McGee v. Syms

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT MCGEE, Plaintiff/Appellee,

v.

MARK SYMS, Defendant/Appellant.

No. 1 CA-CV 18-0517
FILED 11-12-2019

Appeal from the Superior Court in Maricopa County
No. CV 2018-008775
The Honorable Christopher A. Coury, Judge
The Honorable Margaret R. Mahoney, Judge

AFFIRMED

COUNSEL

Goldman & Zwillinger, PLLC, Scottsdale
By Mark D. Goldman, Jeremy Phillips
Counsel for Defendant/Appellant

Ballard Spahr, LLP, Phoenix
By Joseph A. Kanefield, Mark S. Kokanovich, Ian O. Bucon
Counsel for Plaintiff/Appellee
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MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Mark Syms appeals from the superior court’s amended final
judgment as well as its orders denying his motions for change of judge and
new trial. For the following reasons, we affirm.

BACKGROUND

¶2 To secure a place on the November 6, 2018 general election
ballot as an independent candidate for State senate, Syms submitted
nomination petitions, which ostensibly included more than 2,100
signatures collected from qualified electors in Legislative District 28 (“the
district”), to the Secretary of State. See A.R.S. §§ 16-314, -322 (setting forth
the requirements for placement on the ballot). Less than two weeks later,
Robert McGee, a qualified elector from the district and the spouse of the
district’s incumbent candidate, filed a complaint challenging the legal
sufficiency of Syms’ nomination petitions pursuant to A.R.S. § 16-351.
Apart from his claim that most of the petitions’ signatures were invalid,
McGee also requested an award of his reasonable attorney fees and costs
pursuant to A.R.S. § 12-349. In his answer, Syms challenged the
admissibility of the Maricopa County Recorder’s (“County Recorder”)
report (“the report”), which supported McGee’s claim, and asserted that
only a qualified expert could offer testimony comparing handwriting
exemplars.

¶3 At an expedited hearing, the County Recorder testified that
the Maricopa County Recorder’s Office (“the County Recorder’s Office”)
has a “practice and custom,” developed over many years, to prepare reports
in response to lawsuits challenging the sufficiency of petition signatures.
Notwithstanding this long-standing tradition, the County Recorder stated
that he has no statutory obligation to perform such a task; rather, he does
so only as “a courtesy” to the courts.

¶4 When asked about his training and the signature verification
process, the County Recorder testified that he and his staff receive FBI-

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caliber training in handwriting identification and compare electors’ petition
signatures with the signatures on file from the electors’ original voter
registration forms. In addition, to verify the validity of petition signatures,
the County Recorder’s Office also ascertains whether the individuals who
signed the petition: (1) are registered to vote; (2) are registered in the correct
party; (3) have signed more than once; and (4) live within the applicable
legislative district. See A.R.S. § 16-321 (establishing the parameters for
petition signatures).

¶5 The County Recorder testified that his office conducted a
signature verification of Syms’ nomination petitions and issued a report of
its findings. When McGee moved to admit the report, Syms’ counsel
objected on relevance grounds. The superior court overruled the objection,
concluding any alleged deficiencies in the report went to the report’s weight
rather than its admissibility. With the report admitted, the County Recorder
testified that Syms’ nomination petition contained 1,675 invalid signatures.

¶6 After the County Recorder testified, McGee called Anthony
Garcia, a named circulator on Syms’ nomination petition, to testify.
Although Garcia acknowledged that he is employed as a professional
circulator, he denied circulating any petition sheets on Syms’ behalf.

¶7 In response, Syms testified that his campaign hired a
company to collect signatures and he did not personally employ any
circulators. When asked whether he noticed any irregularities in the
petition sheets before he submitted them to the County Recorder’s Office,
Syms admitted he had noticed that the addresses appeared to be written in
the same handwriting. He explained, however, that he asked about the
handwriting and was told that the circulators wrote the addresses, not the
electors. In response, McGee’s counsel confronted Syms with a statement
Syms had recently made to the media, asserting that he was a victim of
fraud. Syms clarified that he had no knowledge of any fraud at the time he
submitted his nomination petitions.

¶8 Following the evidentiary hearing, the superior court issued
a signed order finding, in relevant part, that the County Recorder’s
determination that most of the petition signatures did not match voter
records was corroborated by other evidence. Specifically, the court cited: (1)
Garcia’s testimony that he never collected signatures on Syms’ behalf; (2)
the parties’ stipulation that at least one signature was forged; and (3) the
purported daily collection of signatures by Syms’ circulators, which was
“remarkabl[y]” high. Discounting the signatures invalidated by the report,

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the court found that Syms had failed to submit the requisite signatures to
qualify for placement on the general election ballot.

¶9 Consistent with A.R.S. § 16-351, Syms immediately appealed
the superior court’s ruling to the supreme court. McGee, in turn, moved to
“amend the judgment” to include Arizona Rule of Civil Procedure (“Rule”)
54(b) language reflecting that his claims for attorney fees and costs were
still pending in the superior court. After the appellate matter was fully
briefed, the supreme court entered a signed order affirming the superior
court, finding “abundant” evidence that Syms had not produced “enough
valid signatures to qualify for the ballot.”

¶10 After the supreme court issued its order, the superior court
considered McGee’s motion for attorney fees and costs and concluded that
Syms defended McGee’s claims without substantial justification and
primarily for delay and harassment, and in so doing, unreasonably
expanded and delayed the proceedings, justifying a fee award under A.R.S.
§ 12-349. Based on that determination, the court entered an “amended final
judgment” that included an award of attorney fees and costs to McGee in
the amount of $50,733.

¶11 Following the superior court’s entry of the “amended final
judgment,” Syms moved for a change of judge for cause, arguing the
superior court judge, the Honorable Christopher Coury, had failed to
disclose “unwaivable” conflicts of interest and therefore his orders must be
vacated. Raising the same claims, Syms also moved for a new trial.

¶12 Consistent with Rule 42.2(e), the Honorable Margaret
Mahoney considered the merits of Syms’ motion for change of judge. After
reviewing the relevant portions of the record, Judge Mahoney concluded
Syms’ assertion that Judge Coury was biased or prejudiced was without
merit and denied the motion for change of judge. Because Syms’ motion for
new trial was predicated on his challenge to Judge Coury for cause, the
superior court likewise denied Syms’ motion for new trial. Syms timely
appealed.

DISCUSSION

I. The Superior Court Retained Jurisdiction to Enter the Attorney
Fees and Costs Award.

¶13 Syms contends his appeal to the supreme court from the
signed order enjoining him from appearing on the ballot divested the
superior court of jurisdiction. According to Syms, the superior court

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therefore lacked authority to enter the subsequent “amended final
judgment,” which included an award for attorney fees and costs.

¶14 Whether the superior court “had jurisdiction to enter the
order from which this appeal has been taken” is an issue of law that we
review de novo. Danielson v. Evans, 201 Ariz. 401, 411, ¶ 36 (App. 2001). In
general, a superior court is divested of jurisdiction upon the filing of a
notice of appeal, but this rule “is not absolute” and there are many “well
established exceptions.” In re Johnson, 231 Ariz. 228, 230, ¶ 7 (App. 2012)
(internal quotations omitted). While a final judgment is not appealable
under A.R.S. § 12-2101(A)(1) unless ordered pursuant to Rule 54(b)
(governing a “final judgment as to one or more, but fewer than all, claims
or parties”) or (c) (governing a final judgment disposing of “all claims” by
all parties), other statutes “authorize appeals of various rulings that are not
“‘final judgments’ under A.R.S. § 12-2101(A)(1).” Brumett v. MGA Home
Healthcare, L.L.C., 240 Ariz. 420, 425, 427, ¶¶ 2, 9 (App. 2016).

¶15 In this case, the superior court’s signed order enjoining Syms
from appearing on the ballot did not constitute a “final judgment” for
purposes of A.R.S. § 12-2101(A)(1). Instead, the court’s order was
immediately appealable pursuant to A.R.S. § 16-351(A), the statute
governing challenges to nomination petitions. The plain language of the
statute requires a superior court to “hear and render a decision” on a
nomination petition challenge “[w]ithin ten days after the filing of the
action,” and any appeal from that decision must be submitted directly to
the supreme court “within five days after” the superior court’s decision.
A.R.S. § 16-351(A).

¶16 Notably, Syms seemingly acknowledged that the superior
court retained jurisdiction to enter a subsequent fee award following his
appeal to the supreme court, as reflected in his response to McGee’s motion
“to amend the judgment.” Specifically, Syms asserted that an amended
ruling referencing Rule 54(b) was unnecessary because the superior court’s
signed order did not contain Rule 54(c) language denoting finality and
therefore the parties’ rights or liabilities could not be “inadvertent[ly]
extinguish[ed].” In response to McGee’s motion for an award of attorney
fees, Syms urged the superior court to delay ruling on the motion until the
supreme court issued its decision establishing the ultimate prevailing party
in the case. By his own admission, Syms’ appeal to the supreme court was
not from a “final judgment,” and the superior court had jurisdiction to enter
the award of attorney fees and costs.

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II. The Supreme Court’s Order Did Not Foreclose an Award of
Attorney Fees and Costs in the Superior Court.

¶17 Syms contends the supreme court’s order, which denied
McGee’s request for attorney fees, precluded the superior court from
entering an attorney fees award. Syms asserts that the supreme court’s
denial of McGee’s request for attorney fees applied to McGee both as the
plaintiff in the superior court and as the appellee in the supreme court. We
disagree.

¶18 In his answering brief to the supreme court, McGee requested
an award of his “reasonable attorneys’ fees and costs incurred on appeal
pursuant to A.R.S. § 12-349.” This request for attorney fees was
accompanied by a footnote explaining that the superior court had not
entered a final judgment pursuant to Rule 54(c) and therefore McGee’s
request for attorney fees in the superior court “remain[ed] pending before
Judge Coury.” In the event it found otherwise, however, McGee asked the
supreme court to “remand the case” to the superior court for consideration
of his attorney fees request.

¶19 In its order, the supreme court summarily denied McGee’s
attorney fees request, stating, “IT IS FURTHER ORDERED
Plaintiff/Appellee’s request for attorney’s fees is denied.” Contrary to
Syms’ contention, this language cannot reasonably be construed as denying
McGee’s request for attorney fees in the superior court. As unambiguously
reflected in his answering brief, McGee requested only that the supreme
court award him attorney fees and costs incurred on appeal, not his
attorney fees and costs incurred in the superior court. Equally important,
the naming convention the supreme court used in its order,
“Plaintiff/Appellee,” was consistent with McGee’s official designation on
appeal and the supreme court’s caption, and therefore did not connote an
intent to deny McGee’s pending request for attorney fees incurred in the
superior court.

III. The Superior Court Properly Imposed Sanctions Against Syms
Under A.RS. § 12-349 for McGee’s Attorney Fees.

¶20 Syms contends the superior court improperly awarded
McGee attorney fees under A.R.S. § 12-349. Distilled, Syms raises three
challenges, arguing: (1) the imposition of attorney fees in an action
challenging a nomination petition is contrary to public policy and may
discourage political involvement and limit ballot access; (2) his defense to
McGee’s nomination petition challenge was not groundless, did not

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constitute harassment, and was made in good faith; and (3) the awarded
attorney fees and costs are excessive.

¶21 Under A.R.S. § 12-349(A), the court “shall assess reasonable
attorney fees, expenses and, at the court’s discretion, double damages . . . if
the attorney or party”: (1) brings or defends a claim without substantial
justification; (2) brings or defends a claim solely or primarily for delay or
harassment; (3) unreasonably expands or delays the proceeding; or (4)
engages in abuse of discovery. As defined within the statute, the phrase
“‘without substantial justification’ means that the claim or defense is
groundless and is not made in good faith.” A.R.S. § 12-349(F).

¶22 We review the superior court’s application of A.R.S. § 12-349
de novo, but in so doing, we view “the evidence in a manner most favorable
to sustaining the award” and affirm unless the superior court’s findings are
“clearly erroneous.” Phoenix Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237,
243–44, ¶ 7 (App. 1997). We may affirm the superior court’s ruling “if it is
correct for any reason apparent in the record.” Forszt v. Rodriguez, 212 Ariz.
263, 265, ¶ 9 (App. 2006).

A. The Superior Court Properly Applied A.R.S. § 12-349 to the
Nomination Petition Challenge.

¶23 In the absence of a “dedicated” statute or rule providing for
an award of attorney fees and costs to a party who successfully challenges
a nomination petition, Syms argues that a prevailing challenger should bear
his own litigation expenses. Relying primarily on public policy
considerations, Syms asks us to preclude application of A.R.S. § 12-349 to
nomination petition challenges, asserting the specter of punitive attorney
fee awards may dissuade political participation.

¶24 By its own terms, A.R.S. § 12-349 applies to any civil action
commenced or appealed in the State unless expressly “inconsistent with
another statute.” A.R.S. § 12-349(A). Although Syms correctly notes that no
Title 16 statute provides for an award of attorney fees to a nomination
petition challenger, it is equally true that no statute precludes an award.
The only marginally relevant statute on this point, A.R.S. § 16-351.01,
authorizes a court to award the county recorder any reasonable expenses
incurred during the signature verification process if the court determines
that the candidate knowingly or recklessly submitted a petition containing
“a substantial number of invalid signatures.” Given the breadth of A.R.S.
§ 12-349’s stated scope, and the absence of any contradictory provision in
Title 16, we find no basis to preclude application of the statute to

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nomination petition challenges. But cf. Kromko v. Superior Court, 168 Ariz.
51, 61 (1991) (denying the prevailing, defending party’s request for attorney
fees, explaining he had failed to “cite express authority” for such an award
and the court “desire[d] to avoid placing a chill on future petition
challenges by private citizens”).

B. The Superior Court’s Findings Are Supported by the
Record.

¶25 Syms contends the superior court improperly found his
defense was groundless and not in good faith. First, he argues the court set
forth inconsistent and irreconcilable findings in its orders enjoining him
from appearing on the ballot and awarding attorney fees. Second, he asserts
that his defense to the nomination petition challenge—that Title 16 fails to
provide “statutory guidance” regarding the role of the County Recorder—
raised a “legitimate concern” that was “echoed by the Arizona Supreme
Court.”

¶26 The superior court’s findings are neither inconsistent nor
mutually exclusive. While the court’s order enjoining him from appearing
on the ballot included a finding that Syms did not directly or knowingly
engage in the fraudulent collection of signatures, that finding addressed
only Syms’ lack of personal culpability for the commission of the fraud. In
contrast, the court’s subsequent findings that Syms consciously
disregarded multiple overt indications of fraud in the signature collection
process and ultimately raised an unreasonable defense to the nomination
petition challenge related to Syms’ knowledge of the fraud at the time he
submitted his nomination petition, mounted his defense, and participated
in the court proceedings.

¶27 Similarly, Syms’ contention that the supreme court
legitimized his concerns regarding the statutory role of the County
Recorder both mischaracterizes his defense and misconstrues the supreme
court’s order. Syms argued at length that neither the County Recorder’s
testimony nor his report was admissible to prove that the petitions’
signatures were invalid. Contrary to Syms’ argument, the supreme court
expressed no concerns regarding the admissibility of the County Recorder’s
report or testimony. Instead, the supreme court highlighted “the significant
role the county recorder’s comparison of signatures often plays in petition
challenges,” expressed concern that the County Recorder considered this
vital task a mere “courtesy” to the courts and urged the legislature to clearly
define the County Recorder’s statutory duties.

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¶28 Well established caselaw recognizes that the County
Reporter’s findings and conclusions are routinely presented to the superior
court as part of nomination petition challenges. See, e.g., Lubin v. Thomas,
213 Ariz. 496, 497–99 ¶¶ 5, 12–18 (2006). Given Syms’ notice of the County
Recorder’s report in this case, his admission that he had noticed
irregularities with the petition signatures before he submitted them, and his
representation to the media that he was the victim of fraud before the
evidentiary hearing, we cannot say the superior court erred by finding his
defense was groundless and not in good faith.1

C. The Superior Court’s Award of Attorney Fees and Expenses
Under A.R.S. § 12-349 Is Appropriate.

¶29 Syms contends the superior court improperly “shifted”
McGee’s “entire fee” to one of his attorneys rather than limiting the attorney
fees award to “specific expenditures” incurred as a result of Syms’ “alleged
bad acts.” He also asserts the court improperly awarded McGee $5,000 in
non-taxable costs.

¶30 In its order awarding McGee attorney fees and costs, the
superior court explained, in detail, its basis for imposing sanctions: (1)
“Syms’ defense was implausible and unreasonable”; (2) “Syms ignored and
consciously disregarded the likelihood that he had submitted a significant
number of invalid signatures”; (3) Syms’ “lack of due diligence” was
“particularly troubling”; (4) Syms filed his nomination petition “without
regard for the risk of forged or fraudulent signatures” as demonstrated by
numerous fraud indicators, such as the similarity of the handwriting,
consecutive addresses, and the large number of signatures purportedly
collected in one day; and (5) Syms “essentially played ‘ostrich’ and pressed
on toward the hearing” when confronted with the fraud by both the
complaint and the media. From these findings, it is apparent that the court
found Syms knew or should have known that his nomination petitions
were predicated on fraud at the time he submitted them to the County
Recorder’s Office. Because the record supports the court’s findings, we
cannot say that the court erred by holding Syms financially responsible for
the attorney fees McGee incurred.

1 Because the record supports the superior court’s finding that his
defense was groundless and not in good faith, we need not reach Syms’
alternative arguments that the court improperly found he defended the
petition challenge primarily for delay or harassment or unnecessarily
expanded or delayed the proceedings.

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¶31 Likewise, the record supports the superior court’s award of
$5,000 for fees charged by the vendor who reviewed and prepared
spreadsheets summarizing defects in the nomination petition. In general,
non-taxable costs are not recoverable as part of an attorney fees award.
Ahwatukee Custom Estates Management Ass’n, Inc. v. Bach, 193 Ariz. 401, 402–
03, ¶¶ 7–8 (1999). However, A.R.S. § 12-349(A) expressly authorizes a court
to assess expenses and damages, in addition to reasonable attorney fees.
Accordingly, we affirm the attorney fees and costs award.

IV. The Superior Court Properly Denied Syms’ Motions for Change of
Judge and New Trial.

¶32 Syms argues Judge Mahoney denied his motion for change of
judge without properly considering and crediting three experts’ opinions
that Judge Coury should have recused himself. He also contends that Judge
Coury erred by failing to sua sponte disclose his potential conflicts and
recuse himself.

¶33 A judge is presumed to be “free of bias and prejudice.”
Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 568, ¶ 21 (App.
2013) (internal quotation omitted). To overcome this presumption, a party
challenging a judge’s impartiality must present a specific basis for an
assertion of bias and prove bias by a preponderance of the evidence. Simon
v. Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010). This bias must arise
from an extrajudicial source and not from the judge’s participation in the
case; a judge’s rulings, alone, do not demonstrate bias. Id. We review the
denial of a motion for change of judge based on a claim of judicial bias for
an abuse of discretion. Stagecoach Trails, 232 Ariz. at 568, ¶ 21.

¶34 At the outset of the expedited hearing, Judge Coury disclosed
to the parties that he had “a relation” to a member of the Maricopa County
Board of Supervisors who was in his official capacity named in the
complaint. Avowing that he nonetheless could be “fair and impartial,”
Judge Coury asked whether “anyone request[ed] recusal,” and each
responding attorney affirmatively declined such invitation.

¶35 Two weeks after Judge Coury entered the “amended final
judgment,” supplementing the order enjoining Syms from appearing on the
ballot with an award of attorney fees and costs, Syms moved for a change
of judge for cause pursuant to A.R.S. § 12-409 and Rule 42.2. According to
Syms, Judge Coury had multiple conflicts that should have precluded him
from presiding over the nomination petition challenge: (1) his first cousin,
Steve Chucri, a member of the Maricopa County Board of Supervisors,

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endorsed McGee’s spouse for reelection; (2) his sister-in-law actively and
openly supported McGee’s spouse for reelection; (3) he was appointed by
Jan Brewer when McGee’s attorney, Joseph Kanefield, worked for the
Governor; and (4) he worked at the same law firm as McGee’s brother-in-
law before his appointment to the bench. In an affidavit accompanying the
motion, Syms’ attorney avowed that Judge Coury mocked and demeaned
counsel throughout the expedited hearing, demonstrating “actual bias and
prejudice.” In support of the motion for change of judge, Syms also
submitted affidavits from three former judges, each of whom concluded
that Judge Coury should have fully disclosed the alleged conflicts of
interest and recused himself.

¶36 After reviewing the relevant portions of the record, including
the submitted expert opinions, as well as a video recording of the expedited
hearing, Judge Mahoney denied Syms’ motion for change of judge, finding:
(1) Judge Coury properly disclosed that he was related to Steve Chucri, yet
no attorney requested recusal; (2) there is no rational basis for categorically
prohibiting a judge to preside “over a case in which one of the attorneys is
former counsel for the governor who appointed the judge”; (3) Syms’ claim
that Judge Coury may be biased in favor of McGee’s wife’s brother-in-law
was based “on nothing more than speculation” and there was no evidence
that Judge Coury and his former coworker had “any relationship”; (4)
Syms’ claims that Judge Coury may have bias toward McGee based on his
extended family’s political views was predicated on “sheer speculation”
that assumed Judge Coury knew his extended family’s political views and
either adopted them as his own or otherwise allowed them to influence his
judicial decision-making; and (5) Judge Coury exhibited professionalism
throughout the expedited hearing and his demeanor demonstrated neither
bias nor favoritism “toward any participant.” Based on her review of the
video recording of the hearing, Judge Mahoney found that Syms’ claims
that Judge Coury mocked counsel and made light of the matter “could not
be further from the truth.”

¶37 Although Syms acknowledges that Judge Mahoney expressly
reviewed and considered the experts’ opinions, he contends she failed to
assign appropriate weight to the opinion evidence. In other words, absent
any “contrasting or contradictory evidence,” Syms contends that Judge
Mahoney was compelled to adopt the experts’ opinions as her own.

¶38 While it is true that McGee did not submit controverting
expert opinions for consideration, Syms’ argument fails to account for
Judge Mahoney’s independent review of the record, including the video
recording of the hearing. Based on her review of that recording, Judge

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Mahoney found Syms’ allegations that Judge Coury behaved in a
condescending, unprofessional, and biased manner wholly without merit.
In her role as the fact-finder, Judge Mahoney was tasked with determining
the weight to give evidence, and we cannot say that she abused her
discretion by according greater weight to her own observations of the
expedited hearing than to the experts’ opinions. See Gutierrez v. Gutierrez,
193 Ariz. 343, 347, ¶ 13 (App. 1998).

¶39 Turning to Syms’ contention that Judge Coury should have
sua sponte recused himself, the record reflects that Judge Coury
immediately notified the parties that he was related to a member of the
Maricopa County Board of Supervisors, yet no one inquired about the
nature of the relationship or requested recusal. Although Syms alleges
Judge Coury had various other personal and professional relationships that
may have presented a conflict, his claims are based on speculation and the
record does not reflect that the judge had a personal bias requiring
disqualification. Therefore, given the lack of any evidence demonstrating
bias, the superior court did not improperly deny Syms’ motion for change
of judge or his motion for new trial predicated on the same claim.

CONCLUSION

¶40 For the foregoing reasons, we affirm. McGee requests an
award of his reasonable attorney fees and costs incurred on appeal
pursuant to A.R.S. § 12-349 and ARCAP 21. Because we do not find that
Syms brought this appeal without substantial justification, solely or
primarily for delay or harassment, or to unreasonably delay the
proceedings, we deny McGee’s request for an award of attorney fees. As
the prevailing party on appeal, however, we award McGee his costs
incurred on appeal, subject to compliance with ARCAP 21.

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

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