SHANE NOEL JONES, A QUALIFIED ELECTOR; VICTORIA CRANFORD, A QUALIFIED ELECTOR AND RESIDENT OF GRAHAM COUNTY v. RESPECT THE WILL OF THE PEOPLE: GRAHAM COUNTY VOTERS & THE ARIZONA PUBLIC INTEGRITY ALLIANCE ENCOURAGES A NO VOTE ON MASSIVE MARIJUANA EXPANSION IN OUR AREA, REAL PARTY IN INTEREST GEORGE KHALAF, AS ITS CHAIRMAN; WENDY JOHN, IN HER OFFICIAL CAPACITY AS GRAHAM COUNTY RECORDER; HANNAH DUDERSTADT, IN HER OFFICIAL CAPACITY AS DEPUTY CLERK/ELECTIONS DIRECTOR; DANNY SMITH, PAUL R. DAVID, AND JOHN HOWARD, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF SUPERVISORS FOR GRAHAM COUNTY
No. 2 CA-CV 2022-0065
ARIZONA COURT OF APPEALS DIVISION TWO
August 25, 2022
The Honorable John R. Hannah Jr., Judge
Appeal from the Superior Court in Graham County. Nos. S0500CV202100076 and S0500CV202100077 (Consolidated)
AFFIRMED
COUNSEL
Herrera Arellano LLP, Phoenix
By Roy Herrera, Daniel A. Arellano, and Jillian L. Andrews
and
Snell & Wilmer L.L.P., Phoenix
By Colin P. Ahler
Counsel for Plaintiffs/Appellants
Rose Law Group PC, Scottsdale
By Logan V. Elia and John H. Sud
Counsel for Defendants/Appellees
OPINION
Vice Chief Judge Staring authored the opinion of the Court, in which Chief Judge Vasquez and Judge Brearcliffe concurred.
¶1 In this expedited election appeal, Shane Jones and Victoria Cranford (collectively, Jones) challenge the trial court‘s final judgment in favor of Respect the Will of the People: Graham County Voters & The Arizona Public Integrity Alliance Encourages a No Vote on Massive Marijuana Expansion in Our Area; its chairman, George Khalaf; and various Graham County officials (collectively, RWP), denying Jones‘s request for injunctive relief and permitting referendum petition REF-02-2021 to be placed on the November 2022 ballot.1 Jones raises two рrincipal issues on appeal: (1) whether the court erred in concluding the petition complied with
Factual and Procedural Background
¶2 In June 2021, the Graham County Board of Supervisors approved the rezoning of a portion of land from “general use” to “unlimited manufacturing” for the purpose of establishing a medical marijuana cultivation facility. The following month, RWP filed a referendum petition (designated as REF-02-2021) opposing the rezoning and referring the mаtter to Graham County voters in the November 2022 election. Later that month, RWP submitted 2,288 signatures supporting the petition. In August 2021, after verifying randomly selected signatures, the Graham County Recorder certified the petition for the ballot.
¶3 Also in August, Jones filed a verified complaint pursuant to
¶4 RWP subsequently filed a motion to dismiss Jones‘s complaint. First, RWP argued Jones was bаrred by the statute of limitations from challenging the signatures on the referendum petition. Second, regarding the allegation that the petition was “misleading,” RWP asserted Jones had failed to state a claim upon which relief could be granted. Further, RWP maintained that the petition “strictly complies with the relevant statutes” because it included the “entire name of the Rezoning Application as described in the Board‘s official meeting minutes,” consistent with
¶5 Shortly thereafter, Jones filed a motion for summary judgment on the signature challenge. The parties agreed that RWP needed 1,064 signatures to place the referendum petition on the ballot and that it had collected 2,288 total signatures. Jones, however, maintained that 1,308 of the signatures were “statutorily deficient,” leaving only 980 that were valid. Jones reasoned that 230 signatures were “invalid based on facial deficiencies or lack of a corresponding voter registration record [in] Graham County.” Jones further asserted that 1,077 signatures were “deficient” because the circulator who had collected them, Keith Leonard, “issued a false circulator affidavit about where he lived.”3
¶6 After oral argument, the trial court denied the motion for summary judgment as to the 1,077 signatures affected by the circulator challenge, finding Leonard‘s address to be a factual question. The court also denied the motion as to ninety-three signatures that had addresses on the referendum petition that did not match those in the voter rolls and as to six signatures that had a missing year in the date line. But the court granted the motion for summary judgment as to eighty-seven signatures not appearing in the Graham County voter rolls, thirty-one signatures with missing or illegible information, ten signatures that listed a post-office box instead of a residential address, three signatures with a date-related deficiency, and ten signatures that were duplicative.4
¶7 In April 2022, the trial court held a bеnch trial to address the remaining issues. After considering the evidence and argument, the court found that the address Leonard had listed on the circulator affidavit was not his “actual residence” and, therefore, it concluded all the petition sheets circulated by Leonard were invalid.
¶8 The trial court then heard argument concerning the remaining signature issues. Jones asserted that, during trial preparations, he had discovered an additional twelve signatures that were not in the Graham County voter rolls and argued that they should be covered by the court‘s earlier grant of summary judgment on that issue. According to Jones, taking those additional signatures into account would mean RWP had failed to meet the 1,064 threshold. The court ordered Jones to file a supplemental motion for summary judgment and RWP to respond in order to give both parties time to review the signatures and the calculation.
¶10 In response, RWP conceded that the twelve signatures raised in the supplemental motion “were not those of registered voters in Graham County.”5 But RWP pointed out that of the ten signatures the trial court had originally struck as duplicates pursuant to the initial motion for summary judgment, seven were duplicative of signatures Leonard had obtained. Thus, RWP argued, when the court struck the Leonard signatures, “the copies of the 7 signatures that were gathered by other circulators and previously eliminated as duplicates [were] now the only valid signatures from those voters.” (Emphasis omitted.) Adding those seven to the 1,062 Jones had conceded were valid, RWP reasoned there were 1,069 valid signatures, exceeding the requirement of 1,064. RWP also identified an additional twenty-two signatures that had been “misrepresented” in the initial motion for summary judgment and should not have been disqualified.
¶11 In reply, Jones argued that RWP was asking “to re-open this entire case” by contesting “scores of . . . signature-specific objections that have long been disclosed and were squarely raised in [the initial] motion for summary judgment.” Jones asserted RWP had “waived any arguments
concerning signatures already deemed invalid” because it had not challenged them as part of the initial motion for summary judgment. Jones further asserted that he would suffer “immeasurable prejudice” by having to relitigate these issues. As to the seven duplicate signatures, Jones explained that the individuals had signed Leonard‘s petition first and he had sought summary judgment on the “second-in-time signature,” such that both signatures should be disqualified. (Emphasis omitted.)
¶12 In May 2022, the trial court issued its under-advisement ruling denying Jones‘s request for injunctive relief. The court concluded RWP had waived its argument concerning the twenty-two signatures that were “misrepresented” in the initial motion for summary judgment. But, the court determined that RWP had not waived its argument about the seven duplicate signatures because it could not have been raised sooner and that there was “no legal basis for disqualifying those signatures.” This resulted in 1,070 valid signatures, and the referendum petition qualified for the ballot. In June 2022, the court entered a final judgment incorporating its prior minute entries and rulings, and this appeal followed.
Standard of Review
¶13 We review a trial court‘s decision on a request for injunctive relief for an abuse of discretion. Parker v. City of Tucson, 233 Ariz. 422, ¶ 11 (App. 2013). However, we review questions of law concerning the interpretation and application of referendum statutes de novo. Arrett v. Bower, 237 Ariz. 74, ¶ 7 (App. 2015).
Compliance with § 19-101(A)
¶15 Jones first argues the trial court erred in dismissing his challenge to the text of the referendum petition. Specifically, he maintains that RWP‘s petition “plainly does not comply” with
¶16 Section
Petition for Referendum
To the secretary of state (or to the corresponding officer for or on local, county, city or town measures):
We, the undersigned citizens and qualified electors of the state of Arizona, respectfully order that the senate (or house) bill No. _____ (or other local, county, city or town measure) entitled (title of act or ordinance, and if the petition is against less than the whole act or ordinance then set forth here the item, section, or part, of any measure on which the referendum is used), passed by the ________ session of the legislature of the state of Arizona, at the general (or special, as the case may be) session of said legislature, (or by a county, city or town legislative body) shall be referred to a vote of the qualified electors of the state, (county, city or town) for their approval or rejection at the next regular general election (or county, city or town election) and each for himself says . . . .
(Emphasis added.)
¶17 RWP‘s referendum petition stated:
Petition for Referendum
To the Graham County Election Director:6
We, the undersigned citizens and qualified electors of the state of Arizona, respectfully order that the Zone Map Change REZ#832-21 (APN 114-19-008D), entitled “Zone Map Change REZ#832-21 (APN 114-19-008D). Request is to change the present “A” (General Land Use) Zone, site 5-6, to “M-X” (Unlimited Manufacturing Land Use) Zone for the purpose of operating offsite cultivation facility for medical marijuana dispensaries
within existing greenhouse on property. Applicant is Heather Dukes. Site address is 26050 S. NatureSweet Ave., Willcox, AZ.“, passed by the Graham County Board of Supervisors at the June 21, 2021 regular Board of Supervisors’ meeting and ratified at the June 28, 2021 regular Board of Supervisors’ meeting, shall be referred to a vote of the qualified electors of the county for their approval or
rejection at the next regular county election and each for himself says . . . .
(Emphasis added.)
¶18 In granting the motion to dismiss on this issue, the trial court explained that
¶19 On appeal, Jones argues the trial court “misunderstood”
¶20 “Our goal in interpreting statutes is to give effect to the intent of the legislature.” Sell v. Gama, 231 Ariz. 323, ¶ 16 (2013) (quoting Est. of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 8 (2011)). “If a statute‘s language is clear and unambiguous, we apply it without resorting to other methods of statutory interpretation.” Hayes v. Cont‘l Ins. Co., 178 Ariz. 264, 268 (1994). Statutes “should be construed together with other related statutes,” even if they “contain no reference one to the other.” State ex rel. Larson v. Farley, 106 Ariz. 119, 122 (1970). However, “the expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed.” Pima County v. Heinfeld, 134 Ariz. 133, 134 (1982); see also Welch v. Cochise Cnty. Bd. of Supervisors, 251 Ariz. 519, ¶ 36 (2021) (applying this canon of construction to conclude legislature intentionally excluded remedies).
¶21 Section
¶22 At issue here was a county measure, specifically, a rezoning request, REZ#832-21, which the Graham County Board of Supervisors approved in June 2021. See
¶23 RWP nevertheless argues that when
For the purposes of this article and article 4 of this chapter, the measure to be attached to the petition as enacted by the legislative body of an incorporated city, town or county means the adopted ordinance or resolution signed by the mayor or the chairman of the board of supervisors, as appropriate, and signed by the clerk of the municipality or the clerk of the board, as appropriate, or, in the absence of a written ordinance or resolution, that portion of the minutes of the legislative body that is approved by the governing body and filed with the clerk of the governing body and that reflects the action taken by that body when adopting the measure. In the case of zoning measures, the measure shall also include a legal description of
the property and any amendments made to the ordinance by the legislative body.
¶24 Even assuming we must construe the two statutes together, see Larson, 106 Ariz. at 122; Heinfeld, 134 Ariz. at 134, we find RWP‘s argument unpersuasive. Section
¶25 Next, Jones asserts that strict compliance with
¶26 In Sklar, which was decided in November 2008, this court noted that “[o]ur supreme court has consistently held that a referendum petition must ‘comply strictly with applicable constitutional and statutory provisions.‘” 220 Ariz. 449, ¶ 9 (quoting Sherrill v. City of Peoria, 189 Ariz. 537, 540 (1997)). But, we also noted that our legislature had expressly
directed, in a note to
¶27 As a starting point, we determine whether Sklar‘s prоposition that we must broadly construe the terms used in the referendum statutes can coexist with the explicit requirements of
¶28 That said, the proposition that we broadly interpret terms used in the statutory requirements for referendums was based on a prior note to
(“Under the rules of statutоry construction, when the legislature modifies the language of a statute, there is a presumption that a change in the existing law was intended.“). Thus, the proposition that we broadly construe the terms in the referendum statutes appears to be no longer good law. The trial court therefore erred in concluding that the rule of strict compliance does not apply here. See Romer-Pollis v. Ada, 223 Ariz. 300, ¶ 12 (App. 2009) (court abuses discretion by committing error of law).
¶29 However, we decline to conclude that the presence of any surplus information on a referendum petition automatically negates strict compliance under
¶30 RWP‘s referendum petition contained the required information under
¶31 In sum, we conclude that the form of a referendum petition must strictly comply with
Sufficient Valid Signatures
¶32 Jones next contends that the “trial court erred in granting post-trial judgment” for RWP on the signature challenge. Speсifically, he raises three issues: (1) the court “failed to shift the burden of proof to [RWP] to prove the validity of signatures containing mismatched addresses“; (2) RWP “waived its post-trial argument to revive seven ‘duplicate’ signatures that [it had] conceded, during summary judgment briefing, were invalid“; and (3) the court misinterpreted “the duplicate signature prohibition in
¶33 The first issue concerns ninety-three signatures with an address on the referendum petition that did not match the signer‘s address in the voter registration records. Below, Jones presented evidence of these mismatched addresses in his motion for summary judgment. In response, RWP asserted, in a footnote, that “[i]t is not clear that a failure to update a voters’ registration address automatically invalidatеs their signing of a referendum petition.”
¶34 In denying the motion for summary judgment on these signatures, the trial court stated:
As to the signatures for which the addresses do not match the voter registration, the court finds that those signatures are presumed to be valid. The requirement is that those people be qualified electors. By identifying those people as being potentially the same people, who have simply moved within Graham County, the plaintiffs implicitly concede the likely validity of those signatures.
Also, the petition calls for the “current residence address” of the signers. It‘s difficult for the court to see how it‘s fair to presume a signature invalid where the signer provided exactly the information the sign[e]r was instructed to provide.
. . . .
. . . [T]he рlaintiffs are free to present evidence to the court, or argue to the court
based on the evidence that‘s already present in the record, that those signatures should not count. At this point the court cannot say that those 93 signatures are either valid or invalid.
¶35 On appeal, Jones maintains that his “position is not that a signature is invalid simply because an otherwise qualified elector has moved after signing.” Rather, he argues, “[I]t is impossible to determine, on the face of the petition vis-à-vis voter registration rolls, whether the John Smith who signed the petition as a resident of 123 Main Street is a qualified elector if no John Smith is registered at that address.” Because “[i]t is uncontested that, as to dozens of signers, no voter by the sаme name appeared registered at the address listed on the petition,” Jones reasons that this “discrepancy displaced the presumption of validity as to these signatures and shifted the burden to [RWP] to re-establish their validity.”
¶36 In support of his burden-shifting argument, Jones relies on Jenkins v. Hale, 218 Ariz. 561, ¶ 23 (2008), and McKenna v. Soto, 250 Ariz. 469, ¶ 18 (2021). But these cases are distinguishable. Procedurally, neither case was before the trial court on summary judgment. See Jenkins, 218 Ariz. 561, ¶ 4; McKenna, 250 Ariz. 469, ¶ 1. Substantively, Jenkins involved signatures that listed a post-office box, rather than the required residential address, 218 Ariz. 561, ¶ 18, while McKenna involved signatures with incomplete dates, 250 Ariz. 469, ¶ 15. Both cases, therefore, involved issues that were facially fatal.
¶37 “In Arizona, a summary judgment motion sets in play shifting burdens.” Nat‘l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 12 (App. 2008). The moving party bears the initial burden of showing “there are no genuine issues of material fact and it is entitled to summary judgment as a matter of law.” Id. “Only if the moving party satisfies this burden will the party opposing the motion be required to come forward with evidence establishing the
¶38 As RWP points out, the only evidence Jones presented in support of his claim as to these ninety-three signatures was the mismatched addresses in the voter rolls. The trial court seemed to suggest that Jones had failed to meet his initial burden because the signеrs listed an address that was presumably their “current residence address,” regardless of what address they had previously used when registering to vote. We agree that, despite different addresses being listed in the voter registration records, there is nothing facially fatal about these signatures. See
¶39 The second and third issues concern seven duplicate signatures that were collected by Leonard and a separate circulator. These signatures were part of the ten signatures the trial court had disqualified under the initial motion for summary judgment. At that time, the court denied the motion for summary judgment on Leonard‘s circulator affidavit. After the court had invalidated all the petition sheets circulated by Leonard at trial, and after the court had granted the parties leave to file supplemental pleadings on the additional twelve signatures that were not in the voter rolls, RWP raised this new issue with respect to the seven duplicate signatures. RWP maintained that because the court had invalidated the signatures on the Leonard petitions, the duplicate signatures, collected by a different circulator, should not bе disqualified.
¶40 The trial court agreed with RWP, explaining that there was “no legal basis for disqualifying” the seven signatures after the Leonard petitions had been disqualified. The court explained that it was not going to treat this argument as waived because it “could not have been made in response to the pre-hearing summary judgment motion,” given that the Leonard petitions had not yet been struck. The court further determined that RWP had timely raised the issue because “no final ruling was made at the hearing.” The court further pointed out that Jones had a “full and fair opportunity to be heard in response.”
¶41 On appeal, Jones reurges his argument that RWP waived any issue related to these seven signatures. He points to caselaw discussing partial summary judgment rulings and “the need for parties to be able to rely on those rulings in preparing for trial.” And, Jones maintains he focused his “trial preparation and presentation on evidence showing that the address that Leonard listed on his petition sheets was not his actual residence” and “did not present evidence concerning the 93 signatures containing mismatched addresses, as this would have been superfluous.”
¶42 The rule of waiver “is a rule of prudence, not of jurisdiction.” City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, n.9 (2005). When good reason exists, a court may entertain waived issues. Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406 n.9 (1995). Whether to apply the doctrine of waiver is largely a discretionary decision for the court considering it. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987).
¶43 At the hearing on the motion for summary judgment, the trial court entered its orders in an unsigned minute entry. As the court pointed out, its orders were therefore subject to change. See
¶44 It is significant that Jones was afforded an opportunity to respond to RWP‘s argument — and in fact did so — through his reply in support of his supplemental motion for summary judgment. See Stokes v. Stokes, 143 Ariz. 590, 592 (App. 1984) (doctrine of waiver intended to prevent surprise). In addition, the trial court allowed Jones to present arguably tardy evidence about the additional twelve signatures of individuals who were not in the voter rolls that, Jones maintained, should be disqualified pursuant to the court‘s earlier grant of summary judgment. Cf. State v. Ross, 166 Ariz. 579, 584 (App. 1990) (“essential fairness” underlies system of justice). We therefore cannot say the court abused its discretion in declining to deem this argument waived. See Hawkins, 152 Ariz. at 503.
¶45 The final issue concerns
¶46 Below, Jones argued, “[I]f a person signs a referendum petition more than once, only the first signature collected by that person should be eligible to be counted.” And, according to Jones, with respect to the seven signatures, because those individuals signed Leonard‘s petition first, the first was invalid based on the false circulator affidavit and the second was invalid as being a duplicate. The trial court disagreed, explaining
¶47 On appeal, Jones again contends that
¶48 Section
Conclusion
¶49 For the foregoing reasons, we affirm the trial court‘s denial of Jones‘s request for injunctive relief, permitting referendum petition REF-02-2021 to be placed on the November 2022 ballot.