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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