LIBERTARIAN v. PIMA

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NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION ONE PIMA COUNTY COMMITTEE OF THE ARIZONA LIBERTARIAN PARTY, INC., Cross-Claimant/Counterclaimant/Appellant, v. PIMA COUNTY, a political subdivision of the State of Arizona, by and through its Board of Supervisors and County Administrator, CrossDefendant/Appellee; BETH FORD, in her official capacity as Pima County Treasurer, Counterdefendant/Appellee. No. 1 CA-CV 13-0246 FILED 12-26-2013 Appeal from the Superior Court in Pima County No. C20085016 The Honorable Kyle Bryson, Judge AFFIRMED COUNSEL Ellinwood & Francis, LLP, Tucson By Ralph Ellinwood And Risner & Graham, Tucson By William J. Risner Counsel for Counterclaimant/Appellant Slosser Struse Fickbohm Marvel & Fletcher, PLC, Tucson By Ronna L. Fickbohm Counsel for Defendant/Appellee Pima County Rusing Lopez & Lizardi, P.L.L.C., Tucson By Michael J. Rusing Counsel for Pima County Republican Central Committee DeConcini McDonald Yetwin & Lacy, P.C., Tucson By John C. Richardson, Kristen B. Klotz Counsel for Appellee Beth Ford MEMORANDUM DECISION Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined. G E M M I L L, Judge: ¶1 Pima County Committee of the Arizona Libertarian Party, Inc. ( Libertarian Party ) appeals the superior court s dismissal of its claim for failure to state a claim upon which relief can be granted. We affirm. BACKGROUND ¶2 This is the second appeal arising from a challenge to a 2006 Pima County special election that resulted in the adoption of ballot measures concerning a Regional Transportation Authority plan and the imposition of taxes to fund the plan. Following the election, the Pima County Democratic Party sought to enjoin Pima County Treasurer Beth Ford from destroying ballots cast in the 2006 Pima County special election as she would ordinarily have been required to do six months after the election, in accordance with Arizona Revised Statutes ( A.R.S. ) section 16-624(A). In 2008, after a recount and following a final order in the ballot preservation action, Ford filed a petition for declaratory relief, seeking guidance on whether she should continue to preserve the ballots. Ford s 2 LIBERTARIAN v. PIMA Decision of the Court complaint named Pima County and several political parties, including the Libertarian Party, that were represented on the special election ballots. The Libertarian Party then filed a separate Answer and Cross-Claim against Ford and Pima County that alleged election tampering by Pima County. The Libertarian Party cross-claimed, requesting the continued preservation of the ballots from the 2006 special election, that the Libertarian Party receive access to the ballots as part of the on-going investigation into the tampering with ballots, and that the superior court issue an injunction to prevent this unlawful conduct in future elections. ¶3 After Ford and Pima County moved to dismiss the cross1 the court noted that the cross-claim appears to be an election claim, challenge and that the claim did not comply with the statutory jurisdictional time limits for bringing an election challenge. The court stated that it could not otherwise identify a cognizable legal claim, and dismissed the cross-claim. The court later ordered that Ford proceed with destroying the 2006 special election ballots, but on stipulation of the parties, the court stayed its order pending the results of all claims on appeal. ¶4 The Libertarian Party appealed the dismissal, and a panel of this court from Division Two reversed the superior court. See Ford v. Pima Cnty. Comm. Of Ariz. Libertarian Party, Inc., 2 CA-CV 2010-0001, 2010 WL 4296642 (Ariz. App. Oct. 28, 2010) (mem. decision). That decision held that the superior court erred in labeling the Libertarian Party s cross-claim an election challenge because, presuming the Libertarian Party prevailed on its claim, granting injunctive relief would not set aside the result of the 2006 special election. Id. at *3, ¶ 10. The holding specifically declined to resolve whether the Libertarian Party s cross-claim actually stated a justiciable claim for injunctive relief. Id. at *5, ¶ 18. ¶5 Litigation continued after remand. The Libertarian Party disclosed that it sought graphic scanning of all ballots cast and the provision of those images to the public[.] Pima County cited to the Pima County s Answering Brief correctly points out that the Libertarian Party s claim against Ford is technically a counterclaim, while the claim against Pima County is a cross-claim. Because the Libertarian Party s claim is primarily against Pima County and because the Libertarian Party denominated its motion as a cross-claim, we use the term cross-claim in this decision. 1 3 LIBERTARIAN v. PIMA Decision of the Court Arizona Attorney General s Office s investigation and report confirming the results of the 2006 special election, and requested that the superior court dismiss the Libertarian Party s cross-claim on the basis that it failed to state an actionable claim. ¶6 The superior court granted Pima County s motion, holding that a decision whether to require the requested relief of prospective graphic scanning of ballots is a matter more appropriately determined through the legislative process rather than through the courts. The court noted that the most it could do would be to issue orders that Pima County follow the law, which it declined to do. Accordingly, the court found that there is no pending claim for which relief can be granted, dismissed the cross-claim, and entered judgment. The Libertarian Party appeals the dismissal of its cross-claim, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). ANALYSIS ¶7 The Libertarian Party presents four issues on appeal, two of which are inadequately briefed pursuant to Arizona Rule of Civil Appellate Procedure 13(a)(6). Moreover, the four issues viewed as a whole appear to present only two issues, which we analyze in turn. To the extent other issues are asserted, they are waived. See State v. Moody, 208 Ariz. 424, 452 n. 9, ¶ 101, 94 P.3d 1119, 1147 n. 9 (2004) ( Merely mentioning an argument [in an opening brief] is not enough. ). I. Rule 12(b)(6) Motion to Dismiss ¶8 The Libertarian Party argues that the superior court erred in granting Pima County s motion to dismiss for failure to state a justiciable claim. See Ariz. R. Civ. P. 12(b)(6). We review de novo a complaint s dismissal for failing to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). Arizona follows a notice pleading standard. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008). Courts must look only to the pleading itself when deciding a Rule 12(b)(6) motion, and they must likewise assume that wellpled factual allegations are true. Id. at ¶¶ 6-7. Mere conclusory statements cannot establish a claim, and courts may consider a complaint s exhibits or public records regarding matters referenced in the complaint in deciding whether to grant a Rule 12(b)(6) motion. Coleman, 230 Ariz. at 356, ¶ 9, 284 P.3d at 867. Ultimately, a Rule 12(b)(6) motion for dismissal will be granted only when as a matter of law . . . plaintiffs 4 LIBERTARIAN v. PIMA Decision of the Court would not be entitled to relief under any interpretation of the facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. State, Dep t of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). ¶9 The Libertarian Party initially sought, at the superior court, a court-initiated investigation into alleged ballot-tampering, which later included a request that the ballots at issue be graphically scanned. The Libertarian Party justified seeking this relief by claiming it was proper as an extension of election monitoring functions granted to political parties under A.R.S. §§ 16-602 and -603. On appeal, the Libertarian Party argues that it seeks several types of relief, [including] an injunction requiring the graphic scanning of all ballots cast. Although the Libertarian Party s opening brief states that [t]here has not been a specific remedy yet urged by the Libertarian Party, its reply brief urges this court to hold that injunctive relief is proper in this case pursuant to the principles of equity as articulated in A.R.S. § 12-1801(3). ¶10 In the minute entry dismissing the Libertarian Party s claim, the superior court noted that [f]or the Court to be able to issue an injunction there must be an underlying act to enjoin. Implying that no such underlying act existed in this case, the superior court declined to issue orders that Pima County follow the law. The superior court further concluded that the Libertarian Party s claim must fail because the posture in which this case now stands is such that there is no pending claim for which relief can be granted. ¶11 The superior court correctly noted that injunctive relief requires an underlying act to enjoin. See A.R.S. § 12-1801(1)-(2); Dowling v. Stapley, 218 Ariz. 80, 87, ¶¶ 19-23, 179 P.3d 960, 967 (App. 2008). Although trial courts are empowered to fashion injunctions as equitable remedies, injunctive relief exists either to compel parties toward some action or to prevent ongoing harmful action. See Ahwatukee Custom Estates Management Ass n, Inc. v. Turner, 196 Ariz. 631, 635, ¶¶ 9-10, 2 P.3d 1276, 1280 (App. 2000) (discussing equitable considerations for issuing injunctions and types of behavior justifying injunctions); TP Racing, L.L.L.P. v. Simms, 232 Ariz. 489, 495, ¶ 21, 307 P.3d 56, 62 (App. 2013) ( An injunction may serve to undo accomplished wrongs, or to prevent future wrongs that are likely to occur. ); see also A.R.S. § 12-1801. ¶12 In this case, the Libertarian Party has not sufficiently identified an action that injunctive relief would remedy. Instead, it relies on notions of equity and pronouncements on the importance of the 5 LIBERTARIAN v. PIMA Decision of the Court election process to argue that the court should allow its claim to move forward. Although we take the allegations of the Libertarian Party s complaint as true, 2 we have already held and the Libertarian Party agrees that its claim is not an election challenge. See Ford, 2010 WL 4296642 at *3, ¶10. The Libertarian Party s briefs do not cast any further light on the nature of its claim, except to express a concern that Pima County will, it believes, cheat again in future elections. But it is not at all clear how cheating allegedly occurred in the 2006 special election. The Libertarian Party argues that this lack of clarity is why its claim must proceed to trial, despite agreeing that its claim is not an election challenge. ¶13 Because it is not an election challenge, Libertarian Party s cross-claim is essentially a legal argument disguised as an equitable claim seeking to expand its legal authority to monitor elections in Arizona. As the Libertarian Party stated in its opening brief, The Libertarian Party seeks to ensure the fairness of future elections by prohibiting the processes which currently facilitate cheating. The integrity of elections is undoubtedly important, and allegations of improprieties, as the superior court noted, must be taken seriously. Indeed, Arizona has recognized the need to maintain the integrity of elections by enacting a wide range of statutes to protect our election process from tampering, fraud, and corruption. See A.R.S. §§ 16-452, -671-678, -1001-1021. Those statutes provide remedies, including investigation and recounting by the Attorney General s Office. With the Attorney General s affirmation of the 2006 election s result, the procedures implemented by the legislature have run their course. The Libertarian Party s dissatisfaction with the statutory procedures in place to investigate election tampering does not establish a justiciable claim in law or equity. See Chavez v. Brewer, 222 Ariz. 309, 31819, ¶ 29, 214 P.3d 397, 406-07 (App. 2009); cf. Chambers v. United Farm Workers Organizing Committee, AFL-CIO, 25 Ariz. App. 104, 107, 541 P.2d 567, 570 (App. 1975) (holding that a grievance is more than mere dissatisfaction with the state of the law which results from the judgment. ). ¶14 Moreover, the Libertarian Party s requested relief essentially asks the court to impose a mechanism to require that Pima County obey the law in future elections. But as the superior court noted, Fidelity Sec. Life Ins. Co., 191 Ariz. at 224, ¶ 4, 954 P.2d at 582 ( In reviewing a trial court's decision to dismiss a complaint for failure to state a claim, we assume as true the facts alleged in the complaint[.] ). 2 6 LIBERTARIAN v. PIMA Decision of the Court such obey the law injunctions are improper because Pima County is already obligated to follow the law. See NLRB v. Express Pub. Co., 312 U.S. 426, 435-36 (1941); see also West Valley View, Inc. v. Maricopa Cnty. Sheriff s Office, 216 Ariz. 225, 228, ¶ 11, 165 P.3d 203, 206 (App. 2007) (observing that courts are generally hesitant to order a defendant to obey a law in the future ). By failing to allege a specific continuing pattern of objectionable behavior, the Libertarian Party has not stated a claim. See Dowling, 218 Ariz. at 87, ¶¶ 21-23, 179 P.3d at 967 (failing to allege action to be enjoined negates the possibility of an injunction as a remedy). Rather, it asks the court to devise a claim and remedy in equity on its behalf. We conclude that the superior court did not err by acknowledging the valid legal processes put in place by the legislature and declining the Libertarian Party s request for judicially imposed procedures to oversee the election process. II. Motion for New Trial ¶15 Libertarian Party further argues that the superior court erred by not granting its motion for a new trial. We review the denial of a motion for new trial under an abuse of discretion standard. State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996). Trial courts have broad discretion in deciding motions for new trial, and we will affirm a decision that is not clearly an abuse of discretion or legally erroneous. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009). ¶16 The Libertarian Party argues that the superior court abused its discretion by denying its motion for a new trial because the court based its ruling on an erroneous legal standard. For the same reasons we affirm the granting of Pima County s motion to dismiss the Libertarian Party s cross-claim, we also conclude that the superior court did not abuse its discretion by denying the motion for new trial. CONCLUSION ¶17 We affirm the judgment of the superior court. :mjt 7

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