Maricopa v. Hon. Ainley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARICOPA COUNTY; BILL GATES, STEVE GALLARDO, THOMAS
GALVIN, CLINT HICKMAN, JACK SELLERS, the Maricopa County
Board of Supervisors; STEPHEN RICHER, the Maricopa County Recorder,
Petitioners,

v.

THE HONORABLE TINA AINLEY, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of YAVAPAI,
Respondent Judge,

STRONG COMMUNITIES FOUNDATION OF ARIZONA
INCORPORATES; ERIC LOVELIS; WILLIAM JOSEPH APPLETON;
LAURA HARRISON; YAVAPAI COUNTY; CRAIG L. BROWN; JAMES
GREGORY; DONNA G. MICHAELS; MARY MALLORY; HARRY B.
OBERG; MICHELLE M. BURCHILL; COCONINO COUNTY; JERONIMO
VASQUEZ; PATRICE HORSTMAN; ADAM HESS; JUDY BEGAY; LENA
FOWLER; PATTY HANSON

Real Parties in Interest

No. 1 CA-SA 24-0086
FILED 05-30-2024

Appeal from the Superior Court in Yavapai County
No. S1300CV202400175
The Honorable Tina Ainley, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED
 COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Thomas P. Liddy, Joseph E. La Rue, Jack L. O’Connor III, Rosa Aguilar
Co-Counsel for Petitioners

Snell & Wilmer L.L.P., Phoenix
By Brett W. Johnson, Eric H. Spencer, Colin P. Ahler, Ian Joyce
Co-Counsel for Petitioners

American First Legal Foundation, Washington D.C.
By James K. Rogers
Co-Counsel for Real Parties in Interest Strong Communities of Arizona, Eric
Lovelis, William Joseph Appleton and Laura Harrison

Jennifer J. Wright, Phoenix
Co-Counsel for Real Parties in Interest Strong Communities of Arizona, Eric
Lovelis, William Joseph Appleton and Laura Harrison

Yavapai County Attorney’s Office, Prescott
By Thomas M. Stoxen, Michael J. Gordon
Counsel for Real Parties in Interest Yavapai County

Flagstaff Law Group, Flagstaff
By Rose Winkeler
Counsel for Real Parties in Interest Coconino County

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Chief Judge David B. Gass and Judge Daniel J. Kiley joined.

C R U Z, Judge:

¶1 In this special action petition, Maricopa County; Bill Gates,
Steve Gallardo, Thomas Galvin, Clint Hickman, Jack Sellers (collectively,
“Maricopa Board of Supervisors”); and Stephen Richer (“Maricopa County
Recorder”) (Maricopa County, Maricopa Board of Supervisors and
Maricopa County Recorder collectively, “Maricopa Petitioners”) seek relief
from the superior court’s denial of their motion for change of venue. The
Maricopa Petitioners argue the superior court should have granted their
motion because a special action challenging the election practices and

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procedures of three counties and their respective officials cannot be brought
in a single county in which some, but not all, of the bodies and officers
preside and the events giving rise to the lawsuit took place.

¶2 For the following reasons, we accept special action
jurisdiction. Because Arizona law does not provide for a transfer of venue
in special actions brought in the superior court, we grant relief in the form
of dismissal without prejudice as to Maricopa Petitioners.

FACTUAL AND PROCEDURAL HISTORY

¶3 In February 2024, Strong Communities Foundation of
Arizona Incorporated, Eric Lovelis, William Joseph Appleton, and Laura
Harrison (collectively, “Real Parties in Interest”) filed a lawsuit against
Maricopa Petitioners; Yavapai County and the Yavapai County Recorder
(collectively, “Yavapai Defendants”); Coconino County, the Coconino
County Recorder and the Coconino Board of Supervisors (collectively,
“Coconino Defendants”) alleging issues with election administration and
procedures. Maricopa Petitioners filed a motion for change of venue from
Yavapai County to Maricopa County. Real Parties in Interest opposed the
motion. The Yavapai Defendants and the Coconino Defendants did not
oppose the Maricopa Petitioner’s venue change request. The superior court
denied the motion after considering Arizona Rule of Procedure for Special
Actions ("Rule”) 4(b), and reasoning “it would lead to a ridiculous result”
if one plaintiff had to file multiple lawsuits in multiple counties to challenge
the counties’ respective election procedures and practices.

¶4 Maricopa Petitioners challenge the superior court’s denial of
their motion for change of venue.1 At Maricopa Petitioners’ request and
after a hearing, we temporarily stayed the superior court’s proceedings in
this matter.

SPECIAL ACTION JURISDICTION

¶5 Our decision to accept special action jurisdiction is
discretionary. State v. Superior Court (Landeros), 203 Ariz. 46, 47, ¶ 4 (App.
2002). We accept special action jurisdiction here for three reasons. First,
“[b]ecause an appeal cannot adequately cure an erroneous venue ruling,
such orders are appropriately reviewable by special action.” Sierra Tucson,

1 Before filing their response, Real Parties in Interest moved to dismiss
this special action. The Arizona Rules of Procedure for Special Actions do
not authorize a motion to dismiss. Real Parties in Interest later moved to
withdraw the motion to dismiss and, we grant the same.

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Inc. v. Lee, 230 Ariz. 255, 257, ¶ 6 (App. 2012) (citations and internal
quotation marks omitted). Second, this case requires us to determine the
correct application of Rule 4(b), presenting a question of law that is
reviewed de novo and is appropriate for review by special action. See id. at
257, ¶ 7; ChartOne, Inc. v. Bernini, 207 Ariz. 162, 165-66, ¶ 8 (App. 2004).
Third, application of Rule 4(b) to the circumstances here is a matter of
statewide importance. See Sierra Tucson, Inc., 230 Ariz. at 257, ¶ 7 (stating
that the interpretation of Arizona Revised Statutes (“A.R.S.”) section 12-404
was a matter of statewide importance); Landeros, 203 Ariz. at 47, ¶ 4
(“Special action jurisdiction is appropriate in matters of statewide
importance . . . .”).

DISCUSSION

¶6 We review de novo the application of court rules. Levy v.
Alfaro, 215 Ariz. 443, 444, ¶ 6 (App. 2007).

¶7 Special actions seek extraordinary relief “previously obtained
against a body, officer, or person by writs of certiorari, mandamus, or
prohibition.” Rule 1(a). Special actions may raise the following three types
of issues: (1) whether defendants have failed to exercise discretion they
have a duty to exercise or failed to “perform a duty required by law” in
which they have no discretion; (2) whether defendants are proceeding or
threatening to act outside their legal authority; or (3) whether “a
determination was arbitrary and capricious or an abuse of discretion.” Rule
3. Special actions are governed by the Arizona Rules of Procedure for
Special Actions. Rule 1(a). These rules provide procedures for bringing a
special action, such as mandating where initial venue is appropriate. Rule
4(b). In civil actions, venue is determined according to A.R.S. § 12-401.

¶8 Rule 4(b) states that “[a]n action brought in the Superior
Court under [the Arizona Rules of Procedure for Special Actions] shall be
brought in the county in which the body or officer has or should have
determined the matter to be reviewed[.]” In contrast, A.R.S. § 12-401(15),
(16) states “[n]o person shall be sued out of the county in which such person
resides except: . . . [a]ctions against counties shall be brought in the county
sued unless several counties are defendants, when it may be brought in any
one of the counties. Actions against public officers shall be brought in the
county in which the officer, or one of several officers, holds office.”

¶9 “[I]n the event of irreconcilable conflict between a procedural
statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 85, 89, ¶ 8
(2009). But “rules and statutes should be harmonized wherever possible

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and read in conjunction with each other.” Johnson v. Elson, 192 Ariz. 486,
488, ¶ 8 n.4 (App. 1998) (citations omitted).

¶10 Here, Rule 4(b) does not irreconcilably conflict with A.R.S. §
12-401(15), (16). Rather, Rule 4(b) provides a specific procedure for
determining special action venue within the framework of the general
venue statute. See Rule 4(b), cmt. b, (“This section . . . is in general
accordance with Arizona’s venue statute, A.R.S. § 12-401 . . . .”); see also
Morales v. Coffey, 256 Ariz. 50, 57, ¶ 19 (App. 2023) (holding that A.R.S. § 12-
820.03(B) did not conflict with Rule 42, Arizona Rules of Civil Procedure,
because “[t]he former is a more specific procedural direction within the
broader framework of the latter.”). Therefore, Rule 4(b) governs venue in
special actions.

¶11 Despite contrary authority, Real Parties in Interest argue this
court must harmonize A.R.S. § 12-401(15), (16) with Rule 4(b) by trumping
the Rule’s requirement that special actions against a county body or officer
be filed in the county where that body or officer presides. See Maricopa Cnty.
v. Barkley, 168 Ariz. 234 (App. 1990); Cochise Cnty. v. Helm, 130 Ariz. 262
(App. 1977); Dunn v. Carruth, 162 Ariz. 478 (1989). Barkley, Helm, and Carruth
are instructive on this matter.

¶12 In Barkley, this court considered whether a statute that
mandated an action’s initial venue precluded a venue transfer under A.R.S.
§ 12-408. 168 Ariz. at 237–38. This court held it did not, reasoning that
harmonizing statutes mandating initial venue with the venue provisions
listed in A.R.S. § 12-408 allowed for a venue transfer after the action was
initiated in the proper venue in the first instance. Id. Similarly, in Helm,
this court held that when a special action is brought in the proper venue
under Rule 4(b), venue transfer is allowed under A.R.S. § 12-408. 130 Ariz.
at 263. Further in Carruth, the Arizona Supreme Court held that even when
a statute required a venue transfer a party may exercise a second venue
transfer for cause even if the State exercised its right to secure the first venue
change under a different statute. 162 Ariz. at 480–81.

¶13 These three cases establish the legal principle that the court
must follow the venue mandated for the initial filing of an action, though
that court may later transfer venue for cause. That is, the court must apply
the initial venue provisions of the Arizona Rules of Procedure for Special
Actions even if later changes in venue are permitted. See Hellman v.
Marquardt, 111 Ariz. 95, 98 (1974); Helm, 130 Ariz. at 263.

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¶14 Because Real Parties in Interest brought their claims as a
special action, the Arizona Rules of Procedure for Special Actions apply.
See Rule 1(a). When the plain reading of a rule or statute is unambiguous,
we apply it as written. Apodaca v. Keeling, 246 Ariz. 349, 351, ¶ 6 (App. 2019).
Rule 4(b) is unambiguous and should be applied as written. Accordingly,
special actions brought against Maricopa County officials must be initiated
in Maricopa County, just as special actions brought against Coconino
County officials must be initiated in Coconino County.

¶15 We now turn to the appropriate relief. Maricopa Petitioners
ask this court for relief in the alternative, either order the superior court to
transfer the special action to Maricopa County or dismiss the special action
outright. Based on this court’s longstanding precedent, dismissal is the
appropriate relief. See Helm, 130 Ariz. at 263. In Helm, this court held that
“there is no provision for transfer of a special action petition brought in the
superior court comparable to the provision for transfer in A.R.S. § 12-
120.22(B),” which allows for transfer of an appeal that was brought in the
wrong appellate court or division. Id. Therefore, we remand for dismissal
without prejudice of the special action against Maricopa Petitioners.

CONCLUSION

¶16 For the foregoing reasons, we hold that even though Yavapai
County and Coconino County also were named, Real Parties in Interest
improperly filed the special action against Maricopa Petitioners in Yavapai
County. We accept special action jurisdiction, grant relief, and remand the
matter to the superior court to dismiss the Maricopa Petitioners without
prejudice to filing an action in Maricopa County.

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

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