Don Shooter v. Toby Farmer

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
DON SHOOTER, INDIVIDUALLY,
Plaintiff/Appellant,

v.

TOBY FARMER, INDIVIDUALLY, REAL PARTY IN INTEREST; HELEN PURCELL,
IN HER OFFICIAL CAPACITY AS MARICOPA COUNTY RECORDER; BOARD OF
SUPERVISORS OF MARICOPA COUNTY, A PUBLIC ENTITY; ROBYN
STALLWORTH POUQUETTE, IN HER OFFICIAL CAPACITY AS YUMA COUNTY
RECORDER; YUMA COUNTY BOARD OF SUPERVISORS, A PUBLIC ENTITY;
SANDRA K. MARKHAM, IN HER OFFICIAL CAPACITY AS YAVAPAI COUNTY
RECORDER; YAVAPAI COUNTY BOARD OF SUPERVISORS, A PUBLIC ENTITY;
KEN BENNETT, IN HIS OFFICIAL CAPACITY AS ARIZONA SECRETARY OF
STATE,
Defendants/Appellees.

No. CV-14-0180-AP/EL
Filed July 29, 2014

Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
No. CV2014-008772
AFFIRMED

COUNSEL:

Timothy A. La Sota, Tiffany & Bosco, P.A., Phoenix, for Don Shooter

Keith Beauchamp, Roopali H. Desai, Coppersmith Brockelman PLC,
Phoenix, for Toby Farmer

William G. Montgomery, Maricopa County Attorney, M. Colleen Connor,
Deputy County Attorney, Phoenix, for Maricopa County Appellees

Thomas C. Horne, Arizona Attorney General, Michele L. Forney, Assistant
Attorney General, Phoenix, for Ken Bennett

SHOOTER V. FARMER
Opinion of the Court

The Court, by a panel comprising CHIEF JUSTICE BALES, VICE CHIEF
JUSTICE PELANDER, and JUSTICE TIMMER, issued its decision per
curiam.

PER CURIAM:

¶1 This petition challenge seeks to remove Toby Farmer’s name
from the primary ballot for the office of State Senator for Legislative District
13. Don Shooter appeals from the trial court’s order declining to remove
Farmer’s name based on alleged “petition forgery.” We entered an order
affirming the trial court’s judgment and denying Farmer’s request for
attorney’s fees, stating that a written decision would follow. This is that
decision.

I.

¶2 “[A]ll petitions . . . submitted by a candidate who is found
guilty of petition forgery shall be disqualified and that candidate shall not
be eligible to seek election to a public office for a period of not less than five
years.” A.R.S. § 16-351(F). In Moreno v. Jones, 213 Ariz. 94, 101 ¶ 38, 139
P.3d 612, 619 (2006), we held that the term “petition forgery” in § 16-351(F)
refers to the class 1 misdemeanor defined in A.R.S. § 16-1020. That statute
prohibits a range of conduct, the most relevant being “[a] person knowingly
signing any name other than his own to a nomination petition.” § 16-1020.
Thus, candidates suffer automatic disqualification and a ban of five or more
years if they sign another person’s name on their nomination petitions, or
if they knowingly cause another person to do the same. See A.R.S. § 13-303
(criminal liability based upon another’s conduct).

¶3 Shooter demonstrated at trial that seven of the signatures on
two of Farmer’s petition sheets were signed by persons other than the
voters whose names had been signed. He did not provide any evidence,
however, as to who had forged the signatures, and he chose not to call
Farmer as a witness. Farmer, on the other hand, presented a handwriting
expert who opined that Farmer had not signed the questioned signatures.
Shooter showed that Farmer had signed the circulator’s oath on both sheets,
attesting that he had been present when the signatures were signed. Farmer
signed the circulator’s oath on a total of thirty-three sheets, bearing 216
voter signatures. From these facts, Shooter asked the trial court to infer that
Farmer knew of the forgeries, which the court declined to do. Finding “no

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SHOOTER V. FARMER
Opinion of the Court

evidence” that Farmer knew of the forgeries, the court determined that
petition forgery had not been proved and therefore did not remove
Farmer’s name from the ballot.

II.

¶4 We defer to the trial court’s findings of fact unless they are
clearly erroneous. State v. Forde, 233 Ariz. 543, 556 ¶ 28, 315 P.3d 1200, 1213
(2014). Shooter argues that whether an inference ought to be drawn is a
matter of law. However, the inference that Shooter seeks is the presence of
a fact, namely, Farmer’s alleged knowledge of the forgeries. “The trial
court, not this court, weighs the evidence and resolves any conflicting facts,
expert opinions, and inferences therefrom.” In re Gen. Adjudication of All Rights
to Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340 ¶ 25, 9 P.3d 1069,
1079 (2000) (emphasis added).

¶5 Because we cannot say that the trial court’s factual findings
were clearly erroneous, we affirm the trial court’s ruling that petition
forgery was not proved. Even without the seven signatures that the trial
court found to be forgeries, Farmer still had hundreds more valid
signatures than he needed for his name to appear on the ballot.

¶6 Farmer requests attorney’s fees, arguing that Shooter’s
petition forgery claim was “without substantial justification,” A.R.S. § 12-
349(A)(1), meaning that it “is groundless and is not made in good faith,”
§ 12-349(F). Because we do not conclude that Shooter acted in bad faith, we
deny Farmer’s request for fees. We also deny his request for fees under
§ 12-349(A)(2)–(3).

III.

¶7 We therefore affirm the trial court’s judgment and deny
Farmer’s request for attorney’s fees.

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