Aguilera v. Richer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LAURIE AGUILERA, et al., Plaintiffs/Appellants,

v.

STEPHEN RICHER, et al., Defendants/Appellees.

No. 1 CA-CV 20-0688 EL
FILED 6-15-2021

Appeal from the Superior Court in Maricopa County
No. CV2020-014562
The Honorable Margaret R. Mahoney, Judge

DISMISSED FOR LACK OF JURISDICTION

COUNSEL

Kolodin Law Group PLLC, Phoenix
By Alexander Kolodin, Christopher A. Viskovic, Bryan Blehm, Chris Ford
Counsel for Plaintiffs/Appellants

Maricopa County Attorney’s Office, Phoenix
By Thomas P. Liddy, Emily M. Craiger, Joseph I. Vigil, Joseph Branco,
Joseph Eugene La Rue
Counsel for Defendants/Appellees
Perkins Coie LLP, Phoenix
By Sarah R. Gonski
Co-Counsel for Intervenor/Appellee Arizona Democratic Party

Ballard Spahr LLP, Phoenix
By Roy Herrera, Daniel A. Arellano
Co-Counsel for Intervenor/Appellee Arizona Democratic Party

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S, Judge:

¶1 Laurie Aguilera and Donovan Drobina appeal from a
superior court order dismissing their claim for mandamus relief. We
dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

¶2 Aguilera and Drobina are registered voters in Maricopa
County who filed a civil complaint—not a special action—against Maricopa
County election officials related to the 2020 general election. Aguilera and
Drobina sought declaratory and injunctive relief, alleging the election
officials failed to comply with the Arizona Constitution, Arizona election
statutes, and the Arizona Secretary of State’s Electronic Adjudication
Addendum to the 2019 Elections Procedures Manual (Feb. 28, 2020) (EPM
Addendum).

¶3 In count six, Aguilera and Drobina alleged the county
defendants violated the EPM Addendum by not allowing public access to
facilities where the county defendants conducted the electronic
adjudication of votes. Specifically, Aguilera and Drobina asked the superior
court for an injunction requiring open access to “the location where
electronic adjudication is taking place to the public in further elections, as
well as during any additional electronic adjudication that takes place this
election (e.g. as a result of a recount).”

¶4 County officials use electronic-adjudication procedures to
determine a voter’s intent on a ballot when the normal methods used to
count votes are unable to do so. See EPM Addendum at 1. The EPM

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Decision of the Court

Addendum says: “The electronic adjudication of votes must be performed
in a secure location, preferably in the same location as the EMS system, but
open to public viewing.” Id. at 3.

¶5 The superior court held an evidentiary hearing and heard
closing arguments. It also heard arguments on the county defendants’
motion to dismiss. The superior court dismissed Aguilera and Drobina’s
complaint in full for failure to state a claim upon which relief can be
granted. Aguilera and Drobina timely appealed.

ANALYSIS

¶6 Aguilera and Drobina only appeal the dismissal of count six,
in which they allege the county defendants failed to make the electronic
adjudication open to public viewing. Specifically, Aguilera and Drobina
argue the county defendants needed to allow in-person viewing of the
electronic adjudication to members of the general public. Though the
parties did not originally assert jurisdiction as an issue, “this court has an
independent duty to determine whether it has jurisdiction to consider an
appeal.” See Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App.
1997). Accordingly, we instructed the parties to provide supplemental
briefing on whether Aguilera and Drobina had to bring their request as a
special action in the superior court. We conclude they did. See Coombs v.
Maricopa Cnty. Special Health Care Dist., 241 Ariz. 320, 322, ¶ 10 (App. 2016).

¶7 To begin, Aguilera and Drobina requested mandamus relief.
They affirmatively assert “the case was properly classified as a mandamus
action.” Count six alleged the EPM Addendum required the county
defendants to open “the location where electronic adjudication occurs to
the public.” As a remedy, Aguilera and Drobina requested injunctive relief
requiring the county defendants to open “the location where electronic
adjudication is taking place to the public in further elections, as well as
during any additional electronic adjudication that takes place this election
(e.g. as a result of a recount).” We express no opinion on the merits of
whether their mandamus request was proper. See Arizonans for Second
Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396, 404, ¶ 16 (2020) (“An
action is in the nature of mandamus if it seeks to compel a public official to
perform a non-discretionary duty imposed by law.” (emphasis added) (quoting
Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 370, ¶ 19
(2013))).

¶8 For that reason, Aguilera and Drobina should have requested
their mandamus relief in a special action. See id. (rules of special action

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Decision of the Court

procedure provide for “the traditional functions of the writ of mandamus
by permitting petitioners to compel a state officer to perform a duty
required by law” (cleaned up)); see also Ariz. R.P. Spec. Act. 1(a) (“Relief
previously obtained against a body, officer, or person by writs of certiorari,
mandamus, or prohibition in the trial or appellate courts shall be obtained
in an action under this Rule . . . .” (emphasis added)). Far from mere
semantics, “[j]urisdictional statements are important,” and our supreme
court has cautioned parties against failing to follow proper form when
requesting special action relief. Arizonans for Second Chances, 249 Ariz. at
404, ¶ 17.

¶9 If Aguilera and Drobina had brought their complaint as a
special action, they would have allowed the superior court to evaluate it as
such. Special actions have specific requirements setting them apart from
normal civil actions, and litigants must follow them as they would any
other set of rules. See id. Further, special action jurisdiction is highly
discretionary. Prosise v. Kottke, 249 Ariz. 75, 77, ¶ 10 (App. 2020); see also
Coombs, 241 Ariz. at 322, ¶ 10 (“[T]he superior court has discretion to decide
whether to consider a special action on its merits.”).

¶10 Allowing Aguilera and Drobina to pursue mandamus relief
in a regular civil action would gut the purpose of special action procedures.
As the county defendants correctly say, “no litigant would ever risk a court
denying jurisdiction if [the litigant] could just file a civil action and force
the court to hear a request for extraordinary relief.” Here, Aguilera and
Drobina never asked the superior court to treat their complaint as a special
action. They cannot now ask this court for the extraordinary relief inherent
in special actions without having taken the associated risks in the superior
court. See Coombs, 241 Ariz. at 322, ¶ 10 (“[W]e will not address the
availability of extraordinary relief for the first time on appeal.”).

CONCLUSION

¶11 We dismiss Aguilera and Drobina’s appeal for lack of
jurisdiction. We deny Aguilera and Drobina’s request for attorney fees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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