Rogers v. Cook

SUPREME COURT OF ARIZONA

WENDY ROGERS, individually, ) Arizona Supreme Court
) No. CV-24-0084-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV2024-008715
DAVID COOK, individually, et al., )
)
Defendants/Appellees. )
)
__________________________________) FILED 05/09/2024

DECISION ORDER

The Court, by a panel consisting of Chief Justice Brutinel,

Justice Bolick, Justice Lopez, and Justice Beene, has considered

the record, the parties’ briefs, the trial court’s under

advisement ruling following trial, and the relevant legal

authorities in this expedited election matter.

Appellant appeals the trial court’s ruling that Appellee, a

Republican candidate for state senate representing Legislative

District 7, had more than the 595 valid signatures required to

appear on the ballot. Appellant claims that the trial court

erred in failing to invalidate 132 out-of-district signatures

and in failing to invalidate either all, or at least 66,

signatures collected by circulator Jason Wessel on the ground

that he forged signatures and falsely certified petitions.

This Court will “uphold a trial court's findings of fact

unless clearly erroneous as not either ‘supported by reasonable

evidence or based on a reasonable conflict of evidence.’” Moreno

Arizona Supreme Court No. CV-24-0084-AP/EL
Page 2 of 4

v. Jones, 213 Ariz. 94, 98 ¶ 20 (2006) (quoting O’Hern v.

Bowling, 109 Ariz. 90, 92–93 (1973)); Shooter v. Farmer, 235

Ariz. 199, 200 ¶ 4 (2014). Here, the Court cannot conclude that

the trial court’s failure to find that Wessel committed forgery

was clearly erroneous.

Contrary to Appellant’s arguments, the trial court did not

rule that Appellant’s challenge to the signatures collected by

Wessel failed because there was no direct evidence Wessel forged

signatures or because the counties had already invalidated

signatures collected by Wessel for not matching a signature on

file. Rather, the trial court was simply noting these facts as a

part of its findings, just as it noted Appellant’s evidence of

forgery--the testimony of four witness that they had not signed

petitions circulated by Wessel and the testimony of a Gila

County recorder who had a concern about fraudulent signatures on

petitions circulated by Wessel--and the conflicting trial

evidence--Wessel’s testimony denying he had forged signatures.

Considering this evidence and the trial court’s superior

position to “weigh[] the evidence and resolve[] any conflicting

facts, expert opinions, and inferences therefrom,” the trial

court’s finding that Appellant failed to prove by clear and

convincing evidence that Wessel committed forgery was not

clearly erroneous, and it therefore did not err in failing to

invalidate any further signatures collected by Wessel. See

Arizona Supreme Court No. CV-24-0084-AP/EL
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Shooter, 235 Ariz. at 200 ¶ 4 (quoting In re Gen. Adjudication

of All Rights to Use Water in Gila River Sys. & Source, 198

Ariz. 330, 340 ¶ 25 (2000)).

Given our resolution of this issue, the disposition of

Appellant’s remaining claim related to the alleged 132 out-of-

district signatures is moot. See Ross v. Bennett, 228 Ariz. 174,

181 ¶ 38 (2011). The parties do not dispute that Appellee

collected 781 valid signatures after the counties’ review and

that 595 were required to qualify for the ballot. Thus, even if

Appellant’s challenge to the 132 out-of-district signatures

prevailed, Appellee would still have 649 signatures, 54 more

than necessary to qualify for the ballot. Accordingly,

IT IS ORDERED that the trial court’s ruling is affirmed.

David Cook is eligible for placement on the ballot for the

primary election to be held on July 30, 2024, as a Republican

candidate for State Senator for Legislative District 7.

IT IS FURTHER ORDERED that the Clerk of Court issue the

mandate in this matter immediately.

DATED this ___9th day of May, 2024.

______/s/____________________
ROBERT BRUTINEL
Chief Justice

Arizona Supreme Court No. CV-24-0084-AP/EL
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TO:

Timothy A LaSota
Jason S Moore
Craig C Cameron
Roy Herrera
Daniel A Arellano
Jane Ahern
Austin T Marshall
Rose Winkeler
Jefferson R Dalton
Joshua M Conway
Hon John L Blanchard, Judge
Hon Jeff Fine, Clerk
Alberto Rodriguez
**** ****
Karen J Hartman-Tellez
Kara Karlson
Kyle R Cummings