MATTHEW WAKELY v TODD HOWARD et al (Decision Order)

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SUPREME COURT OF ARIZONA MATTHEW WAKELY, ) ) Plaintiff/Appellee, ) ) v. ) ) TODD HOWARD, et al., ) ) Defendants/Appellants. ) ) __________________________________) Arizona Supreme Court No. CV-22-0110-AP/EL Maricopa County Superior Court No. CV2022-004817 FILED 5/9/2022 DECISION ORDER The Court, by a panel consisting of Chief Justice Brutinel, Justice Lopez, Justice Beene, and Justice King, has considered the parties’ briefs, the record, the trial court’s minute entry order, and the relevant statutes and case law in this expedited election matter. In nomination primary 2022, Appellant petition ballot for Todd Howard signatures to appear the of State office timely on submitted the Senator Republican in Arizona Legislative District 8. On Verified April 18, Complaint 2022, for Appellee Special Matthew Wakely Action/Injunctive filed a Relief challenging the number of signatures submitted by Mr. Howard as insufficient and disputing Mr. Howard’s eligibility to serve in the Legislature under Ariz. Const. Art. IV, Part 2, Section 2 Arizona Supreme Court No. CV-22-0110-EL/AP Page 2 of 6 (“No person shall be a member of the Legislature unless he... shall have been a resident of Arizona at least three years and of the county from which he is elected at least one year before his election.”). Application for On Order April to 22, Show 2022 Cause Mr. and Wakely for filed an Preliminary and Permanent Injunctive Relief. On April 22, 2022, Mr. Howard filed a Motion to Dismiss the Verified Complaint for Special Action/Injunctive Relief and Application for Order to Show Cause and for Preliminary and Permanent Injunctive Relief. On April evidentiary 25, hearing Action/Injunctive 2022, on Relief. the Superior Court the Complaint After considering conducted for the an Special evidence, pleadings, and testimony and taking the matter under advisement, the Superior Court entered its Findings of Fact, Conclusions of Law and Order. It found that Mr. Howard needed a minimum of 449 valid signatures, and that he had successfully submitted 485 valid signatures. However, it also found that Mr. Howard will not have been a resident of Arizona for three consecutive years immediately preceding the November 2022 Election because he was a resident of Maryland as of October 2020 when he voted in that state in the 2020 General Election. Therefore, Mr. Howard was ineligible to serve in the Arizona Legislature under Ariz. Const. Art. IV, Arizona Supreme Court No. CV-22-0110-EL/AP Page 3 of 6 Part 2, Section 2. See Bearup v. Voss, 142 Ariz. 489 (App. 1984). The Superior Court granted the requested injunctive relief, enjoining the Arizona Secretary of State, Recorders and Board of Supervisors of Maricopa County from printing the name of Todd Howard on the ballot for the Republican nomination for State Senate for Legislative District 8. Mr. Howard’s Motion to Dismiss and request for taxable costs under A.R.S. § 12-1840 were denied. Mr. Howard appealed. The Court has considered the briefs and authorities in this appeal and agrees with the Superior Court that Mr. Howard does not meet the residency requirement. IT IS ORDERED affirming the trial court decision. The trial court’s factual findings concerning Mr. Howard’s residency are not clearly erroneous, nor are they disputed. The trial court found that Mr. Howard was a registered voter in the State of Maryland and voted in Maryland in the General Election in October 2020 and therefore could not have been a resident of Arizona as of that date. Viewed in the light most favorable to upholding the court’s decision, findings, and we must accept them. the record supports those Ariz. R. Civ. P. 52(a)(6). Moreover, Mr. Howard’s brief acknowledges that, “[d]espite his 37 years of citizenship in Arizona Howard was a resident of Maryland in 2020 through as recently as October 2021.” Arizona Supreme Court No. CV-22-0110-EL/AP Page 4 of 6 We have no basis for overturning the trial court’s ruling unless it is legally incorrect, an issue we review de novo. See City of Phoenix v. Glenayre Electronics, Inc., 242 Ariz. 139, 142 ¶ 9 (2017) (we review legal issues de novo). Reviewing interpretation this de novo, legal the issue Court of declines constitutional to revisit the holding of Bearup v. Voss, supra, that Ariz. Const. Art. IV, Part 2, Section 2 requires an Arizona legislator to have been a resident of Arizona for three consecutive years immediately prior to the election in question. Mr. Howard’s contentions are the same as were addressed in Bearup, 142 Ariz. at 490-491. They were rejected in a well-considered analysis as follows: We find the Supreme Court's holding in Triano v. Massion, 109 Ariz. 506, 513 P.2d 935 (1973), persuasive and dispositive. In Triano, the appellant sought election to the Tucson City Council. The City Charter provided that a candidate for the office of councilman must be a resident of Tucson “for not less than three years immediately prior to becoming a candidate” and, further on in the same paragraph, required that a candidate must have resided in his ward “at least one year prior” to becoming a candidate. The appellant argued that, although he had not lived in the ward from which he was seeking election for one year immediately prior to becoming a candidate, he satisfied the requirement because he had resided within the ward for more than a year approximately seven years earlier. The court held that the residency requirement withstood constitutional muster, noting that the State has a compelling interest in preventing frivolous and fraudulent candidacy by persons who have no previous exposure to the problems and desires of the electorate of a representative district. The court concluded that Triano's construction of the residency provision as requiring only that a candidate be a resident of the Arizona Supreme Court No. CV-22-0110-EL/AP Page 5 of 6 ward for any one-year period prior to becoming a candidate would constitute “an unreasonable and constrained construction” of the charter provision. 109 Ariz. at 510, 513 P.2d at 939. Bearup, 142 Ariz. at 491 (emphasis in original). We find the above analysis even more compelling in this case, where the three-year requirement of residency within the State is found in the same provision as the one-year requirement of residency within the county. Construction of the three-year requirement of residency within the State as appellant urges would necessitate a construction of the one-year requirement of residency within the County as merely requiring residency within the county for one year at any time in the past. This Court has already rejected that construction as “unreasonable”, and we do so here. Therefore, after consideration, IT IS FURTHER ORDERED that the Arizona Secretary of State and the Recorders and Board of Supervisors of Maricopa County are enjoined from printing the name of Todd Howard on the ballot for the Republican nomination for State Senate for Legislative District 8 for the August 2022 primary election. DATED this 9th day of May, 2022. /s/ ROBERT BRUTINEL Chief Justice Arizona Supreme Court No. CV-22-0110-EL/AP Page 6 of 6 TO: Timothy A LaSota Jonathan Simon Joseph Eugene La Rue Joshua David Rothenberg Bendor Hon. Peter A Thompson Hon. Jeff Fine Alberto Rodriguez Alicia Moffatt Todd Howard John S. Bullock Amy B Chan Noah Gabrielsen

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