Crosby v. Hon. fish/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TERRY THOMAS CROSBY, Petitioner,

v.

THE HONORABLE GEOFFREY FISH, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

STATE OF ARIZONA, Real Party in Interest.

No. 1 CA-SA 24-0206
FILED 12-31-2024

Appeal from the Superior Court in Maricopa County
No. CR2023-008495-002
The Honorable Geoffrey H. Fish, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Wilenchik & Bartness PC, Phoenix
By Dennis I. Wilenchik (argued), Timothy R. Grimm, & Brian R. Gifford
Counsel for Petitioner

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball (argued) & Todd C. Lawson
Counsel for Real Party in Interest
 CROSBY v. HON. FISH/STATE
Opinion of the Court

OPINION

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Thomas Crosby petitions this court for special action relief,
challenging the superior court’s order denying his motion to dismiss
election interference and conspiracy charges against him. We accept
jurisdiction but deny relief.

¶2 We hold that the act of canvassing an election is an
administrative responsibility. Thus, the superior court did not err by
concluding that Crosby had no legislative immunity when he refused to
deliver the canvass results to the Secretary of State. Nor did the superior
court err by denying Crosby’s dismissal motion because the complaint
alleged enough facts to establish a crime and that Maricopa County had
venue.

BACKGROUND

¶3 Petitioner Crosby was elected to the Cochise County Board of
Supervisors (“Board”) in 2020. Crosby, Ann English, and Peggy Judd
served on the Board. The Board, as the county’s governing body, must
undertake several election-related duties. In a general election, the Board
must canvass the results of the election and deliver the canvass results to
the Secretary of State. See A.R.S. §§ 16-642, -646, -647. Besides the canvass,
the Board must also perform a hand count of the greater of two percent of
county precincts or two precincts. A.R.S. § 16-602.

¶4 During the 2022 general election, Crosby and Judd claimed
they had concerns about the reliability of electronic voting machines. They
began researching the legality of performing a full hand count of all ballots.
The Cochise County Attorney and the State Election Director advised
Crosby and Judd that they lacked the authority to conduct a full hand
count. Still, on October 24, 2022, Crosby and Judd voted to conduct a full
hand-count audit of all precincts. Two days later, the Board held an
emergency meeting to discuss a letter from the State Election Director
warning the Board that it should not perform a full hand count of the ballots
but proceed with the limited hand count mandated by law.

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Opinion of the Court

¶5 The Arizona Alliance for Retired Americans filed a special
action asking the superior court to enjoin a full hand count. On November
7, 2022, the day before the election, the superior court granted the
preliminary injunction, enjoining the Board from performing a full hand
count and ordering the Board to limit the hand count to what is authorized
under Arizona Revised Statutes (“A.R.S.”) § 16-602. On November 14, Judd
and Crosby filed a special action against the Cochise County Elections
Director, claiming the November 7 order allowed them to expand the hand
count of the ballots so long as it was less than 100% of the total ballots. They
later dismissed the special action.

¶6 On November 18, 2022, the Board held a special meeting to
certify the election results. The County Elections Director presented the
results of the elections to the Board, and the deputy county attorney advised
the Board that it must certify the election by November 28, 2022, to comply
with the law. Crosby and Judd voted to table the certification until
November 28, 2022. At the November 28 meeting, Crosby again moved to
table the certification until December 2, and the motion passed.

¶7 As Arizona Secretary of State, Katie Hobbs brought a special
action in the superior court. At a December 1 hearing, the court ordered the
Board to convene later that day to canvass the election and present it to the
Secretary of State as required. Judd and English met later that day at an
emergency session of the Board, voted to accept the canvass results, and
submitted the results to the Secretary of State. Crosby attended the court
hearing but did not attend the emergency Board session. Three days later,
the Secretary of State, the Governor, the Arizona Supreme Court Chief
Justice, and the Attorney General certified the 2022 election results.

¶8 After the election, the Attorney General’s Office began
investigating the Board’s actions related to the 2022 election. Crosby and
Judd appeared before a grand jury, and Crosby testified about his actions
related to the 2022 canvass. On November 27, 2023, the grand jury returned
an indictment against Crosby for one count of Conspiracy, a class 5 felony,
and one count of Interference with an Election Officer, a class 5 felony. The
grand jury found the alleged offenses were committed in Cochise and
Maricopa Counties, and the State filed the charges in Maricopa County.

¶9 On February 7, 2024, Crosby moved to dismiss the criminal
charges. Among his arguments were that his actions were protected by
legal immunity, no interference could have occurred as a matter of law, and
the conspiracy charge was being prosecuted in a county without venue. The
superior court denied the motion, and Crosby filed this special action.

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 CROSBY v. HON. FISH/STATE
Opinion of the Court

JURISDICTION

¶10 “An order denying a motion to dismiss is an interlocutory,
nonappealable order.” Qwest Corp. v. Kelly, 204 Ariz. 25, 27, ¶ 3 (App. 2002).
The procedure for an appellate court to review the denial of a dismissal
motion is through special action. Id. And this court generally accepts
jurisdiction of special actions challenging the denial of dismissal motions in
limited circumstances. Id. But special action review is appropriate to resolve
issues of first impression and statewide importance. Ariz. Indep.
Redistricting Comm’n v. Fields, 206 Ariz. 130, 135, ¶ 11 (App. 2003).

¶11 Special action jurisdiction is appropriate here because
denying Crosby legislative immunity before trial, if he is entitled to such
immunity, would leave him with no adequate remedy on appeal. See
Mashni v. Foster, 234 Ariz. 522, 526, ¶ 14 (App. 2014) (A defendant who
asserts immunity has no adequate legal remedy after trial.); see also Ariz.
R.P. Spec. Act. 1(a). Crosby argues that by denying his dismissal motion,
the superior court abused its discretion and that jurisdiction is proper. See
Ariz. R.P. Spec. Act. 3(c). We accept special action jurisdiction because
legislative immunity for local officials derives in part from our constitution
and has not been previously applied in the context of canvassing an
election. See City of Scottsdale v. Mikitish, 253 Ariz. 238, 239, ¶ 4 (App. 2022)
(“Although we normally disfavor accepting special action jurisdiction to
review the denial of a motion for summary judgment, questions concerning
immunity are particularly appropriate for special action review.”) (quoting
Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364, 367, ¶ 5 (App. 2014)); Henke
v. Superior Court, 161 Ariz. 96, 99-100 (App. 1989) (Special action jurisdiction
is appropriate when a dispositive motion claiming immunity has been
denied because “we cannot allow a state official to be forced to trial when
the process can and should be aborted in its early stages.”).

DISCUSSION

¶12 Crosby makes three arguments in his petition for special
action. First, he contends that supervisors on the Board possess legislative
immunity, so the prosecution should be dismissed. Next, he argues that he
could not be found guilty of election interference even if he admitted all the
facts alleged in the indictment. Finally, he contends that venue for the
conspiracy charge is improper in Maricopa County. Finding no error, we
deny relief.

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 CROSBY v. HON. FISH/STATE
Opinion of the Court

A. Legislative Immunity Does Not Apply to the Board’s Failure to
Certify the Election Results.

¶13 Legislative immunity shields lawmakers from civil and
criminal liability for their legislative activities. Mesnard v. Campagnolo, 251
Ariz. 244, 248, ¶ 12 (2021). Absolute legislative immunity is rooted in the
common law and is embodied in the United States Constitution and the
principles underlying the government’s separation of powers. Id.; Bogan v.
Scott-Harris, 523 U.S. 44, 49 (1998); see U.S. Const. art. 1, § 6 (“[Senators and
Representatives] shall in all Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their Attendance at the Session of
their respective Houses[;] . . . and for any Speech or Debate in either House,
they shall not be questioned in any other Place.”).

¶14 The United States Supreme Court has recognized that
common law legislative immunity, like that found in the Speech or Debate
Clause, exists for state, regional, and local legislators acting in a legislative
capacity. Bogan, 523 U.S. at 49. And Arizona preserved this immunity in its
constitution. Fields, 206 Ariz. at 137, ¶ 16; Ariz. Const. art. 4, pt. 2, § 7 (“No
member of the legislature shall be liable in any civil or criminal prosecution
for words spoken in debate.”).

¶15 To determine whether legislative immunity applies, courts
look to the nature of the act at issue rather than the nature of the body
authorized or required by law to perform that act. Garibay v. Johnson, 257
Ariz. 91, 96, ¶ 8 (App. 2024); see Bogan, 523 U.S. at 45 (“Officials outside the
legislative branch are entitled to legislative immunity when they perform
legislative functions.”). An act is legislative “when it bears the hallmarks of
traditional legislation” as a discretionary, policymaking decision with
prospective implications rather than merely applying existing policy, like
creating administrative rules to implement legislative policy. Fields, 206
Ariz. at 138, ¶ 21 (quotation omitted). And legislative acts occur in fields
where legislators traditionally have the power to act. Id.

¶16 The Board’s refusal to certify the election results was not a
legislative act. Crosby’s duty to canvass the election under A.R.S.
§ 16-642(A) was not discretionary. See A.R.S. § 16-642(A) (2022) (“The
governing body holding an election shall meet and canvass the election not
less than six days nor more than twenty days following the election.”)
(emphasis added); Woodworth v. Woodworth, 202 Ariz. 179, 182, ¶ 17 (App.
2002) (The ordinary meaning of “shall” in a statute is to reflect a mandatory
duty.). Under A.R.S. § 16-642(C), the only time a governing body has a right
to postpone canvassing an election is when returns from polls in an election

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are missing. See A.R.S. § 16-642(C). But A.R.S. § 16-642(C) is not applicable
here because the Cochise County Elections Department submitted and
certified the election results to the Board by November 18, 2022.

¶17 Crosby himself admitted in his grand jury testimony that he
was unaware of any issues with the election results submitted by the
Cochise County Elections Department that would justify postponement.
And the superior court’s order in the mandamus action compelling the
Board to convene and certify the election underscores the non-discretionary
nature of the Board’s duty to certify the canvass. See Hunt v. Campbell, 19
Ariz. 254, 278-79 (1917) (When the board refuses to perform its duty to
canvass the election, mandamus action will compel it to do so.).

¶18 Further, the Board’s canvass of the election is much closer to
applying established policies than a policymaking decision. Policymaking
occurs when a framework and goal for a task are given, but multiple
discretionary decisions require the decisionmaker to balance the goals
needed to arrive at a final plan. See Fields, 206 Ariz. at 138, ¶ 22. On the other
hand, merely implementing established policy is not policymaking. Id.
Canvassing the election results involves adding write-in and early votes to
the results from the vote tabulating equipment. See A.R.S. § 16-622(A). Such
a mathematical undertaking does not require the Board to make multiple
discretionary decisions or balance goals. Instead, the Board had to follow
the clear instructions outlined in the statute and the court’s order, which
compelled it to complete the canvass and gave no alternate action. See
A.R.S. § 16-642(A).

¶19 And this court has already rejected Crosby’s contention that
his post-election duties required discretion. Compare Ariz. All. for Retired
Am., Inc. v. Crosby, 256 Ariz. 328, 332, ¶¶ 10-11 (App. 2023) (Title 16
establishes detailed procedures for conducting a canvass, including for
conducting a hand-count audit.), with Fields, 206 Ariz. 138, ¶ 22
(Redistricting is policymaking because the constitution instructs the council
to create competitive districts and does not provide specific instructions on
accomplishing that goal.). Canvassing is also not a field where legislators
traditionally have the power to act, as canvassing is delegated to the
executive branch. See Ariz. Const. art. 5, § 10 (“The returns of the election
for all state officers shall be canvassed, and certificates of election issued by
the secretary of state, in such manner as may be provided by law.”); art. 5,
§ 1(A) (“The executive department shall consist of the . . . secretary of state.”)
(emphasis added).

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Opinion of the Court

¶20 Crosby argues the Board performed a legislative act because
it enforced its procedural rules by voting to keep the canvass tabled.
Because procedural decisions specify how the Board may vote on
legislation, he contends it is a fundamental part of the legislative process
that deserves categorical legislative immunity. While Crosby may be
correct that voting and other legislative procedures support finding a
legislative act, it alone does not decide the issue. See Schmidt v. Contra Costa
County, 693 F.3d 1122, 1137 (9th Cir. 2012). Voting and following
parliamentary procedures are not enough to make what is otherwise an
administrative act legislative. See Fields, 206 Ariz. at 138, ¶ 21. We hold that
legislative immunity does not apply to a governing body’s duty to canvass
an election.

B. Whether Crosby Committed Election Interference is a Factual
Question for the Jury.

¶21 Crosby argues that even if he admitted to all the facts alleged
in the indictment, he would not have committed election interference with
the Secretary of State’s election-related duties. Upon a defendant’s motion,
a court must “order a prosecution’s dismissal if it finds that the indictment,
information, or complaint is insufficient as a matter of law.” Ariz. R. Crim.
P. 16.4(d). “If a defendant can admit to all the allegations charged in the
indictment and still not have committed a crime, then the indictment is
insufficient as a matter of law.” Mejak v. Granville, 212 Ariz. 555, 556, ¶ 4
(2006).

¶22 Determining whether the superior court erred by denying
Crosby’s dismissal motion requires us to apply A.R.S. § 16-1004. Issues of
statutory interpretation are purely legal issues, which we review de novo.
Mejak, 212 Ariz. at 556-57, ¶ 7. “A person who at any election knowingly
interferes in any manner with an officer of such election in the discharge of
the officer’s duty . . . is guilty of a class 5 felony.” A.R.S. § 16-1004. Crosby
contends that by referring to the words “discharge” and “duty” in the
singular, the statute must refer to a specific duty that the statute must
enumerate.

¶23 Crosby’s election interference charge is based on his
interference with the Secretary of State’s duty to complete the 2022 canvass.
Because the Secretary of State must canvass the election on the fourth
Monday following a general election, Crosby contends her duties were
limited to December 5, 2022. See A.R.S. § 16-648(A) (2022). By December 1,
2022, the Board had certified and transmitted the results to the Secretary of
State’s office.

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Opinion of the Court

¶24 Nothing in the plain meaning of A.R.S. § 16-1004 limits the
time frame for interfering with the Secretary of State’s duty to the date of
her official canvass. As the State notes, for the Secretary to complete the
canvass, she needed to make a “compilation of 15 county canvasses for: 10
elections for federal legislative offices, 8 elections for statewide elected
offices, 90 elections for state legislative offices (30 Senators, 60
Representatives), 8 judicial retention elections, and 10 ballot propositions.”
Such an undertaking requires significant preparation and planning from
the Secretary of State to complete the canvass by the statutory deadline. We
therefore determine that A.R.S. § 16-1004 is not limited to the single
statutory date on which the Secretary of State must certify the election and
may relate to any interference.

¶25 Because the Secretary of State’s duties are not limited to
December 5, Crosby’s actions before that date may amount to interference.
Thus, whether his actions rose to the level of interference is a question of
fact for the jury to resolve at trial. See State v. Cid, 181 Ariz. 496, 500 (App.
1995) (The jury is the finder of fact and will weigh the evidence.). Thus, the
superior court correctly ruled that the alleged interference should be
determined as a factual matter at trial.

C. The Venue for the Conspiracy Charge is Properly Located in
Maricopa County.

¶26 Crosby argues that Maricopa County is not the proper venue,
meaning that the Superior Court in Maricopa County lacks jurisdiction to
preside over the case. Venue lies in the county where conduct constituting
any element of the offense occurred. State v. Mohr, 150 Ariz. 564, 566 (App.
1986); A.R.S. § 13-109(A). In a criminal case, proper venue is a jurisdictional
requirement. Mohr, 150 Ariz. at 566. “Venue may be proven by indirect or
circumstantial evidence,” and the State need only prove venue by a
preponderance of the evidence. Id. Under A.R.S. § 13-109(A), the venue for
criminal prosecutions is proper in the county where “any element of the
offense or a result of such conduct occurred.” A.R.S. § 13-109(A) (emphasis
added). But if the crime is a preparatory offense, it “may be tried in any
county in which any act that is an element of the offense, including the
agreement in conspiracy, is committed.” A.R.S. § 13-109(B)(7) (emphasis
added). Conspiracy is such a preparatory offense. State v. Sanchez, 174 Ariz.
44, 46 (App. 1993).

¶27 Crosby contends that, under the Arizona Constitution, the
result of a crime can only establish venue if the result is itself an element of
the crime. Crosby points to dicta in State v. Aussie, which states, “to satisfy

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Opinion of the Court

the state constitutional requirement of trial in the county in which the
offense is alleged to have been committed, the result conferring venue must
be an element of the offense.” 175 Ariz. 125, 127 (App. 1993) (quotation
omitted); see also Ariz. Const. art. 2, § 24 (“In criminal prosecutions, the
accused shall have the right . . . to have a speedy public trial by an impartial
jury of the county in which the offense is alleged to have been committed.”).
While the court seemed to find this interpretation persuasive, it declined to
rule definitively on the issue as the result alleged in that case was an
element of the crime charged. Aussie, 175 Ariz. at 127.

¶28 As noted in cases before and after Aussie, “the constitutional
provision was not designed to establish venue but rather to preserve the
right to an unbiased jury.” State v. Swainston, 139 Ariz. 95, 97 (App. 1984)
(citing State ex rel. Sullivan v. Patterson, 64 Ariz. 40, 46-47 (1946)); cf. State v.
Willoughby, 181 Ariz. 530, 543 (1995) (In the context of a defendant’s right to
trial by an impartial jury, the constitutional provision dealt with venue
rather than state jurisdiction.). Article 2, § 24 and A.R.S. § 13-109 preserve
different rights. Crosby has not pointed to another reason why the result of
a crime could only serve as a jurisdictional element if the result were itself
an element. Because, under A.R.S. § 13-109, a result need not be an element
of the offense, jurisdiction is proper in Maricopa. Aussie, 175 Ariz. at 127 (“It
appears that, under A.R.S. section 13-109(A), such a result need not be an
element of the offense.”).

¶29 Crosby’s argument fails for another reason: the State met its
burden by showing that an element of the conspiracy occurred in Maricopa
County. The elements of criminal conspiracy include “an unlawful object
to be accomplished, a plan embodying means to accomplish that object, an
agreement between two or more persons so that they are committed to
cooperate for the accomplishment of that object, and an overt act.” State v.
Johnson, 120 Ariz. 170, 171 (1978). “An overt act has been defined . . . as ‘an
act done by one of the parties to carry out an intent, and it must be such as
would naturally effect that result; at least, it must be a step toward the
execution of the conspiracy.’” State v. Dupuy, 116 Ariz. 151, 153-54 (1977)
(quoting State v. Sullivan, 68 Ariz. 81, 90 (1948)). But the overt act need not
be criminal so long as the act takes the conspiracy beyond the agreement to
commit the offense. Dupuy, 116 Ariz. at 154.

¶30 At the November 28 meeting, Crosby motioned to table the
certification until December 2, refusing to send the results to the Secretary
of State. By this point, the deputy county attorney had informed the Board
that it would violate Arizona law if it did not certify the election results
before the November 28 deadline. If the State proves these facts at the trial,

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it could allow a jury to conclude that Crosby knowingly violated Arizona
law when he failed to certify and deliver the results to the Secretary of State
when he voted to table the issue. See A.R.S. §§ 16-642, -646 (2022). Such
conduct was, at a minimum, a step toward executing the goal of the alleged
conspiracy to commit election interference. The Board’s conduct occurred
in two counties: (1) in Cochise County, where the Board should have
certified and sent the election results, and (2) in Maricopa County, where
the Secretary of State should have received the Board’s certified election
results. See A.R.S. § 16-646 (2022). Thus, the State has met its burden of
proving by a preponderance of the evidence that venue is proper in
Maricopa County. See Mohr, 150 Ariz. at 566.

CONCLUSION

¶31 We accept special action jurisdiction but deny relief.

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

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