PINGERELLI v. COVEY, EL AL
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE PETER PINGERELLI, a qualified ) elector of the State of Arizona, ) ) Plaintiff/Appellant, ) ) v. ) ) DONALD COVEY, Maricopa Country ) Superintendent of Schools; and ) BILL MONTGOMERY, Maricopa County ) Attorney; each in their official ) capacities, ) ) Defendants/Appellees. ) ) 1 CA-CV 11-0344 DIVISION ONE FILED: 08/07/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. LC2011-000122-001 The Honorable John R. Hannah, Jr., Judge AFFIRMED Tsontakis Law PC By Anthony Tsontakis Attorney for Plaintiff/Appellant Phoenix William G. Montgomery, Maricopa County Attorney By Bruce P. White, Deputy County Attorney M. Colleen Connor, Deputy County Attorney Attorneys for Defendants/Appellees Phoenix O R O Z C O, Judge ¶1 Plaintiff/Appellant superior court s denying his order Peter dismissing motion for Pingerelli his amended summary appeals the complaint and judgment against Defendant/Appellee Bill Montgomery (County Attorney).1 Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The Maricopa (Superintendent) has County the Superintendent authority to fill vacancy by appointment or special election. (A.R.S.) § 15-302.A.3 (Supp. 2011).2 a of Schools school board Ariz. Rev. Stat. To help him carry out this function, the Superintendent established detailed procedures for the nomination of potential appointees (the Nominating Procedures) to be considered to fill school board vacancies. ¶3 In December 2010, after a school board vacancy developed, the governing school board (Board) for the Peoria 1 Pingerelli filed two motions for order to show cause, one against Donald Covey, the Maricopa County Superintendent of Schools, and the second against Bill Montgomery, the Maricopa County Attorney. The superior court treated these pleadings as motions for summary judgment. Pingerelli has abandoned the appeal of the denial of the motion for summary judgment against the Superintendent but appeals the denial of the motion for summary judgment against the County Attorney. 2 We cite the current version of applicable statutes when no revisions material to this decision have since occurred. 2 Unified School Resolution) Procedures. District to (PUSD) bypass the passed a resolution Superintendent s (the Nominating As a result of the Resolution, the Superintendent made arrangements3 for a special election to be held on May 17, 2011. In Resolution and agreed to follow the Superintendent s Nominating Procedures. On January 19, response, 2011, the the Board rescinded Superintendent the cancelled the special election. ¶4 Pingerelli sought candidacy in the special election for the vacancy. In a January 27, 2011 email sent to the Superintendent, Pingerelli acknowledged the Superintendent had cancelled the election but contested whether the Superintendent had such authority. remedy to prevent Instead of immediately pursuing a legal the Superintendent from cancelling the election, however, Pingerelli continued collecting signatures on his nomination petitions, which he attempted to deliver to the Superintendent on February 14, 2011. The Superintendent refused to accept the petitions. 3 Whether the Superintendent called the special election was hotly contested below. Pingerelli s lawsuit was premised on his belief that the Superintendent had no authority to cancel a special election, once the election has been called. The Superintendent and County Attorney agreed, but maintained the Superintendent never called an election. The superior court ruled the Superintendent had called the election but that under the circumstances presented here, the Superintendent had the authority to cancel the special election. 3 ¶5 Two weeks later, Pingerelli filed but did not serve a lawsuit against the Superintendent seeking a court order compelling the Superintendent to hold the special election on May 17. Nine days after that, Pingerelli amended the complaint to seek an additional order mandating that the County Attorney compel the Superintendent to hold the special election. Pingerelli served the lawsuit on March 9, 2011, more than fortyone days after acknowledging the election had been cancelled. ¶6 On March 30, 2011, the superior court dismissed the amended complaint and denied Pingerelli s motions for summary judgment against both public officials, holding that Pingerelli was not entitled to relief because: (1) his claims were barred by the doctrine of laches; and (2) the Superintendent had the authority to cancel a special election, even if such authority was not specifically enumerating by statute. appealed. Pingerelli timely We have jurisdiction pursuant to A.R.S. § 12-2101.A.1 (Supp. 2011). DISCUSSION ¶7 On appeal, Pingerelli asserts the superior court erred in holding that it could not issue a writ of mandamus to compel the County Attorney to initiate quo warranto proceedings against the Superintendent. 4 ¶8 moot In response, the County Attorney argues the appeal is and, in the alternative, that Pingerelli s claims are barred by the doctrine of laches, that the superior court did not abuse its discretion in holding the claims were barred by the doctrine of laches, and that Pingerelli waived any argument regarding laches by failing to raise the issue in his opening brief. ¶9 The County Attorney also contends that quo warranto proceedings are only appropriate to challenge someone who is unlawfully holding an office. Because the Superintendent is not unlawfully holding the office, according to the County Attorney, a writ of mandamus to initiate quo warranto proceedings would not be appropriate in this case. Mandamus ¶10 Mandamus is an extraordinary remedy issued by a court to compel a public officer to perform an act which the law specifically imposes as a duty. Educ. Ass n, (declining to 109 Ariz. issue a 342, writ Bd. of Educ. v. Scottsdale 344, of 509 P.2d mandamus to 612, 614 compel district to follow a collective bargaining agreement). a (1973) school Mandamus is only appropriate when the applicant has an immediate and complete legal entitlement to the act and the law requires that the public officer perform the act. 5 Id. Even then, when the applicant has shown an absolute right to the requested act, it is still within the discretion of the court to grant mandamus relief. Brewer v. Burns, 222 Ariz. 234, 242, ¶ 41, 213 P.3d 671, 679 (2009). ¶11 Pingerelli asks us to issue a writ of mandamus to compel the County Attorney to initiate quo warranto proceedings against the Superintendent pursuant to A.R.S. §§ 12-2021 (2003), -2042 (2003). Mandamus is the appropriate relief when two conditions are met: (1) the performance sought to be compelled is a ministerial act specifically required of the office by law, or the performance is a discretionary act and it clearly appears that the officer has acted arbitrarily and unjustly and in the abuse of discretion ; and (2) there is no other plain, speedy and adequate remedy at law. Rhodes v. Clark, 92 Ariz. 31, 34- 35, 373 P.2d 348, 350 (1962) (citations and internal quotation marks omitted). discretionary mandamus. Thus, if the action of a public officer is that discretion may not be controlled by Collins v. Krucker, 56 Ariz. 6, 13, 104 P.2d 176, 179 (1940). ¶12 At oral argument on appeal, Pingerelli requested that quo warranto proceedings be initiated to investigate whether the Superintendent abused his discretion in cancelling the election once it was called. Pingerelli, however, had other speedy and 6 adequate methods to obtain judicial review Superintendent s decision to cancel the election. of the For example, if Pingerelli had filed a timely special action to enjoin the Superintendent from cancelling the election, then we would have had the opportunity to evaluate whether the cancellation was an abuse of his discretion and, if so, could have reinstated the election. ¶13 Pingerelli s delays in initiating this action and his failure to reviewing bring whether a timely the special action Superintendent preclude abused his us from discretion. Thus, because Pingerelli had alternative, adequate remedies at law of which he failed to make use, mandamus is inappropriate. See Morris v. Woolery, 103 Ariz. 392, 393, 442 P.2d 839, 840 (1968) (holding that mandamus was inappropriate where the applicant did not pursue administrative remedies). The Appeal Is Moot ¶14 In addition to seeking mandamus relief, Pingerelli s appeal is moot because it is impossible Pingerelli the remedy he seeks. for us to provide A case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties. Sedona Private Prop. Owners Ass n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5, 961 P.2d 1074, 1075 (App. 1998). May 17, 2011 has come and gone, 7 and it is too late to hold the special election for the Board position on that date. Additionally, the Superintendent has appointed a new Board member to fill the PUSD Board vacancy. ¶15 In fact, the lawsuit was moot when the superior court held the hearing on March 30, 2011.4 Arizona law is well- established that an election case becomes moot at the point when ballots must be printed so that early and absentee voting begins on time and to ensure that voters are not disenfranchised. See, e.g., Korte v. Bayless, 199 Ariz. 173, 174-75, ¶ 3, 16 P.3d 200, 201-02 (2001) (finding lawsuit filed eight weeks before deadline for mailing of publicity pamphlets not barred by laches); Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 matters (1991) must be ( disputes initiated concerning and heard election in time to and petition prepare the ballots for absentee voting to avoid rendering an action moot ); 4 In deciding that Pingerelli s claims were barred by laches, the superior court s analysis implicated issues that are equally applicable to an analysis on the issue of mootness. Without invoking mootness, the superior court found that Pingerelli filed his lawsuit too late because the time to send the ballots to the printer had already passed, stating: The horse is out of the barn and pretty far down the road. The superior court further noted that if Pingerelli had brought the lawsuit in late January when he discovered that the Superintendent cancelled the special election, his lawsuit would have been timely. Thus, the superior court concluded, Pingerelli s claims were barred by the doctrine of laches because he failed to act more swiftly. We find the court s analysis equally applicable to the issue of mootness. 8 Bd. of Supervisors v. Superior Court, 103 Ariz. 502, 504-05, 446 P.2d 231, 233-34 (1968) (finding election cases moot because lawsuits were filed too late to allow the trial courts to render decisions in time to print and distribute absentee ballots); Rapier v. Superior Court, 97 Ariz. 153, 155-56, 398 P.2d 112, 113 (1964) (election contest moot where decision not made in time for absentee voting, even without taking into consideration a reasonable time for printing the ballots). Thus, to avoid the problem of mootness, actions must be brought in sufficient time to allow the court ballots must be printed. to make a decision before absentee Korte, 199 Ariz. at 174, ¶ 3, 16 P.3d at 201. ¶16 Here, the defendants presented evidence that the ballot files had to be transferred to the printer no later than March 25, 2011 to ensure the ballots were printed in time for absentee voting. the exigent ballots. Neither party informed the superior court of circumstances related to the printing of the For that reason, the hearing was not held until five days after the March 25 drop-dead date. Thus, the case was moot when the hearing was held on March 30, 2011. ¶17 Even assuming some flexibility would allow the printer to include the names of candidates for the PUSD Board on the ballot if submitted shortly after 9 March 25, 2011, no other candidates had submitted nomination petitions to secure a space on the ballot election. because the Superintendent had cancelled the For all of these reasons, Pingerelli s case was moot at the time of the hearing below, and is moot on appeal. ¶18 Courts do not generally consider moot issues unless they are either of great public importance or are capable of repetition yet evading review. Slade v. Schneider, 212 Ariz. 176, 179, ¶ 15, 129 P.3d 465, 468 (App. 2006). Pingerelli does not suggest that either exception applies here.5 ¶19 Nevertheless, regarding whether authority to a cancel statewide concern. we are county a inclined school special to view the superintendent election to be a question has the matter of Assuming the next claimant acts promptly, however, in the event this narrow issue arises again, it will not necessarily evade review on the merits. See Sedona Private Prop. Owners Ass'n, 192 Ariz. at 128, ¶ 11, 961 P.2d at 1076 (holding Indeed, initiative this case issue could is not one that have been decided evades on its review). merits if Pingerelli had not waited to file his lawsuit and the superior court regarding the Pingerelli argues that the mootness issue has application to his claim against the County Attorney. disagree, for the reasons stated here and below. 10 no We 5 had known of the exigent circumstances ballot printing deadline. We thus find Pingerelli s appeal to be moot. Laches ¶20 The superior court held that Pingerelli entitled to any relief on the ground of laches. was not Pingerelli does not address the laches issue in his opening brief.6 Instead of articulating his position in his reply brief, he maintains that the issues of laches and mootness are only applicable to his claim against the Superintendent and are irrelevant to his claim against the County Attorney. ¶21 We disagree. Pingerelli admits that both claims arise out of the same facts but asserts that the relief sought against one is wholly independent of the relief sought against the other. This, however, complaint, is irrelevant. a court order order the amended In sought court of Superintendent to hold the May 17, 2011 special election. he a one the two, sought count compelling count Pingerelli In compelling the County Attorney to force the Superintendent to hold the election in May. We do not see, and Pingerelli does not explain, why the doctrine of laches (and mootness) would bar the first claim 6 Issues not clearly raised in appellate briefs are deemed waived. Childress Buick Co. v. O Connell, 198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000). 11 against the identical Superintendent relief through and the not County the second Attorney.7 claim seeking Because the superior court held that the doctrine of laches barred both claims and we conclude that Pingerelli waived this argument on appeal, and Pingerelli s appeal fails for this reason as well. CONCLUSION ¶22 For the above stated reasons, we affirm the order of the trial court. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ PHILIP HALL, Judge /S/ ____________________________________ JOHN C. GEMMILL, Judge 7 It is not the role of the appellate court to decipher and develop arguments not clearly presented by a party. See Nationwide Res. Corp., v. Massabni 134 Ariz. 557, 565, 658 P.2d 210, 218 (App. 1982). 12
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