Thomas P. Morrissey v. Logan Stan Garner

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
_____________________________________

THOMAS P. MORRISSEY, INDIVIDUALLY,
Plaintiff/Appellee,

v.

LOGAN STAN G ARNER, INDIVIDUALLY AND AS CHAIR OF UNITE PAYSON; ET
AL.
Defendants/Appellants.
_______________________________________

LOGAN STAN G ARNER, INDIVIDUALLY AND AS CHAIR OF UNITE PAYSON;
KIM CHITTICK, INDIVIDUALLY AND AS TREASURER OF UNITE PAYSON,
Counter-Claimants/Cross-Claimants/Cross-Appellants,

v.

THOMAS P. MORRISSEY, IN HIS O FFICIAL CAPACITY AS PAYSON MAYOR, ET
AL.,
Counter-Defendants/Cross-Defendants/Cross-Appellees.
_______________________________________

No. CV-19-0271-AP/EL
Filed April 21, 2020

_______________________________________

Appeal from the Superior Court in Gila County
The Honorable Randall Warner, Visiting Judge from Maricopa County
No. S0400CV201900287
AFFIRMED
________________________________________

THOMAS P. MORRISSEY V. LOGAN STAN GARNER, ET AL.
Opinion of the Court

COUNSEL:

Timothy A. La Sota, Timothy A. La Sota, PLC, Phoenix, Attorney for
Thomas P. Morrissey (in his individual capacity)

Eric H. Spencer, Ryan J. Regula, Snell & Wilmer, L.L.P., Phoenix, Attorneys
for Logan Stan Garner, Kim Chittick and Unite Payson

Aaron Arnson, Pierce Coleman, PLLC, Scottsdale, Attorney for Silva Smith,
Thomas P. Morrissey (in his official capacity), Jim Ferris, Chris Higgins,
Steven L. Smith, Janell Sterner, Suzy Tubbs-Avakian, Barbara Underwood
and Town of Payson

Jeff Dalton, Gila County Attorney’s Office, Globe, Attorney for Sadie Jo
Bingham, Tommie Martin, Tim R. Humphrey and Woody Cline

________________

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
GOULD, LOPEZ, BEENE and MONTGOMERY joined.
_______________

JUSTICE BOLICK, opinion of the Court:

¶1 On December 6, 2019, this Court issued an order affirming the
trial court’s ruling that defendants (collectively, “Unite Payson”) did not
obtain sufficient signatures to generate a recall election of plaintiff Mayor
Thomas P. Morrissey because the town clerk calculated the number of
required signatures based on a faulty reading of article 8, part 1, section 1
of the Arizona Constitution (the “Recall Provision”). In this opinion, we
explain our conclusion that the Constitution establishes the requisite
number of signatures based upon the number of voters in the most recent
election at which the candidate for the office at issue was voted into office.

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THOMAS P. MORRISSEY V. LOGAN STAN GARNER, ET AL.
Opinion of the Court

I. BACKGROUND

¶2 The Recall Provision of the Arizona Constitution provides for
the recall of an elected official. As pertinent here, it states that the “number
of . . . electors as shall equal twenty-five per centum of the number of votes
cast at the last preceding general election for all of the candidates for the
office held by such officer, may by petition, which shall be known as a recall
petition, demand his recall.” Ariz. Const. art. 8, pt. 1, § 1; see also A.R.S. § 19-
201(A).

¶3 Pursuant to Payson Town Code (“Code”) § 30.07(A)(1), if one
candidate for mayor or council receives a majority of votes in the
nonpartisan primary election, the candidate is declared elected on the date
of the general election. If not, a runoff between the top two candidates is
held at the general election. Code § 30.07(A)(3). Morrissey received a
majority of the votes cast for mayor in the August 28, 2018 primary election
and was declared elected at the November 6, 2018 general election.

¶4 Unite Payson, a political action committee, took out a petition
to recall Morrissey on August 12, 2019. Because all Payson mayoral
elections since 2002 were decided by primary election, the town clerk
determined that the number of signatures required for the recall petition
was twenty-five percent of the number of votes cast in the 2002 general
election, or 770 signatures. Unite Payson filed 970 signatures with the town
clerk, who invalidated forty signatures and transmitted the remainder to
the Gila County Recorder. The recorder invalidated 109 signatures, leaving
821 valid signatures, whereupon the town clerk called a recall election for
March 10, 2020.

¶5 Morrissey sued to enjoin the recall election, arguing that the
required number of signatures should be based on twenty-five percent of
the votes cast in the 2018 primary at which he was elected, which would be
1,255. The trial court agreed with Morrissey. The court noted that the
Recall Provision’s plain language “yields no answer” because “[t]he last
general election was 17 years ago, and the preceding election was the 2018
primary.” Although the Code referred to the August 2018 election as a

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primary, the court reasoned that the “nomenclature is less important than
the function that election served, which was to elect the Mayor.” Although
neither the 2002 general election nor the 2018 primary election was a
“perfect fit” with the constitutional language, the court concluded that
using the 2018 primary election as the baseline for recall signatures is “more
consistent with the Constitution’s purpose of measuring the number of
signatures needed to call a recall by the present state of the electorate. And
an election from 17 years ago cannot reasonably be considered ‘preceding.’”
The court enjoined the recall election based on insufficient signatures.

¶6 Unite Payson appealed to this Court. We have jurisdiction
pursuant to A.R.S. § 19-208.04.

DISCUSSION

¶7 This case turns entirely on constitutional interpretation,
which we review de novo. Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014).

¶8 As a general rule of constitutional interpretation, “clear and
unambiguous language is given its plain meaning unless absurd or
impossible consequences will result.” Dunn v. Indus. Comm’n of Ariz., 177
Ariz. 190, 194 (1994). We examine constitutional language in its overall
context to effectuate its purpose. Saban Rent-a-Car LLC v. Ariz. Dep’t of
Revenue, 246 Ariz. 89, 95 ¶ 21 (2019). We strive “to give meaning, if possible,
to every word and provision so that no word or provision is rendered
superfluous.” Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019).

¶9 “Ambiguity arises when the [provision’s] language is
reasonably susceptible to differing interpretations,” Premier Physicians Grp.,
PLLC v. Navarro, 240 Ariz. 193, 195 ¶ 9 (2016), or “if there is uncertainty
about the meaning or interpretation of a statute’s terms.” Hayes v. Cont’l
Ins. Co., 178 Ariz. 264, 268 (1994). When a provision is ambiguous, we look
to secondary sources such as dictionaries or legislative history to discern its
meaning. Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 28 ¶ 32 (2016).

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THOMAS P. MORRISSEY V. LOGAN STAN GARNER, ET AL.
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¶10 Unite Payson argues that the Recall Provision is unequivocal:
the “last preceding general election” is the most recent general election for
mayor, which occurred in 2002. Morrissey argues for a more functional
definition of “general election” to encompass a primary election that
determines the final outcome, which in his case was the 2018 primary
election. As both arguments are plausible and the Recall Provision does not
define “general election,” its meaning is ambiguous.

¶11 Unfortunately, no constitutional records pertaining to the
meaning of the Recall Provision exist to guide our inquiry. Dictionary
definitions of “general” and “primary” elections reflect the functional
approach urged by Morrissey. A primary is “a preliminary election at
which direct nominations of candidates for office are made.” Primary
Election, Webster’s New International Dictionary (2d ed. 1944); see also
Primary Election, Webster’s Third New International Dictionary (3d ed.
2002) (“an election in which qualified voters nominate or express a
preference for a particular candidate”). A “general election” is one “in
which every constituency chooses a representative.” General Election,
Webster’s (1944); see also General Election, Black’s Law Dictionary (9th ed.
2009) (“[t]he process of selecting a person to occupy an office”). Thus, a
primary is a preliminary election that decides which candidates proceed to
the general election, while a general election is one at which officeholders
are finally chosen.

¶12 This Court has applied that functional approach in defining
general and primary elections. As we stated in Kyle v. Daniels, a primary
election is “a competition for the party’s nomination, no more, no less, and
does not elect a person to office but merely determines the candidate who
will run for the office in the general election.” 198 Ariz. 304, 306 ¶ 10 (2000).
“In contrast, a general election actually determines which candidate will
hold the office.” Id.

¶13 Our Constitution’s general procedures for primary and
general elections also reflect this approach. Article 7, section 10 provides
for primary elections to “provide for the nomination of candidates” to “all
elective State, county, and city offices.” Meanwhile, article 7, section 11

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provides that “[t]here shall be a general election of representatives in
congress, and of state, county, and precinct officers” on a specified date in
November in even-numbered years.

¶14 However, article 7, section 11 omits any reference to cities or
towns. As a matter of constitutional interpretation, we presume that where
like-natured entities are listed but others are not, the omitted entities were
meant to be excluded. See City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz.
206, 211 ¶ 13 (2019) (“Expressio unius est exclusio alterius—the expression of
one item implies the exclusion of others—is appropriate when one term is
reasonably understood as an expression of all terms included in the
statutory grant or prohibition.”). This principle applies even more strongly
given that cities and towns are expressly covered by article 7, section 10’s
provision governing primary elections but are not included in article 7,
section 11. Thus, we conclude that cities and towns are meant to be
excluded from the constitutional provision establishing the purpose and
timing for general elections.

¶15 The legislature filled the gap left by the Constitution,
expressly authorizing cities and towns to use primary elections to elect local
officials. Arizona Revised Statutes § 9-821.01(D) provides that “a city or
town may by ordinance provide that at the primary election any candidate
for the office of mayor or city council who receives a majority of all votes
cast at that election for that office is declared elected to the office for which
the person is a candidate, effective as of the date of the general election, and
a further election may not be held as to such candidate.” Section 9-821.01(F)
provides further that where no candidate receives a majority of votes in the
primary election, the contest will proceed to a “general or runoff election.”

¶16 Through these provisions, the legislature, acting pursuant to
its constitutional authority, provided to cities and towns a choice to use the
primary not just to nominate but also to elect candidates under prescribed
conditions. If no candidate receives a majority of votes, the primary
whittles down the number of candidates for the general election. But when
a candidate receives a majority of votes, the primary effectively functions
as the general election, for the voters at that election will have chosen who

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THOMAS P. MORRISSEY V. LOGAN STAN GARNER, ET AL.
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will serve. Indeed, the statute deems that a candidate for mayor or council
receiving a majority of votes in the primary election will not be “declared
elected” until the date of the general election. For purposes of the Recall
Provision, the votes cast in a primary election determine the general
election. A.R.S. § 9-821.01(D).

¶17 This is precisely the system Payson adopted, providing for the
primary election to serve as the general election when a majority of voters
choose a candidate for mayor. See Code § 30.07. Morrissey was declared
elected in November 2018 by a majority of the votes cast in the August 2018
primary election. Thus, the town clerk should have based the number of
signatures required for a recall election on twenty-five percent of the votes
cast in that election.

¶18 A different reading would produce anomalous results. For
instance, a town (like Payson) in which the last general election was many
years ago might now have a markedly smaller or larger population, thus
linking the required signatures to a number bearing little relationship to the
election at which the relevant official was elected. And as Morrissey points
out, a new city or town adopting a system like Payson’s that elected its first
mayor at a primary election would never have held a general election for
that office. In such circumstances, the reading of the constitutional
provision urged by Unite Payson would thwart a recall. Treating a primary
at which candidates are effectively elected as a general election, as the
Constitution and statutes permit cities and towns to do, is the proper basis
for determining the requisite number of signatures for a recall petition.

CONCLUSION

¶19 For the foregoing reasons, we affirm the trial court’s ruling.

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