McCLUNG v. BENNETT et al

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SUPREME COURT OF ARIZONA En Banc MICHAEL McCLUNG, a citizen and qualified elector in the State of Arizona, Plaintiff-Appellant, v. HON. KEN BENNETT, in his official capacity as Arizona Secretary of State, HON. HELEN PURCELL, in her official capacity as Maricopa County Recorder, MARICOPA COUNTY BOARD OF SUPERVISORS in their official capacity, HON. LAURA DEAN-LYTLE in her official capacity as Pinal County Recorder, PINAL COUNTY BOARD OF SUPERVISORS in their official capacity, HON. F. ANN RODRIGUEZ in her official capacity as Pima County Recorder, PIMA COUNTY BOARD OF SUPERVISORS in their official capacity, HON. SUZANNE SAINZ in her official capacity as Santa Cruz County Recorder, SANTA CRUZ COUNTY BOARD OF SUPERVISORS in their official capacity, HON. ROBYN POUQUETTE in her official capacity as Yuma County Recorder, YUMA COUNTY BOARD OF SUPERVISORS in their official capacity, HON. SHELLY BAKER in her official capacity as La Paz County Recorder, LA PAZ COUNTY BOARD OF SUPERVISORS, in their official capacity, Defendants-Appellees, And ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Arizona Supreme Court No. CV-10-0183-AP/EL Maricopa County Superior Court No. CV2010-019503 O P I N I O N ) ) ) Defendant-Appellee. ) _________________________________ ) JOSEPH SWEENEY, Appeal from the Superior Court in Maricopa County The Honorable John C. Rea, Judge AFFIRMED ________________________________________________________________ WILLIAM EDWARD CONNER, L.L.M. By William Edward Conner Attorneys for Michael McClung El Mirage TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Mary R. O Grady, Solicitor General Barbara A. Bailey, Assistant Attorney General James E. Barton, II, Assistant Attorney General Attorneys for Ken Bennett BARBARA LAWALL, PIMA COUNTY ATTORNEY By Daniel S. Jurkowitz, Deputy County Attorney Attorneys for F. Ann Rodriguez and Pima County Board of Supervisors Tucson MARICOPA COUNTY OFFICE OF Phoenix GENERAL LITIGATION SERVICES By Laurence G. Tinsley, Jr., Senior General Counsel Colleen Connor, Assistant General Counsel Karen J. Hartman-Tellez, Assistant General Counsel Attorneys for Helen Purcell, Maricopa County Board of Supervisors, Laura Dean-Lytle, Pinal County Board of Supervisors, Suzanne Sainz, Santa Cruz County Board of Supervisors, Robyn Pouquette, Yuma County Board of Supervisors, Shelly Baker, and La Paz County Board of Supervisors Joseph Sweeney Tucson In Propria Persona ________________________________________________________________ B E R C H, Chief Justice ¶1 On June 28, 2010, this Court issued an order affirming - 2 - the superior court s judgment in this election case. We now explain the basis for our decision. I. ¶2 FACTUAL AND PROCEDURAL BACKGROUND Michael McClung challenged signatures on Joseph Sweeney s nominating petitions to appear on the ballot for the United States House District 7 (CD-7). qualify for the petitions bearing of Representatives Sweeney Republican 577. needed 381 primary McClung s for valid ballot; Congressional signatures he complaint turned challenged to in 282 signatures, identifying them by petition and line number and stating the reason for each challenge. The county recorders reviewed disqualification the challenged signatures for issued reports to all parties on June 14. and The Pima County Recorder invalidated 188 signatures and the Santa Cruz County Recorder invalidated three, leaving Sweeney with 386 valid signatures, five more than the minimum necessary to qualify for the ballot. ¶3 an Three days later, on June 17, the superior court held evidentiary hearing at which McClung contested nine signatures not disqualified by the Pima County Recorder. For two of the signatures, as alleged in the complaint, McClung disputed that the person signing was registered in CD-7. seven other challenge signatures, without McClung amending his changed complaint - 3 - the or basis otherwise As to of the giving advance notice to the other parties. His complaint alleged that these signatures were not those of registered voters, but at the hearing, he argued for the first time that the seven signatures were from persons who lived out of district. ¶4 In denying McClung s request to invalidate the signatures, the trial judge refused to allow McClung to urge a ground for challenge that is completely challenge alleged in the complaint. different from the Allowing such a challenge, he concluded, would deny due process to Sweeney because he had no advance notice or opportunity to present evidence on the new ground McClung advanced. he reached the merits The judge further observed that, had of the new challenges, he would have invalidated only five of the signatures, leaving Sweeney with 381 valid signatures, just enough to qualify for the ballot. ¶5 We have jurisdiction over McClung s appeal under Arizona Revised Statutes (A.R.S.) § 16-351(A) (2006) and Arizona Rule of Civil Appellate Procedure 8.1(h). II. ¶6 The superior court DISCUSSION judge concluded that McClung s change of theory as the hearing began deprived Sweeney of a meaningful opportunity to prepare a defense. McClung claims that the court erred by so ruling. ¶7 Election challenges must be initiated and completed within an abbreviated time frame to enable public officials to - 4 - check signatures, verify petitions, and print and disseminate ballots within the time limits set by state and federal law. For that reason, nominating among petitions others, that we have presume been the validity signed, circulated, of and filed, and we assign to the party challenging a petition the burden of proving by clear and convincing signature was not that of a qualified elector. evidence that a Jenkins v. Hale, 218 Ariz. 561, 562-63 ¶ 8, 190 P.3d 175, 176-77 (2008). ¶8 But challenging the short nomination time period petitions may allotted not [be for actions permitted to] deprive a defendant of his or her opportunity to present [a] case in opposition to that of the plaintiff. Mandraes v. Hungerford, 127 Ariz. 585, 587-88, 623 P.2d 15, 17-18 (1981). Due process requires that a party have an opportunity to be heard at a meaningful time and in a meaningful manner. Id. at 588, 623 P.2d at 18. ¶9 Any party challenging the nomination of a candidate to office must specify the petition number, line number and basis for the challenge for each signature being challenged. § 16-351(A). challenging McClung 282 did initially signatures. Those specify listed A.R.S. grounds grounds for provided Sweeney with the opportunity to prepare to rebut those grounds at the June attempted to 17 hearing. assert new At the grounds - 5 - hearing, for however, challenging McClung signatures without having given notice to Sweeney or the other parties. ¶10 the The trial judge, who was in the best position to assess situation, prejudicing determined Sweeney by that depriving notice him was of prepare to meet McClung s new allegations. an inadequate, opportunity to See State v. Smith, 215 Ariz. 221, 233 ¶ 55, 159 P.3d 531, 543 (2007) (noting the deference given [to] prejudice process determination). concern. McClung assessments in making a due The record here justifies the judge s had sufficient information, time, and opportunity before the hearing to alert the other parties to the changed grounds for his challenges so that they would have a meaningful opportunity to prepare to rebut them, but he failed to give appropriate notice. ¶11 McClung relies on Lubin v. Thomas, 213 Ariz. 496, 499 ¶ 19, 144 P.3d 510, 513 (2006), to support his argument that one may challenge signatures on any ground of invalidity, whether or not previously raised. He reasons that if a county recorder may take the initiative to strike signatures on grounds not urged by the challenger, then the challenger may also seek to invalidate signatures on grounds not previously specified. ¶12 reasons. McClung s reliance on Lubin is misplaced for several First and foremost, when, as in Lubin, the recorder invalidates a nominating signature, it identifies the reason in a report, which provides all parties - 6 - advance notice and an opportunity to prepare to respond at the hearing on the challenge to the nominating petitions. ¶13 Second, Lubin merely held that the County Recorder, in reviewing challenged nomination petition signatures, may invalidate signatures for legitimate reasons other than those specifically alleged in the challenger s complaint. Id. It does not obligate a county recorder to search for defects other than those asserted by the challenger.1 ¶14 Finally, belatedly nothing identify new in Lubin grounds for notice to the affected candidate. authorizes challenge a party without to giving Under A.R.S. § 16-351(A), the challenger must specify the reasons for challenging particular signatures. The recorders invalidating signatures. reports identify the bases for These procedures provide notice to all parties, permit time to prepare a response, and prevent the ambush that challenges. reasons might otherwise occur at hearings on nomination If the challenger wishes to contest signatures for other than those identified in the complaint or recorders reports, he must notify the affected parties and the court. Here, McClung s failure 1 to advise Sweeney of the Although Lubin does not impose a legal obligation on county recorders to investigate reasons for disqualification in addition to the grounds alleged, we do not suggest that recorders should not do so when time and other circumstances permit, nor would we condone disregard of obvious flaws in petitions, even when not specifically set forth in a challenger s complaint. - 7 - specific grounds of challenge deprived Sweeney of the opportunity to prepare and consequently impaired his right to a fair hearing. ¶15 Apart from the due process concerns, we would deny McClung s appeal for two additional reasons. First, he has not established that the trial court erred in concluding that four of the questioned signatures were valid, which would leave Sweeney with sufficient signatures to qualify for the ballot. See Jenkins, 218 Ariz. at 562-63 ¶ 8, 190 P.3d at 176-77 (noting that challenger bears convincing evidence). the burden of proof by clear and Moreover, McClung s belated prosecution of this appeal, which he filed on the last day of the statutory deadline, would warrant dismissal on the grounds of laches, because his dilatory conduct left Sweeney with only one day to file his response brief, jeopardized election officials timely compliance with statutory deadlines, see A.R.S. § 16-543.01(C) (2006); 42 U.S.C. § 1973ff-1 (2003), and required the Court to decide this matter on an unnecessarily accelerated basis, see Lubin, 213 Ariz. at 497-98 ¶¶ 9-11, 144 P.3d at 511-12 (quoting Mathieu v. Mahoney, 174 Ariz. 456, 459, 460, 851 P.2d 81, 84, 85 (1993) (citation omitted), for proposition that delay may cause courts to steamroll through . . . delicate legal issues in order to meet ballot printing deadlines, which may seriously compromise[] judicial decision making). - 8 - III. ¶16 CONCLUSION For the reasons noted, we affirm the judgment of the trial court. _____________________________________ Rebecca White Berch, Chief Justice CONCURRING: _____________________________________ W. Scott Bales, Justice _____________________________________ A. John Pelander, Justice - 9 -

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