McClung v. Bennett

SUPREME COURT OF ARIZONA
En Banc

MICHAEL McCLUNG, a citizen and ) Arizona Supreme Court
qualified elector in the State ) No. CV-10-0183-AP/EL
of Arizona, )
) Maricopa County
Plaintiff-Appellant, ) Superior Court
) No. CV2010-019503
v. )
)
HON. KEN BENNETT, in his )
official capacity as Arizona ) O P I N I O N
Secretary of State, HON. HELEN )
PURCELL, in her official )
capacity as Maricopa County )
Recorder, MARICOPA COUNTY BOARD )
OF SUPERVISORS in their official )
capacity, HON. LAURA DEAN-LYTLE )
in her official capacity as )
Pinal County Recorder, PINAL )
COUNTY BOARD OF SUPERVISORS in )
their official capacity, HON. F. )
ANN RODRIGUEZ in her official )
capacity as Pima County Recorder, )
PIMA COUNTY BOARD OF )
SUPERVISORS in their official )
capacity, HON. SUZANNE SAINZ in )
her official capacity as Santa )
Cruz County Recorder, SANTA CRUZ )
COUNTY BOARD OF SUPERVISORS in )
their official capacity, HON. )
ROBYN POUQUETTE in her official )
capacity as Yuma County Recorder, )
YUMA COUNTY BOARD OF )
SUPERVISORS in their official )
capacity, HON. SHELLY BAKER in )
her official capacity as La Paz )
County Recorder, LA PAZ COUNTY )
BOARD OF SUPERVISORS, in their )
official capacity, )
)
Defendants-Appellees, )
)
And )

)
JOSEPH SWEENEY, )
)
Defendant-Appellee. )
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable John C. Rea, Judge

AFFIRMED
________________________________________________________________

WILLIAM EDWARD CONNER, L.L.M. El Mirage
By William Edward Conner
Attorneys for Michael McClung

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary R. O’Grady, Solicitor General
Barbara A. Bailey, Assistant Attorney General
James E. Barton, II, Assistant Attorney General
Attorneys for Ken Bennett

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Daniel S. Jurkowitz, Deputy County Attorney
Attorneys for F. Ann Rodriguez and
Pima County Board of Supervisors

MARICOPA COUNTY OFFICE OF Phoenix
GENERAL LITIGATION SERVICES
By Laurence G. Tinsley, Jr., Senior General Counsel
Colleen Connor, Assistant General Counsel
Karen J. Hartman-Tellez, Assistant General Counsel
Attorneys for Helen Purcell,
Maricopa County Board of Supervisors,
Laura Dean-Lytle, Pinal County Board of Supervisors,
Suzanne Sainz, Santa Cruz County Board of Supervisors,
Robyn Pouquette, Yuma County Board of Supervisors,
Shelly Baker, and La Paz County Board of Supervisors

Joseph Sweeney Tucson
In Propria Persona
________________________________________________________________

B E R C H, Chief Justice

¶1 On June 28, 2010, this Court issued an order affirming

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the superior court’s judgment in this election case. We now

explain the basis for our decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Michael McClung challenged signatures on Joseph

Sweeney’s nominating petitions to appear on the ballot for the

United States House of Representatives for Congressional

District 7 (CD-7). Sweeney needed 381 valid signatures to

qualify for the Republican primary ballot; he turned in

petitions bearing 577. McClung’s complaint challenged 282

signatures, identifying them by petition and line number and

stating the reason for each challenge. The county recorders

reviewed the challenged signatures for disqualification and

issued reports to all parties on June 14. The Pima County

Recorder invalidated 188 signatures and the Santa Cruz County

Recorder invalidated three, leaving Sweeney with 386 valid

signatures, five more than the minimum necessary to qualify for

the ballot.

¶3 Three days later, on June 17, the superior court held

an evidentiary hearing at which McClung contested nine

signatures not disqualified by the Pima County Recorder. For

two of the signatures, as alleged in the complaint, McClung

disputed that the person signing was registered in CD-7. As to

seven other signatures, McClung changed the basis of the

challenge without amending his complaint or otherwise giving

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advance notice to the other parties. His complaint alleged that

these signatures were not those of registered voters, but at the

hearing, he argued for the first time that the seven signatures

were from persons who lived “out of district.”

¶4 In denying McClung’s request to invalidate the

signatures, the trial judge refused to allow McClung to urge “a

ground for challenge that is completely different from the

challenge alleged in the complaint.” Allowing such a challenge,

he concluded, would deny due process to Sweeney because he “had

no advance notice or opportunity to present evidence” on the new

ground McClung advanced. The judge further observed that, had

he reached the merits of the new challenges, he would have

invalidated only five of the signatures, leaving Sweeney with

381 valid signatures, just enough to qualify for the ballot.

¶5 We have jurisdiction over McClung’s appeal under

Arizona Revised Statutes (A.R.S.) § 16-351(A) (2006) and Arizona

Rule of Civil Appellate Procedure 8.1(h).

II. DISCUSSION

¶6 The superior court judge concluded that McClung’s

change of theory as the hearing began deprived Sweeney of a

meaningful opportunity to prepare a defense. McClung claims

that the court erred by so ruling.

¶7 Election challenges must be initiated and completed

within an abbreviated time frame to enable public officials to

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check signatures, verify petitions, and print and disseminate

ballots within the time limits set by state and federal law.

For that reason, among others, we presume the validity of

nominating petitions that have been circulated, signed, and

filed, and we assign to the party challenging a petition the

burden of proving by clear and convincing evidence that a

signature was not that of a qualified elector. Jenkins v. Hale,

218 Ariz. 561, 562-63 ¶ 8, 190 P.3d 175, 176-77 (2008).

¶8 But “the short time period allotted for actions

challenging nomination petitions may not [be permitted to]

deprive a defendant of his or her opportunity to present [a]

case in opposition to that of the plaintiff.” Mandraes v.

Hungerford, 127 Ariz. 585, 587-88, 623 P.2d 15, 17-18 (1981).

“Due process requires that a party have an opportunity to be

heard at a meaningful time and in a meaningful manner.” Id. at

588, 623 P.2d at 18.

¶9 Any party challenging the nomination of a candidate to

office must specify “the petition number, line number and basis

for the challenge for each signature being challenged.” A.R.S.

§ 16-351(A). McClung did initially specify grounds for

challenging 282 signatures. Those listed grounds provided

Sweeney with the opportunity to prepare to rebut those grounds

at the June 17 hearing. At the hearing, however, McClung

attempted to assert new grounds for challenging signatures

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without having given notice to Sweeney or the other parties.

¶10 The trial judge, who was in the best position to assess

the situation, determined that notice was inadequate,

prejudicing Sweeney by depriving him of an opportunity to

prepare to meet McClung’s new allegations. See State v. Smith,

215 Ariz. 221, 233 ¶ 55, 159 P.3d 531, 543 (2007) (noting “the

deference given [to] prejudice assessments” in making a due

process determination). The record here justifies the judge’s

concern. McClung had sufficient information, time, and

opportunity before the hearing to alert the other parties to the

changed grounds for his challenges so that they would have a

meaningful opportunity to prepare to rebut them, but he failed

to give appropriate notice.

¶11 McClung relies on Lubin v. Thomas, 213 Ariz. 496, 499

¶ 19, 144 P.3d 510, 513 (2006), to support his argument that one

may challenge signatures on any ground of invalidity, whether or

not previously raised. He reasons that if a county recorder may

take the initiative to strike signatures on grounds not urged by

the challenger, then the challenger may also seek to invalidate

signatures on grounds not previously specified.

¶12 McClung’s reliance on Lubin is misplaced for several

reasons. First and foremost, when, as in Lubin, the recorder

invalidates a nominating signature, it identifies the reason in

a report, which provides all parties advance notice and an

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opportunity to prepare to respond at the hearing on the

challenge to the nominating petitions.

¶13 Second, Lubin merely held that “the County Recorder, in

reviewing challenged nomination petition signatures, may

invalidate signatures for legitimate reasons other than those

specifically alleged in the challenger’s complaint.” Id. It

does not obligate a county recorder to search for defects other

than those asserted by the challenger.1

¶14 Finally, nothing in Lubin authorizes a party to

belatedly identify new grounds for challenge without giving

notice to the affected candidate. Under A.R.S. § 16-351(A), the

challenger must specify the reasons for challenging particular

signatures. The recorders’ reports identify the bases for

invalidating signatures. These procedures provide notice to all

parties, permit time to prepare a response, and prevent the

ambush that might otherwise occur at hearings on nomination

challenges. If the challenger wishes to contest signatures for

reasons other than those identified in the complaint or

recorders’ reports, he must notify the affected parties and the

court. Here, McClung’s failure to advise Sweeney of the

1
Although Lubin does not impose a legal obligation on county
recorders to investigate reasons for disqualification in
addition to the grounds alleged, we do not suggest that
recorders should not do so when time and other circumstances
permit, nor would we condone disregard of obvious flaws in
petitions, even when not specifically set forth in a
challenger’s complaint.
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specific grounds of challenge deprived Sweeney of the

opportunity to prepare and consequently impaired his right to a

fair hearing.

¶15 Apart from the due process concerns, we would deny

McClung’s appeal for two additional reasons. First, he has not

established that the trial court erred in concluding that four

of the questioned signatures were valid, which would leave

Sweeney with sufficient signatures to qualify for the ballot.

See Jenkins, 218 Ariz. at 562-63 ¶ 8, 190 P.3d at 176-77 (noting

that challenger bears the burden of proof by clear and

convincing evidence). Moreover, McClung’s belated prosecution

of this appeal, which he filed on the last day of the statutory

deadline, would warrant dismissal on the grounds of laches,

because his dilatory conduct left Sweeney with only one day to

file his response brief, jeopardized election officials’ timely

compliance with statutory deadlines, see A.R.S. § 16-543.01(C)

(2006); 42 U.S.C. § 1973ff-1 (2003), and required the Court to

decide this matter on an unnecessarily accelerated basis, see

Lubin, 213 Ariz. at 497-98 ¶¶ 9-11, 144 P.3d at 511-12 (quoting

Mathieu v. Mahoney, 174 Ariz. 456, 459, 460, 851 P.2d 81, 84, 85

(1993) (citation omitted), for proposition that delay may cause

courts to “steamroll through . . . delicate legal issues in

order to meet” ballot printing deadlines, which may “seriously

compromise[]” judicial decision making).

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III. CONCLUSION

¶16 For the reasons noted, we affirm the judgment of the

trial court.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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