RECALL THEM ALL v. JOHNSON

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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 RECALL THEM ALL 2012, a political committee; and MITCHELL DUNN, ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) ROBYN STALLWORTH-POUQUETTE, in ) her official capacity as Yuma ) County Recorder; and LYNDA ) BUSHONG, in her official ) capacity as Yuma City Clerk, ) ) Defendants/Appellees, ) ) ) PAUL JOHNSON and JERRY STUART, ) Yuma City Councilmen, ) ) Real Parties in Interest/ ) Appellees. ) __________________________________) DIVISION ONE FILED: 11/30/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0617 EL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yuma County Cause No. S1400CV201200890 The Honorable John Neff Nelson, Judge REVERSED AND REMANDED Davis Miles McGuire Gardner, PLLC by Joshua W. Carden Attorneys for Plaintiffs/Appellants Tempe Snell & Wilmer LLP by Adam E. Lang Eric H. Spencer Martha E. Gibbs Attorneys for Defendant/Appellee Lynda Bushong Phoenix Glenn J. Gimbut, San Luis City Attorney by Glenn J. Gimbut Attorneys for Real Parties in Interest/Appellees San Luis P O R T L E Y, Judge ¶1 We are asked to determine whether the trial court erred by dismissing the special action filed by Recall Them All 2012 and its Chairman, Mitchell Dunn Committee ), for lack of jurisdiction. (collectively the For the reasons that follow, we reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY ¶2 Paul The Johnson Committee and sought Jerry to recall Stuart. The Yuma Councilmembers Committee filed an application for recall petitions, circulated the petitions, and submitted them to the Yuma City Clerk ( Clerk ) to verify the signatures section pursuant 19-208.01 to (West Arizona Revised 2012). The Statutes Clerk, as ( A.R.S. ) the receiving officer, 1 and pursuant to the authority of § 19-202.01(A) (West 2012), struck some signatures but still found that the verified signatures the exceeded signatures for the constitutional verification 1 to minimum, the Yuma and County submitted Recorder The City Clerk is the receiving officer for purposes of municipal recall election. A.R.S. § 19-203(A) (West 2012). 2 a ( Recorder ) pursuant to § 19.208.02(A). The Recorder struck additional signatures and returned the petitions to the Clerk, noting that the remaining verified signatures fell below the constitutional minimum. ¶3 The Clerk notified the Committee that the petitions did not have sufficient verified signatures to force a recall election. The Committee then filed a statutory special action complaint against the Clerk and Recorder challenging the disqualification of the signatures under § 19.208.04(B) (West 2012). 2 The Clerk responded by arguing that § 19.208.04(B) does not provide a cause of action to challenge the determination that the recall petitions had insufficient signatures to force an election. argument. action The trial court set a show cause hearing and heard The court noted that it did not find any statutory whereby insufficient pleadings. and the signatures was not in have a been position found to to amend be the As a result, the court dismissed the case because it had no jurisdiction over the case as pled. The court then asked for and received a form of order for purposes of the 2 The Councilmembers intervened and were the Real-Parties-inInterest in the trial court. Their arguments are similar to those of the Clerk. 3 appeal process and dismissed the case with prejudice. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (West 2012). 3 DISCUSSION ¶4 The right to Arizona recall public Constitution guarantees officers hold who the people elective the offices. Ross v. Bennett, 228 Ariz. 174, 176, ¶ 7, 265 P.3d 356, 358 (2011). Although the recall procedure has been used rarely, the recall provision remains in force today and our supreme court has interpreted constitutional and statutory provisions governing recall recall its liberally officials. to protect Id. at ¶¶ the 7-8. public s Mindful right to of the continuing historical importance of the ability of citizens to attempt to recall their elected officials, we turn to whether the trial court erred by dismissing this case. ¶5 The trial court dismissed this action for two reasons. First, the court did not find authority that allows a challenge to the receiving signatures. officer and Recorder for insufficient Second, the court declined to amend the pleading even though it recognized that other relief may be available. We will address each in turn. jurisdiction de novo. We review a dismissal for lack of Satterly v. Life Care Centers of Am., Inc., 204 Ariz. 174, 177, ¶ 5, 61 P.3d 468, 471 (App. 2003); 3 The Recorder filed a notice in this court that she will abide by[] the direction provided by the Court in its resolution of the issues. 4 Ariz. Soc y of Pathologists v. Ariz. Health Care Cost Containment Sys. Admin., 201 Ariz. 553, 556, ¶ 13, 38 P.3d 1218, 1221 (App. 2002). the statute. We also review de novo the interpretation of N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 303, ¶ 8, 93 P.3d 501, 503 (2004); City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178, ¶ 5, 181 P.3d 219, 225 (App. 2008). A. ¶6 The trial court correctly noted that none of the reported recall election cases have addressed whether an elector may challenge a determination that the petitions did not have sufficient signatures. And, as the Clerk points out, the relevant statutory provisions do not seem to provide a direct statutory basis for challenging signatures that have been struck. ¶7 not We disagree, however, that the relevant statutes do allow a challenge to stricken signatures. Although § 19.208.04(B) allows an elector to challenge the number of signatures certified by the county recorder, the signatures on the recall petitions must first be submitted to, verified and certified by the receiving officer. Only if the receiving officer finds A.R.S. § 19-208.01(A). that the number of signatures equals or exceeds the constitutional minimum will the 5 receiving officer then forward the petitions signatures to the county recorder for certification. ¶8 has Id.; A.R.S. § 19-208.02. To effectuate the purpose of § 19.208.04(B) an elector to be allowed to challenge not only the signatures the receiving officer strikes, but also those the county recorder strikes. To read the statutes otherwise is to read them as separate individual and independent provisions without referring to related provisions and would defeat the liberal construction of the recall statutes. Ross, 228 Ariz. at 176, ¶ 8, 265 P.3d at 358; see also Johnson v. Maehling, 123 Ariz. 15, 18, 597 P.2d 1, 4 (1979). More importantly, such a myopic construction would undermine the constitutional guarantee of the people s right to attempt to recall public officials. 7, 265 P.3d at 358. Ross, 228 Ariz. at 176, ¶ Consequently, the Committee can challenge the signatures stricken by the receiving officer and Recorder from the recall petitions signature sheets. B. ¶9 The court also determined that it could not amend the pleadings even though other relief might be available. Our reading of the record suggests that because the court found that the Committee statutory had labeled its special action it verified could not complaint allow the as one for matter to proceed as a regular garden variety special action seeking mandamus relief. 6 ¶10 The action, and Committee it filed thought its it had complaint ten as a days to file statutory its special action because it relied on § 19-208.04(B) to challenge the certification of signatures as the Committee made clear during the appellate oral argument. A reading of the statute reveals that, unlike others, the statute does not suggest that it would be enforceable by mandamus. Compare, e.g., § 19-208.04(B) (providing that an elector may commence an action ) and A.R.S. § 3-1010(B) (West 2012) ( The provisions of this article . . . shall be enforceable by mandamus or other appropriate action in a court of competent jurisdiction. ). Consequently, despite the title of the complaint, it was not a statutory special action. See Ariz. R.P. Spec. Act. 1(b). ¶11 If the complaint could not be a statutory special action because § 19-208.04 did not authorize a direct mandamus action, then general mandamus 2012). it could relief Although independently only the analyze be a pursuant to action A.R.S. § court was not complaint and trial the special that sought 12-2021 (West required statutes for to the Committee, once the Clerk raised the issue, more was required than merely relying on the complaint s title. We do not rely on a title of a statute when interpreting it, see A.R.S. § 1-211(A) (West 2012), and should not rely on any title of a complaint once challenged. 7 ¶12 Moreover, Arizona follows a notice pleading standard, the purpose of which is to give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008) (internal quotation marks omitted). A complaint is sufficient if it provides notice of the claims and the relief sought. See Best v. Edwards, 217 Ariz. 497, 504, ¶ 28, 176 P.3d 695, 702 (App. 2008); Rowland v. Kellog Brown & Root, Inc., 210 Ariz. 530, 533, ¶ 10, 115 P.3d 124, 127 (App. 2005). And, like the requirement to liberally construe recall statutes, our supreme court has directed courts to look to substance rather than to form and to determine cases on their merits rather than on points of procedure. Rodriquez v. Williams, 104 Ariz. 280, 283, 451 P.2d 609, 612 (1969). ¶13 Despite the complaint s title, our reading of the pleading demonstrates that the complaint substantively alleges a mandamus allege cause that individual of the action Clerk signatures and and from relief. Recorder, each recall Paragraphs 16 respectively, petition 19 removed for other [than] those allowed by A.R.S. § 19-121.01(A). and reasons Paragraph 28 expanded the claim to allege that signatures were removed for reasons not included in § 19-121.02(A). Paragraph 30 alleged that the Clerk and the Recorder made determinations that were 8 arbitrary and complaint then capricious sought or an an abuse order of discretion. validating the The individual signatures previously removed by the Clerk or the Recorder for unlawful reasons to allow the recall election to go forward. ¶14 Although the complaint mandamus statute, A.R.S. § did 12-2021, required to cite the statute. not the list the Committee general was not See Toney v. Bouthillier, 129 Ariz. 402, 408, 631 P.2d 557, 563 (App. 1981) ( [F]ailure to make reference to a statute is not fatal to a claim. ). Consequently, our review of the complaint, as a challenge to actions by public officials, indicates that it sufficiently sets forth a special action claim seeking mandamus relief. II ¶15 Finally, the Councilmembers have requested attorneys fees and costs on appeal pursuant to A.R.S. §§ 12-341.01 and -349 (West 2012). 4 not a case They are not entitled to fees because this is involving a contract. Moreover, they are not entitled to fees as a sanction for filing a meritless appeal because it was not meritless. Consequently, we deny their requests for fees and costs. 4 The Councilmembers argued in their brief, and the Clerk reiterated in her argument, that they were indispensible parties, and the fact that they were not joined in this case is another reason to affirm the dismissal. Because we are remanding the matter, the trial court can address the argument from the parties that the court allowed the Councilmembers to participate in the proceeding as intervenors. 9 ¶16 The Committee also requests attorneys fees and costs on appeal pursuant to A.R.S. § 12-2030 (West 2012). request because the Committee has yet to We deny its prevail in the adjudication of its mandamus action. CONCLUSION ¶17 Based jurisdiction to on the address foregoing, the the Committee s trial court challenge to had the certification of the signatures on the recall petitions by both the Clerk, as the receiving officer, and County Recorder, and the complaint provided sufficient notice of the claim and relief sought. Consequently, we reverse the dismissal with prejudice and remand this matter for a hearing to allow the court to determine whether any of the stricken signatures were struck contrary to the applicable statutes. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ________________________________ RANDALL M. HOWE, Judge /s/ ________________________________ MICHAEL J. BROWN, Judge 10

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