
Because we determine there was clear and convincing evidence of non-
residence, we do not address this argument.
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PARKER v. CITY OF TUCSON
Opinion of the Court
¶40 Section 19-112(C) requires that “[c]irculators who are not
residents of this state must be registered as circulators with the
secretary of state before circulating petitions.” Arizona election law
provides that a resident is a person who has “actual physical presence
in this state . . . combined with an intent to remain.” § 16-101(B). “A
temporary absence,” however, “does not result in a loss of residence if
the individual has an intent to return following his [or her] absence.”
Id. The Committee first suggests the trial court erred because it did not
expressly examine the factors listed in A.R.S. § 16-593 and should have
considered “where the individual’s family resides” while a person is
absent from the state and “[w]here the person’s children go to school.”
We reject this argument. Section 16-593 relates only to the scope of
examination conducted by the election board pursuant to a challenge
to an individual elector’s residence pursuant to A.R.S. §§ 16-591 and
16-592. It does not purport to create a list of factors a trial court must
consider in determining a person’s residence. Although the factors
listed in § 16-593 may be relevant to the court’s decision, the absence of
evidence related to specific factors does not require the court to
conclude the person is a resident.
2. Eligibility of Circulator Laws
¶41 In finding Laws was not an Arizona resident, the trial
court noted he had provided two addresses for his residence in
Arizona. One address is a high-rise apartment complex, but at the
other address there is no residence or structure of any kind. The court
also noted Vogel’s testimony that the complex manager15 did not know
Laws, had told Vogel that Laws did not receive mail there, and had
checked the complex’s computer database listing the name of residents
15To the extent the Committee challenges the testimony of the
complex manager as inadmissible hearsay, it does not adequately
develop this argument, and we do not consider it further. See Ariz. R.
Civ. App. P. 13(a)(6) (brief shall contain arguments with “citations to
the authorities, statutes and parts of the record relied on”); Polanco v.
Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007)
(finding issue waived on appeal because party mentioned it in passing,
cited no supporting legal authority, and failed to develop it further).
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PARKER v. CITY OF TUCSON
Opinion of the Court
without finding an entry for Laws. Additionally, the court observed,
Andrew Chavez—the owner of a petition-circulating company—
testified that he knew Laws, that Laws traveled from state to state as a
circulator, and that Laws would have described his state of residence
as either Ohio or California. Chavez additionally testified Laws had
arrived in Arizona just before he began circulating signature sheets and
had left the day after the sheets were submitted.
¶42 The Committee argues there was insufficient evidence that
Laws was not a resident because he had been registered to vote in
Maricopa County since 2007 and because Vogel “false[ly] assum[ed]”
that Laws lived alone at the apartment complex, thus explaining why
he was not listed in the complex’s registry. The Committee further
asserts Chavez’s testimony that Laws “travels from one temporary
location to another in his work as a petition circulator has no legal
bearing on his residence.” We disagree, particularly in light of the
dearth of evidence connecting Laws with the apartment address he had
provided and Chavez’s testimony that Laws would not characterize
himself as an Arizona resident. In short, the trial court reasonably
could conclude Laws did not live at the address he had listed. The
Committee essentially is asking us to reweigh the evidence, which we
will not do. See Pro Finish USA, Ltd. v. Johnson, 204 Ariz. 257, ¶ 23, 63
P.2d 288, 294 (App. 2003).
3. Eligibility of Circulator Gordon
¶43 The Committee further argues the trial court erred in
finding Gordon was a non-resident because “[t]he record is devoid of
any evidence” about her residency, noting that Vogel did not
investigate her. The court concluded Gordon was a non-resident,
observing that Chavez had testified she had traveled with Laws to
circulate petitions and had left with him. Thus, the Committee reasons,
the court improperly disqualified Gordon based on her “association”
with Laws. But the Committee again discounts Chavez’s testimony,
which the court found credible. Although Chavez acknowledged he
did not know Gordon “personally,” he testified that he knew of her,
was familiar with her residency status, knew she did not live at the
address she had listed, and knew she and Laws were in a relationship
and travelled together. And Gordon provided the same address as
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PARKER v. CITY OF TUCSON
Opinion of the Court
Laws on her petition signature sheet, despite there being no evidence
she lived at that address and only limited evidence tying Laws to that
address. This amply supports the court’s conclusion that Gordon was
not an Arizona resident.
4. Eligibility of Circulator Breneiser
¶44 Finally, the Committee contends the trial court erred in
finding Breneiser a non-resident based solely on the fact that she had
filed a non-resident registration form for another election with the
Secretary of State approximately forty-five days before the Initiative
was assigned a serial number from the City Clerk. The Committee
speculates that “[a] lot could have happened in that period of time”
and that Brenheiser “may well have decided to re-establish residency
in Arizona after” filing the registration form. We cannot agree with the
Committee that, in light of plain evidence that Brenheiser was not a
resident in April, the court could not conclude she also was not a
resident in May.
5. Additional Disqualified Signature Sheets
¶45 The Committee next asserts the trial court erred by
excluding signature sheets based on faults in the accompanying
circulator’s affidavit—specifically, that the circulator had avowed that
“each individual [signer] printed the individual’s own name and
address” when the evidence showed that someone other than the
signer had done so. The Committee argues that, pursuant to § 19-
121.01(A)(3)(f), the court was permitted to remove only the defective
entries and had no authority to disqualify the entire petition sheet. It
further argues, in the alternative, that the defective entries constituted
only “technical” violations that did not warrant disqualification of the
entire sheet. Whether the court had authority to exclude the signature
sheets is a question of law that we review de novo. See Harris, 219 Ariz.
36, ¶ 13, 192 P.3d at 165-66.
¶46 Section 19-112(A) governs the signing of petition signature
sheets and requires, inter alia, that the qualified elector “print his first
and last names and write, in the appropriate spaces following the
signature, the signer’s residence address, giving street and number,
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PARKER v. CITY OF TUCSON
Opinion of the Court
and if he has no street address, a description of his residence location.”
Each petition signature sheet must be accompanied by an affidavit
signed by the circulator, avowing that the signer has complied with
§ 19-112(A). See § 19-112(C). Section 19-121.01(A)(3)(f) requires the
Secretary of State, or in this case the City Clerk, to mark as ineligible for
verification any signature “for which the secretary of state determines
that the petition circulator has printed the elector’s first and last names
or other information in violation of § 19-112.”
¶47 We disagree with the Committee’s contention that a trial
court is limited to this remedy under the circumstances presented here.
Section 19-121.01(A) describes the procedure to be used and the sheets
and signatures subject to removal by the Secretary of State for various
faults in the signatures and/or petition sheets. It does not purport to
limit the remedies available to a trial court and, critically, does not
address the issue of fraudulent affidavits. Our supreme court made
clear in Brousseau v. Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716
(1984), that “petitions containing false certifications by circulators are
void, and the signatures on such petitions may not be considered in
determining the sufficiency of the number of signatures to qualify for
placement on the ballot.” The circulator affidavits on the petition
sheets used here stated, among other things, that “each individual
printed the individual’s own name and address.” Because the petition
circulators avowed that each signer wrote his or her own address, and
the evidence demonstrated that avowal was false, the signature sheets
are void pursuant to the rule announced in Brousseau.
¶48 The Committee further argues, however, that our supreme
court abrogated the Brousseau rule in Ross v. Bennett, 228 Ariz. 174, 265
P.3d 356 (2011). The Committee misreads Ross. There, the court
rejected the argument that Brousseau required the trial court to strike
signature sheets “because the county recorder could not certify
individual signatures on them.” Ross, 228 Ariz. 174, ¶ 34, 265 P.2d at
362. The court clarified that omissions and irregularities did not
require an entire signature sheet to be discarded and that Brousseau did
not “stand for the proposition that the Court should disqualify all
petitions with affidavits based on any false information.” Ross, 228
Ariz. 174, ¶ 36, 265 P.3d at 363. Instead, the court explained, although
the signature sheets “may contain some signatures from electors who
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PARKER v. CITY OF TUCSON
Opinion of the Court
are not qualified to vote,” that did not mean “the circulator’s oath was
itself fraudulent” because there was no evidence the circulators were
aware the electors were not qualified and “[f]raud requires an element
of knowledge—a guilty mental state.” Id. ¶ 37. Here, in contrast, the
circulator’s affidavit was necessarily false. It was apparent from the
signature sheets that the elector did not print his or her own address—
a fact the circulator must have known if the affidavit’s statement that
each elector filled out the signature sheet “in my presence on the date
indicated” were true. The false affidavits rendered the signature sheets
void. Brousseau, 138 Ariz. at 456, 675 P.2d at 716.
6. Amended Complaint
¶49 The Committee further claims the trial court improperly
permitted the Employees “to amend their pleadings during trial” to
challenge Gordon’s residency status. On the first day of the evidentiary
hearing, the court heard testimony from Carol Zimmerman, the
political consultant hired by the Committee to organize and supervise
the petition circulators. During cross-examination, counsel for the
Committee asked Zimmerman about Laws’s “living arrangements.”
She testified that Laws had “traveled” with Gordon and that Gordon
“is also registered at that address in Phoenix.” On the second day of
the hearing, counsel for the Employees asked Chavez about
Zimmerman’s testimony concerning Gordon, and Chavez confirmed
Gordon was a paid circulator who had traveled from California to
Arizona with Laws. Chavez further stated that Gordon’s affidavit
claiming she lived at the Phoenix address was not “a truthful
statement.” The Committee did not object to this testimony. During
cross-examination, counsel for the Committee asked Chavez about
“property” owned by Gordon. When the Employees sought admission
of signature sheets circulated by Gordon, however, the Committee
objected, stating it opposed the use of the exhibit “for the purpose of
trying to amend the Complaint and adding another allegation to it.”
¶50 The Employees agreed they were seeking to amend their
complaint to include a claim that Gordon was ineligible to serve as a
circulator and argued, “this is an area that was opened up by the
Committee in the questioning of their own witness [Ms. Zimmerman]”
because she had offered the Phoenix address “as proof of Ms. Gordon’s
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PARKER v. CITY OF TUCSON
Opinion of the Court
location” and the Employees’ “research[]” showed Gordon did not live
there. The Committee responded that it did not “know what that
research is,” that there had not been “a witness to testify as to that
research,” and that it “is very late in the process to bring in” a claim
related to another circulator. The trial court, noting that amendments
should be liberally granted and that a pleading can be amended to
conform to the evidence presented, overruled the Committee’s
objection.
¶51 Rule 15(b), Ariz. R. Civ. P., automatically amends
pleadings to “conform to the evidence” and to raise additional issues
“[w]hen [such] issues . . . are tried by express or implied consent of the
parties.” However, the pleadings still may be amended even when a
party objects to evidence related to the new issue “on the ground that it
is not within the issues made by the pleadings.” Id. A trial court is
required to permit such an amendment “when the presentation of the
merits of the action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party’s action or defense upon
the merits.” Id. “Failure to object to the introduction of evidence on
the ground that it is not within the issues is sufficient to imply consent
to try such issues.” In re Estate of McCauley, 101 Ariz. 8, 18, 415 P.2d
431, 441 (1966). “Permitting evidence relevant to an existing issue to be
admitted without objection does not constitute ‘implied consent’ to
trial of an issue which has not been raised.” Magma Copper Co. v. Indus.
Comm’n, 139 Ariz. 38, 47, 676 P.2d 1096, 1106 (1983). An amendment
nonetheless is permitted absent a showing of “prejudice, i.e. surprise.”
Estate of McCauley, 101 Ariz. at 18, 415 P.2d at 441. We review the trial
court’s decision to permit amendment of the pleadings under
Rule 15(b) for an abuse of discretion.16 Bujanda v. Montgomery Ward &
Co., 125 Ariz. 314, 315, 609 P.2d 584, 585 (App. 1980).
16The Committee also argues that “Rule 15’s ‘liberal policy of
amendment’” does not apply to election cases because it would have
had no opportunity for additional discovery and “trial continuances
are typically unavailable.” The Committee did not raise this argument
below nor did it suggest that a continuance would permit it to
adequately contest the Employees’ claim concerning Gordon’s
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PARKER v. CITY OF TUCSON
Opinion of the Court
¶52 The Committee contends it did not “open[] the door” to
the issue whether Gordon was a qualified circulator because the
evidence related to Gordon’s address was introduced “to support an
existing claim.” We need not address this argument, however, because
the Committee has not shown resulting prejudice. The amendment did
nothing to change the Employees’ theory of the case—the issue of non-
resident circulators had been raised and thoroughly addressed by the
parties. See Bujanda, 125 Ariz. at 316, 609 P.2d at 586 (amendment
improper because it “would have changed the theory of the case”).
And, the Committee cannot reasonably claim surprise, given that
evidence was produced on the first day of the evidentiary hearing that
Gordon was a circulator who claimed to live at the same address as
and was in a relationship with Laws—whom the Employees had
specifically identified as a non-resident circulator. Indeed, the
Committee chose to use that evidence in an apparent attempt to bolster
its defense of Laws’s residency status by suggesting that Gordon and
not Laws might have owned a condominium at the address both had
listed. Thus, the Committee reasonably should have anticipated the
Employees would assert Gordon was not a qualified circulator as well.
Accordingly, we conclude the trial court did not err by permitting the
Employees to amend their complaint to conform to evidence that
Gordon was not an Arizona resident.17
7. Denial of Motion to Dismiss
¶53 Last, the Committee argues the trial court erred by
denying its motion to dismiss the Employees’ complaint because they
residency status. Thus, we do not address the issue further. See
Airfreight Express Ltd., 215 Ariz. 103, ¶ 17, 158 P.3d at 238-39.
17Because we conclude the Committee has not shown resulting
surprise, we need not separately address its argument that the
amendment violated its due process rights. See Cook v. Losnegard, 228
Ariz. 202, ¶ 18, 265 P.2d 384, 388 (App. 2011) (“‘Due process entitles a
party to notice and an opportunity to be heard at a meaningful time
and in a meaningful manner.’”), quoting Curtis v. Richardson, 212 Ariz.
308, ¶ 16, 131 P.3d 480, 484 (App. 2006).
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PARKER v. CITY OF TUCSON
Opinion of the Court
did not file it within the five-day time limit prescribed by § 19-122(A)
and, in the alternative, did not timely seek mandamus relief pursuant
to § 19-122(C) and § 12-2021. Pursuant to § 19-122(A):
If the secretary of state refuses to accept and
file a petition for the initiative or referendum,
or proposal for a constitutional amendment
that has been presented within the time
prescribed, or if the secretary of state refuses
to transmit the facsimiles of a signature sheet
or sheets or affidavits of circulators to the
county recorders for certification under § 19-
121.01, the secretary of state shall provide the
person who submitted the petition, proposal,
signature sheet or affidavit with a written
statement of the reason for the refusal.
Within five calendar days after the refusal
any citizen may apply to the superior court
for a writ of mandamus to compel the
secretary of state to file the petition or
proposal or transmit the facsimiles.
¶54 Relying on Transportation Infrastructure Moving Arizona’s
Economy v. Brewer, 219 Ariz. 207, 196 P.3d 229 (2008) (“TIME”), the
Committee argues, as it did below, that our supreme court held that
the time limit prescribed by § 19-122(A) was “applicable to any
challenge” to the Secretary of State’s actions under § 19-121.01. Thus,
the Committee concludes, although the Employees’ claim was brought
pursuant to § 19-122(C), the five-day time limit in § 19-122(A)
nonetheless applies. Section 19-122(C) permits an action “by any
citizen” to challenge a petition that is not legally sufficient and to
“enjoin the secretary or other officers from certifying or printing on the
official ballot for the ensuing election the amendment or measure
proposed or referred.” The subsection contains no express time limit
for bringing that action.
¶55 Questions of statutory interpretation are reviewed de
novo. Mejak v. Granville, 212 Ariz. 555, ¶ 7, 136 P.3d 874, 875 (2006).
Here, the Committee’s position is belied by the statutory language. See
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PARKER v. CITY OF TUCSON
Opinion of the Court
id. ¶ 8 (statutory language best indicator of legislative intent). By its
plain language, § 19-122(A) applies only to the Secretary of State’s
refusal to “accept and file” a valid initiative petition. The Employees’
challenge here was precisely the opposite and is encompassed by the
plain language of § 19-122(C).
¶56 We find nothing in TIME that supports the Committee’s
argument and certainly nothing that suggests we should ignore the
plain language of § 19-122. The Committee relies on portions of TIME
that, when read in isolation, obliquely suggest that § 19-122(A) could
apply to any challenge to the actions of the Secretary of State under
§ 19-121.01. But the Committee does not consider those portions of the
court’s decision in context and in light of the issues that were raised in
that case and addressed by the court; the court in TIME simply did not
discuss whether § 19-122(C) should be governed by the five-day limit
in § 19-122(A). Indeed, the court cited with approval its decision in
Kromko v. Superior Court, 168 Ariz. 51, 55, 811 P.2d 12, 16 (1991), in
which the court expressly determined that the time limit in § 19-122(A)
does not apply to a challenge under § 19-122(C). TIME, 219 Ariz. 207,
¶¶ 18, 28, 196 P.3d at 233-35.
¶57 The Committee alternatively contends that the “principles
enunciated in TIME” nonetheless required dismissal of the Employees’
complaint. Specifically, based on TIME and Kromko, it asserts the
Employees were required to challenge the City Clerk’s calculations
before the Clerk sent the petition sheets to the County Recorder to
determine the error rate. The Committee is correct that our supreme
court recognized and discussed the potential problems caused by the
short timeframes often present in election challenges. TIME, 219 Ariz.
207, ¶¶ 33-35, 196 P.3d at 235-36. Thus, the court has determined that
such actions cannot be unreasonably delayed. Id. ¶ 33; see also Kromko,
168 Ariz. at 57, 811 P.2d at 18 (“[D]isputes 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.”).
¶58 We agree with the trial court that there was no
unreasonable delay here. The Employees filed their action nearly two
months before the deadline for printing the ballots. See Kromko, 168
Ariz. at 57, 811 P.2d at 18 (challenge filed “more than a month and a
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PARKER v. CITY OF TUCSON
Opinion of the Court
half before absentee voting began” timely). Although the Employees
conceivably could have filed their action between two and three weeks
earlier, after the City Clerk had issued its initial finding that some
22,000 signatures were eligible for verification, the Committee has
identified no resulting prejudice. Moreover, despite the Committee’s
fears, there was time for thorough proceedings in both the trial court
and before this court, and the Committee had the opportunity to seek
review from our supreme court.
DISPOSITION
¶59 For the reasons stated, pursuant to this court’s order dated
September 12, 2013, the judgment is reversed.
33