Van Riper v. Threadgill

cross-examination and rebuttal other ex- 905 P.2d 589 perts. It accompanied by need not be RIPER, Louise VANW. a resident of possi- disclaimer or statistical evidence of the Carefree, Arizona, the Town of bility majority effectively of error. The Plaintiff-Appellant, DNA-opinion stipulated treats evidence as fact, perhaps frighteningly is so compelling, appears argue in the THREADGILL, capacity Diane in her competent absence statistical evidence on Town Clerk for the Town of error, possibility opinion substantive Arizona; Carefree, Arizona, Town of meaningless evidence unless it can be municipal corporation, Defendants-Ap- proven certainty. true with absolute pellees, Second, majority juries intimates that accept expert will opinion without reserva- Investments, general Tri-C tion. implication ignores the defendant’s partnership, Intervenor. ability, through the use of cross-examination expert No. 1 testimony, rebuttal CA-CV 95-0195. to refute the Moreover, expert(s). assuming state’s even Arizona, Appeals Court testimony that the DNA was tantamount to a 1, Department Division E. statement of probability, the random match majority overlooks the fact that DNA Aug. 1995. probability random match “says nothing Bible, Review Denied Nov. guilt about or innocence.” 175 Ariz. at 582 n. (quoting P.2d at 1185 n. 18 Dr. Laboratories).

Lisa Forman of Cellmark

Finally, majority postulates that “the defendant is the source DNA” is damaging crime-scene

than the statement odds that “the

defendant is not the source of the crime- simply

scene DNA are million-to-one.”

disagree presumption. with that purpose testing of DNA is to deter-

mine, first, whether someone can be excluded not,

as the of DNA source to deter-

mine whether that can be identified

as the source. The test in this results case certainty

indicated with reasonable that the

defendant was DNA the source ex- from

tracted the semen found at the crime supported experts’

scene the DNA testi-

mony to only “probability” that effect. The

testimony proscribed by testimony Bible is

the statistical random match probability. testimony

Because that was excluded court,

trial I find no error in the admission of

the DNA evidence.

I would affirm the convictions and sen-

tences. Creek, plain- Cave for Riper, M. Van

Ellen tiff-appellant. Levinson,

Anderson, Brody, & Weiser Phoenix, Horwitz, Myers, by Stephen A. PA. defendants-appellees. Morrill, Beus, by Paul P.L.L.C. Gilbert & Gross, Phoenix, for Jeffrey D. E. Gilbert intervenor.

OPINION KLEINSCHMIDT, Presiding Judge. fail- issue this case whether organization form a ure to file a refer- application with an in connection signatures ob- renders We hold that the on the void. tained in this case is excused to file the form failure ap- the information plicant ambiguous person a was too enable had to determine whether filed. 1994, Mayor and Com- September Town of voted

mon Carefree Council unanimously change zoning classifica- twenty-acre from parcel property tion of a Barry Displeased, to commercial. residential Careiree, DiSimone, a obtained resident Packet from the Application Referendum office, intending to have Clerk’s Town zoning issue referred electors applica- packet included an of Carefree. number, serial a state- tion for a referendum form, copy of Title ment of (“A.R.S.”), Revised copy approved ordinance the town council. completed ap- the serial number

DiSimone plication the Town submitted office. The Town Clerk issued Clerk’s serial number DiSimone twenty-two indicated that necessary matter to At to refer the a vote. packet, DiSimone time he received acting on and was not associated was own bring seeking other DiSimone, believing it about referendum. unnecessary, was never legislation subject, submitted the state- on the Direct Sellers prepared ment of He v. McBrayer, Ass’n signature (1972), sheets with the assistance of petitions and referendum several other residents collected strictly comply with constitutional and signatures. helpers 148 DiSimone and his statutory requirements to ensure that organization had no formal and no common right improp- constitutional or abused fund, collecting signatures, but while DiSi- Devcor, expanded. erly Western 168 at Ariz. mone to Sentinel wrote letters the Foothills Legislation 814 P.2d at 770. to relating indicating that he was with a “co- associated however, petitions, may referendum not un- alition of Carefree residents” that was a reasonably or restrict hinder the constitu- “loose affiliation of individuals like-minded provision and reasonably supple- tional objective.” with a common He to referred purpose. the constitutional ment Direct Sell- this “coalition” “our commit- as referendum ers, P.2d 109 Ariz. at 503 at 953. and tee” as a “referendum coalition.” Plaintiff claims that his The DiSimone and sig- When DiSimone submitted the political not a If group were committee. sheets, nature the Town refused to Clerk were, says they she the statutes are so un- Maricopa County transmit them to the Re- unconstitutionally vague. clear as signatures corder for verification be- conclude that DiSimone and ten, cause contained rather than the sheets committee, that the but statutes fifteen, signature lines and because DiSimone to are so con- the forms organiza- had not submitted the statement of trap fusing they for those who are set a tion form he and others collected the right to trying exercise to seek a refer- their Plaintiff, signatures. elector They unreasonably endum. hinder the exer- complaint of the Town in filed right. cise of the superior court to A.R.S. 19-122(A) (Supp.1994) compel to the Town AND GROUP WERE DISIMONE HIS Clerk and Town Carefree to submit the A POLITICAL COMMITTEE signatures County Recorder verifi- granted cation. court the Town’s The trial and his Once DiSimone like-minded summary judgment, ruling motion for began cooperating on associates the referen organiza- failure dum, they constituted a committee” tion invalidated the because “the such, ordinarily as would identify circulator of failed form. Ari file a statement required.” himself and his zona Revised Statutes Annotated section 19- The court ruled that that the also the fact 114(B) (Supp.1994) provides: signature signature contained ten sheets Signatures obtained on initiative refer- lines rather than fifteen was not a suffi- lines petitions by petitions. cient reason to invalidate the proposing or the initiative referendum or long recognized Arizona courts have officers, any agents, employees of its strong public policy favoring the initiative prior of the commit- members Devcor, and referendum. Western Inc. v. tee’s statement of are void Scottsdale, City 426, 428, 168 Ariz. 814 determining and shall not in be counted (1991). P.2d supreme 769 court has legal petition. sufficiency right characterized the of initiative and refer- “vital,” endum as important one so “Political defined authors of our constitution they included (Supp.1994) as: machinery sufficient in the constitution to any a candidate or association or combina- right make self-executing. Crozier v. persons organized, that is conduct- Frohmiller, P.2d 179 purpose ed or combined for influenc- (1947). any the result of election this state provi town, fact that a constitutional or in county, city, district or self-executing not, sion is state, precinct does bar engages polit- Clearly Require Do Not opposition ... of or 2. The Statutes activity ical Every Applicant to File A Statement initiative, to an recall— Organization in such broad is couched This definition provisions separate Two found Title applies to informal terms that we believe subject: bear on the But for the groups like DiSimone’s. ad hoc Arizona Revised' statutes and the engendered confusion 111(C) Secretary (Supp.1994) group should given, was forms DiSimone every applicant with the text supply State pe- form before organizational filed the have governing the initiative of “this article” circulated. titions were referendum, adopted by the Secre- all rules statute, pursuant to the a state- tary of State IS SO THE APPLICATION PROCESS organization form and a notice relat- ment of THAT IT UNREASON- CONFUSING advising, “This state- ing to that statement ABLY HINDERS THE EXERCISE filed before valid ment must be FILE A REFER- THE RIGHT TO OF itself does not collected.” The statute can be ENDUM PETITION every applicant must file a mandate that of form. statement fit DiSimone and associates While Revised statutory “political the broad definition 114(B) only requires “political committee,” forms for seek the statutes and organization form. It to file the statement way in a that ing a referendum are worded every applicant must do so. say that does unorganized group, and did mislead an would DiSimone, believing po that no that it is agree into with the Defendants mislead We important parties to to know ex- litical committee existed which needed file interested backing actly is a referendum drive who organizational an require to individuals to that it is reasonable they a form which discloses whether are Organization Statement acting alone or in concert with others. Misleading Form is believe, notice also reasonable requirement imparted must of such a be obviously adapted report- is The form every applicant. ing by organizations. formal It is silent as blanks, to fill in its leav- how individuals are forms, it is the current statutes and Given applicant to if it an wonder indeed happen lay to a easy to illustrate what would completed every intended to be instance. implement person who wants referen- applicant form to A.R.S. sec- packet refers from the dum. The obtains (Supp.1994), tion 16-902 num- municipal He fills out the serial clerk. application and every political must a chair- ber reads the statement have him treasurer, organization form. The form tells and a must include the name man signatures can filed before valid be any sponsoring organization in the com- collected, of Arizona but it labeled “State title, designate mittee and must one or more Organiza- Political Committee Statement campaign depository. banks as its everything per- tion.” Almost on the form statute, reading applicant like DiSi- identity operations tains to the of a might easily mone be led to believe that an formal so that an individual group ad hoc of like-minded volunteers such applicable” fill in would have to “not to al- as those with whom he was did associated every question. most purview. yet, not fall within its Worse form made no reference at all to A.R.S. Confused, applicant might wonder where commit- group and an informal of associ- whether he any tee” is defined. Nor ates, does the other any he had associates at that indeed applicant to an refer to point, political would committee. He statutory provision defining “political provided search statutes to him the packet Looking committee.” to no avail. to the statement 19-112(B). 121(E) form, than A.R.S. section might an unex- rather he see 19-121(E), things only title of the Under plained reference under the If turned to attached to the he which must be to A.R.S. section resolution, statute, simply legal descrip- told that a would ordinance or he zoning and a property committee must have officers tion of the case account, measure, ordi- leading him to conclude that amendments to the bank legislative body. The were not a and his informal nance made he provided complied with those re- the statutes in this case committee. Since political committees to file a only require quirements. him organization, he would reason- respect to trial court with We reverse It is need not do so. ably conclude that he petition was defective whether the the issue exactly hap- undisputed that this is what organization was no statement of pened to DiSimone. trial court with remand filed. We granting sum- an order directions enter THE TRIAL RULED COURT directing Plaintiff and mary judgment to the THE ON CORRECTLY to forward Town of Carefree the Clerk OTHER ISSUES Maricopa petition to the the referendum argue that the trial The Defendants award processing. County Recorder petition was judge incorrectly ruled that the Plaintiff attorney’s to the fees forms 12-2030(A) (1994). because the contained not defective A.R.S. section signature lines. only than fifteen ten rather point. on this judge trial was correct The NOYES, J., concurs. signature lines the fifteen We believe concurring. EHRLICH, Judge, specially 19—101(A) to in A.R.S. section referred than a min a maximum rather (Supp.1994) is majority’s disposi- ultimate I concur the 19-121(0 (Supp.1994) § imum. See A.R.S. agree its affir- I also with tion of this case. (“Not signatures on one than fifteen rulings regarding trial court’s mance of the counted.”). petition not is shall be sheet by required signature lines number of the for that reason. defective (“A.R.S.”) section 19-901 Ariz.Rev.Stat.Ann. requirements petition-attachment and the argue Finally, the intervenors 19-121(E). concur, specially section how- comply did not petition signature sheets ever, disagreement my with the because of 19-112(B) (Supp.1994) Barry majority’s conclusion that DiSimone original ordinance of the because the text under “political as a zoning Rl-35 establishing property as an 19-114(B). to the sheets was not attached demonstrates Nothing the record submit plan and related documents the site sought the referendum rezoning were when he application for ted with the September Town Clerk on from the Carefree trial court sheets. The not attached to the 1994, applied for as well as when he do rejected argument and so we. this three serial number received the referendum governs what must be attached statute which 19-111(A), later, § DiSimone days see A.R.S. petition the measure to be re to the when cap acting anything but an individual by legislative body of was is ferred enacted respond acity.1 This is true even he was incorporated is town A.R.S. section Organization” by form characterizing representative created DiSimone as a the "Statement committee,” refers, State, majority, Secretary as did without stat- parties, 16-902, definition found in sec- utilizes the "Organi- utory support, to A.R.S. section However, 16-901(15). preface to that tion Ignoring this zation of committees.” statute makes it clear that the definitions con- accepting applicability puzzle, only chapter.” pertain tained therein to "this "political committee" in sec- of the definition of Chapter There is no reference in 6 of Title 16 to 16-901(15), when DiSimone received tion no reference in Article of Title as there is number, part of referendum serial he was not seq. § A.R.S. 19-111 et to A.R.S. section persons “any association or combination of incorporation "political that definition pur- organized, conducted or combined is committee” into Title Article comes from perception to his that other residents of “This statement be filed before opposition can be collected.” The secre- the town were like-minded their Presumably, any tary sup- shall development. one furnish a sufficient daunting process ply pamphlets county, city of circulat of these begins the who similarly petition that there and town clerks who shall furnish ing a believes referendum position but to believe in pamphlet applicant. for his to each say backing person not to that a thus such 19-114(B), Section the enforcement mecha- capacity.2 Act acting in an individual 19-111(0, nism for section reads: receipt at the time of his ing as an individual Signatures obtained on initiative and refer- number, serial DiSimone the referendum petitions to file was not the “statement or or proposing the initiative organization” provided for.in officers, agents, employees of its or 19-111(C). Accordingly, the town clerk prior to the of the commit- members rejected should not have for that void tee’s statement reason. determining and shall be counted 19-111(A) (C) provide: Sections sufficiency legal petition. organization intending A A or 19-11KA) makes clear that Section propose a law or constitutional amendment referendum-petition process distinguishes be- petition or to initiative referen- apply- individual and those tween measure, item, petition against dum sec- organization. ing on behalf of a shall, part a measure subsection, repre- individual or Under causing printed and cir- applicants seeking to file a referen- sentative culated, secretary file with the of state an petition required provide the dum are application, provided by on a form the (name, address, statement same state, secretary setting of his name forth petition, of a and intent circulate the text or, organization, an its name and the referred), except of the law measure be address, officers, names and titles its of group applicant provide that a also must the peti- his intention to circulate and a name of the and and the names titles tion, description a of no than one of its officers. principal provisions hundred words of the law, proposed problem of the constitutional in amend- this case arises from sec- 19-111(C), pro- ment or and of tion not measure the text the which does delineate be- law, posed group applicants. constitutional and amendment or tween individual How- ever, reading measure be initiated or referred in no a harmonious of sections 19- 111(0 (A) 19-114(B), eight point type, applying less than and and section do, required, possible, issuance of an official serial we when see [Em- number. Achen-Gardner, phasis Superior (City added.] Inc. Court Chandler), 48, 54, 1093, 173 Ariz. 839 P.2d of (1992), analysis 1099 of necessitates sub- secretary of print C. The state shall (C) section that also follows the individual- pamphlet form and furnish shall to each group dichotomy established in subsection applicant, application at time (A). submitted, copy a of the text of this article governing the initiative and referendum The first and third sentences of section 19- 111(C) adopted by secretary and all rules specify applicant” of that “each is to be addition, provided, by secretary state to this In title. of state secretary authority, of state shall at this proper “pamphlet” time local a contain- applicant ing furnish the with a of copy govern- statement “a of the text of this article organization stating: and notice and all the initiative referendum and referendum____” pose significance of ... [a] of ... of evolution from individ- added). representative consequent (emphasis § ual to action and the necessity filing organiza- statement of tion at that time is not at issue here. 586 secretary pur larly given that adopted

rules state the statement However, to that suant to this title.”3 the second that case would add no information sentence, secretary of already original application. where included Co., applicant with a Awning directed to “furnish E.g., Flexmaster Aluminum form and a notice statement of Hirschberg, Inc. v. (court stating: ‘This statement be filed (App.1992) appeals 1134 con ” collected,’ conspicu signatures can gives them strues statutes manner applicant” not ously “the and uses the term meaning). Reading such a hollow reasonable individual-group applicant.” “each Given requirement into also undermines the statute 19-11KA), distinction established spirit long-standing public of this state’s interpretation of sub think that the better supporting policy the initiative referen (C) secretary of state is is that the Const., IV, (1914); pt. Ariz. Art. 1 dum. See provide individual referen The Arizona Constitution The Records of dum-petition applicants with the statement (John Goff, ed.), of 1910 S. al Convention organization. Leshy, Making D. passim; John Constitution, 1, 63- 20 Ariz.St.L.J. says that Riper Van subsec- While herself Devcor, 64; City Inc. v. Scotts (C) Western applicants given that all dale, P.2d Ariz. forms, she the statement (1991). statutory argues di- nonetheless form is not a di- to distribute the

rective sum, interpretation of logical the most fill applicants all out file the rective that (C) 19-111(A) 19- and section sections upon For this she relies 114(B) indi- whereby an process describes 114(B), arguing provision referendum-petition applicant vidual only “political commit- penalizes expressly extension, receive, nor, by to file required to which have collected tees” organization. It is on statement organization, prior to their statement trial court’s that I would reverse the basis 19—111(C) requiring reading of section ruling was defective. organiza- all to file 19-114(B) tion would render section “redun-

dant futile.” reasoning is as far as it Riper’s

Van 905 P.2d 595 interpreted in goes; statutes should word, way clause MANN, Petitioner, such a as to render Wayne Patrick void, contradictory or provision “superfluous, v. Guzman, E.g., insignificant.” Guzman of Ari- COURT State SUPERIOR (App. zona, In For the COUNTY OF 1993). However, I the same believe MARICOPA, Honorable Elizabeth my reading of 19- reasoning confirms thereof, Yancey, Re- commissioner 111(C). 19-114(B)’s singu light of section Judge, spondent committees,” on the sec lar focus 19-111(0) only ond of section makes sentence MANN, Party in Real Interest. Ann Julie and, thus, would not be rendered sur sense plusage, exempting individual ref read No. 1 CA-SA receiving erendum-petition applicants from Arizona, Appeals of Court of organization. Requiring in the statement 1, Department Div. A. petition applicants to fill dividual out the organization, marking ap “not Oct. date, plicable” every entry except extensively crossing-out editing

questions so that answers can sensible wasteful, particu is both absurd and

entered adopted.

3. No rules have been

Case Details

Case Name: Van Riper v. Threadgill

Court Name: Court of Appeals of Arizona

Date Published: Aug 17, 1995

Citation: 905 P.2d 589

Docket Number: 1 CA-CV 95-0195

Court Abbreviation: Ariz. Ct. App.