Kristopher M Sippel v. Elliott E Fisher

• Court: Arizona Supreme Court
• Decided: February 9, 2005
• Status: Unpublished

Opinion

SUPREME COURT OF ARIZONA En Banc

KRISTOFER M. SIPPEL, ) Arizona Supreme Court ) No. CV-05-0004-AP/EL Plaintiff/Appellee, ) ) Pinal County v. ) Superior Court ) No. CV-200401483 ELLIOTT E. FISHER, ) ) Defendant/Appellant, ) MEMORANDUM DECISION ) and ) (Not for publication ) Ariz. R. Sup. Ct. 111) LAURA DEAN-LYTLE, LIONEL RUIZ, ) SANDIE SMITH, JIMMIE KERR, and ) KATHY CONNELLY, ) ) Defendants/Appellees. ) __________________________________)

Appeal from the Superior Court in Pinal County The Honorable Janna L. Vanderpool, Judge

AFFIRMED

Kristofer M. Sippel Apache Junction Plaintiff/Appellee, pro se

Elliott E. Fisher Apache Junction Defendant/Appellant, pro se

ROBERT CARTER OLSON, PINAL COUNTY ATTORNEY Florence by William H. McLean, Chief Civil Deputy County Attorney and Chris M. Roll, Deputy County Attorney Attorneys for Defendants/Appellees Dean-Lytle, Ruiz, Smith, and Kerr

RICHARD JOEL STERN, APACHE JUNCTION CITY ATTORNEY Apache Junction Attorneys for Defendant/Appellee Connelly B E R C H , Justice

¶1 This case involves a challenge by Kristofer M. Sippel to

the nomination petitions filed by Elliott E. Fisher for the

position of Mayor of the City of Apache Junction. Fisher contends

that the trial court erred in holding that several signatures on

his petitions were not valid, leaving him with insufficient

signatures to qualify for a place on the ballot. Fisher appealed

the superior court’s ruling on several grounds. Because of the

time constraints in this accelerated election appeal, we

previously issued an order affirming the judgment of the superior

court set forth in its signed Minute Entry. We stated that a

written decision would follow explaining this court’s ruling.

This is that decision.

FACTS AND PROCEDURAL HISTORY

¶2 On December 8, 2004, Fisher filed his nominating

petitions to run for the office of Mayor of Apache Junction. He

turned in eight petitions containing a total of 109 signatures.

To qualify for the ballot, Fisher needed a minimum of 101

signatures from qualified electors. Thus, Fisher submitted eight

signatures more than the minimum necessary to qualify for the

ballot.

¶3 On December 17, 2004, Sippel, an Apache Junction City

Council Member, challenged twenty-two signatures on Fisher’s

nominating petitions, pursuant to Arizona Revised Statutes

- 2 - (“A.R.S.”) § 16-351 (Supp. 2004). Sippel alleged that, without

these signatures, Fisher did not qualify as a candidate for the

primary race to be held on March 8, 2005. Sippel’s motion to

challenge Fisher’s nominating petitions included an affidavit from

fellow Apache Junction City Council Member David Waldron, which

listed the twenty-two allegedly invalid signatures.

¶4 Pinal County Superior Court Judge Janna L. Vanderpool

held a hearing on December 27, 2004, to address Sippel’s

allegations. Sippel and Fisher attended the hearing, as did Pinal

County Recorder Laura Dean-Lytle, and Apache Junction City Clerk

Kathy Connelly. Both Dean-Lytle and Connelly testified regarding

the election process and requirements for the city election.

Dean-Lytle further testified that, of the twenty-two signatures

Sippel challenged, only six were valid, leaving sixteen invalid

signatures. Fisher cross-examined Dean-Lytle and Connelly, but,

despite having received notice of the hearing, did not call any

qualified witnesses of his own.

¶5 The judge found that sixteen signers of Fisher’s

nominating petitions were not qualified voters in Apache Junction,

leaving Fisher with only ninety-three valid signatures. The judge

therefore concluded that Fisher failed to produce a sufficient

- 3 - number of valid signatures to qualify for the primary ballot.1

Fisher filed a timely appeal.

DISCUSSION

A. Standard of Review

¶6 Actions challenging signatures on a nominating petition

pursuant to A.R.S. § 16-351 are much like motions for injunctive

relief. See Mandraes v. Hungerford, 127 Ariz. 585, 587, 623 P.2d

15, 17 (1981). This court reviews a trial court’s decision to

grant or deny a motion for injunctive relief for abuse of

discretion, Valley Med. Specialists v. Farber, 194 Ariz. 363, 366,

¶ 9, 982 P.2d 1277, 1280 (1999), reviews its factual findings for

clear error, id., and reviews its legal conclusions de novo, Open

Primary Elections Now v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d

649, 652 (1998).

B. Sufficiency of the Evidence

¶7 The primary issue in this case is whether Fisher’s

nominating petitions contained a sufficient number of valid

signatures to qualify Fisher to run for mayor in the city’s March

2005 primary election. Fisher claims that Sippel failed to prove

by clear and convincing evidence that sixteen of the challenged

signatures were invalid. See Blaine v. McSpadden, 111 Ariz. 147,

149, 526 P.2d 390, 392 (1974) (requiring clear and convincing

1 In future election cases, the trial judge’s minute entry should clearly reflect that findings were made upon clear and convincing evidence.

- 4 - evidence). Fisher argues that the evidence was insufficient

because Waldron’s notarized affidavit was not an official

document,2 and because the affidavit erroneously stated that

twenty-two signatures were invalid, when in fact only sixteen were

invalid.

¶8 Sippel’s case did not rely solely on Waldron’s

affidavit, however. In addition, Sippel presented the

uncontroverted testimony of Pinal County Recorder Dean-Lytle,

which clearly established that sixteen of Fisher’s signatures were

from individuals who could not vote in the city’s mayoral contest.

Fisher failed to rebut that evidence. Thus the trial judge did

not clearly err in finding that clear and convincing evidence

demonstrated that Fisher’s petition lacked sufficient valid

signatures.

¶9 Fisher did not present any witnesses or provide other

evidence to rebut Sippel’s evidence that those sixteen signatures

were invalid. On appeal, Fisher argues that the judge erred in

not allowing him to call any witnesses. The record shows,

however, that Fisher neither subpoenaed any witnesses for the

scheduled hearing nor made an offer of proof establishing that the

witnesses he wished to call would provide any relevant testimony.

Moreover, regarding the persons whose signatures were challenged,

2 See infra § C, Pleadings Requirements (discussing the sufficiency of Sippel’s motion).

- 5 - the judge concluded that even if they testified as to their good-

faith belief that they were qualified voters in Apache Junction,

such evidence would not effectively rebut the evidence that they

were not qualified, because the statute defines a registered voter

as one whose name appears on the county voter registration list.

A.R.S. § 16-161 (1996); see A.R.S. § 16-351(E) (Supp. 2004)

(stating that the county voter register “shall constitute the

official record to be used to determine” whether a signer is a

qualified elector). For that reason, and because December 27th

was the scheduled hearing date, the judge denied Fisher’s request

to postpone the hearing so that he could subpoena those sixteen

individuals.

¶10 At the hearing, Fisher also sought to call William

O’Neil, the presiding judge of Pinal County Superior Court, to

testify about a 1997 election case involving Fisher, over which

Judge O’Neil presided. Judge Vanderpool correctly concluded that

the testimony regarding an eight-year-old case involving a

different election cycle would shed no light on whether the

challenged signatures on Fisher’s nominating petitions for the

2005 election were valid.

¶11 Thus, Judge Vanderpool did not abuse her discretion in

denying Fisher’s request to call these witnesses. The judge

appropriately weighed the evidence presented at the hearing and

found that Sippel had proven by clear and convincing evidence that

- 6 - Fisher did not have sufficient signatures on his nominating

petitions to qualify for the primary ballot.

C. Pleadings Requirements

¶12 Fisher also argues that Sippel’s motion challenging

Fisher’s nominating petitions failed to meet the statutory

requirements of A.R.S. § 16-351(A). He claims that Waldron’s

affidavit provided an insufficient basis to challenge his

nominating petitions under A.R.S. § 16-351 and that Sippel failed

to attach an official voter registration document from the county

recorder.

¶13 Section 16-351(A) sets forth the requirements for

challenging a candidate’s nominating petitions. It requires a

challenger to “specify in the action the petition number, line

number and basis for the challenge for each signature being

challenged.” Id. The affidavit submitted with Sippel’s motion

carefully spells out Fisher’s petition number, the line number,

the signer’s name, and the basis for each of Sippel’s challenges.

The statute does not require the challenger to attach certified

documents from the county recorder regarding the invalidity of the

challenged signatures, as Fisher argues Sippel should have done,

or cite the statutory basis for the challenge. Thus the trial

judge did not err in ruling that Sippel’s motion satisfied the

statutory requirements.

- 7 - D. Statements of the Deputy County Attorney

¶14 Fisher further alleges that Judge Vanderpool abused her

discretion by allowing the Deputy Pinal County Attorney to argue

on behalf of Sippel. Fisher complains that during the December

27th hearing, the judge twice allowed Deputy County Attorney

William McLean “to speak for the Appellee Sippel.” In the first

instance, McLean objected to Fisher’s cross-examination of Pinal

County Recorder Dean-Lytle on the ground that Fisher was badgering

the witness. The record shows that on that occasion McLean was

not speaking on behalf of Sippel, but rather was attempting to

protect his client from aggressive questioning. In the second

instance, McLean addressed the court regarding the issue at hand.

He stated that he was not “argu[ing] either for Mr. Sippel or for

Mr. Fisher.” Because the county is a named party to the action,

it was appropriate for McLean to represent the county and make

arguments on behalf of his client. Judge Vanderpool did not abuse

her discretion in allowing him to speak.

E. Denial of Fisher’s Motion to Dismiss

¶15 Fisher next complains that the trial judge erred in

denying his motion to dismiss Sippel’s action. But Fisher’s

motion to dismiss provides no legal basis for dismissing Sippel’s

action. Fisher’s motion asserts that Sippel was “impetuous” in

filing his petition, that Sippel failed to cite the statute under

which he brought his action, that he improperly took four days to

- 8 - file his challenge, and that he made spelling mistakes in his

motion. Fisher failed to develop any legal argument justifying

dismissal of Sippel’s action, and thus the judge acted within her

discretion in denying his motion.3

¶16 Arizona is a notice pleading state. See Ariz. R. Civ.

P. 8(a). Arizona courts do not dismiss actions for misspellings

or for failure to cite statutes if citation is not required by

law. Section 16-351(A), the statute underlying this action, does

not require citation. As long as actions are timely filed and

state a claim, they will not be dismissed for having been filed

impetuously. Thus, because Sippel filed his action within the

period allowed by law, stated a claim, and met statutory

requirements, the court did not err in denying Fisher’s motion to

dismiss.

F. Judge Vanderpool’s Impartiality

¶17 Fisher alleges that the trial judge violated Arizona

Supreme Court Rule 81, the Arizona Code of Judicial Conduct,

because she was not impartial in this proceeding. To the

contrary, the record shows that Judge Vanderpool was judicious and

patient with Fisher, who appeared pro se. She explained

procedures and rules of evidence to him, protecting his due

3 Fisher did not file an answer to Sippel’s motion. His motion to dismiss, however, does not properly fit into any of the Rule 12(b) categories. See Ariz. R. Civ. P. 12(b). For this reason as well, the trial judge acted appropriately in dismissing Fisher’s motion.

- 9 - process rights, and occasionally allowing him to speak out of

turn. Indeed, the record shows that the trial judge attempted to

ensure that Fisher received a fair hearing. Thus, Fisher has not

met his burden of establishing a violation of Rule 81.

G. Irreparable Harm

¶18 Fisher claims that Sippel “cannot show irreparable

harm.” The statute, however, does not require a showing of

irreparable harm for a challenge to a nominating petition. See

A.R.S. § 16-351. The judge, therefore, did not err in not

requiring such a showing.

H. Laches

¶19 Fisher claims that Sippel’s motion should be barred by

the doctrine of laches because Sippel waited four days after

Fisher filed his nominating petitions before challenging the

signatures on them. A challenge may be filed up to ten days after

the final day for filing petitions has passed. A.R.S. § 16-

351(A). Sippel therefore acted in accordance with the statute and

did not unnecessarily or prejudicially delay in filing his

challenge. The trial judge did not abuse her discretion in

finding that the action was not barred by laches.

CONCLUSION

¶20 We affirm the ruling of the trial court that Sippel has

proved by clear and convincing evidence that Fisher’s nominating

petitions did not contain a sufficient number of valid signatures

- 10 - to qualify Fisher for the Apache Junction mayoral primary race to

be held on March 8, 2005. We also affirm the trial court’s ruling

denying Fisher’s motion to dismiss. The judgment of the trial

court is affirmed.

_______________________________ Rebecca White Berch, Justice

CONCURRING:

______________________________________ Charles E. Jones, Chief Justice

______________________________________ Ruth V. McGregor, Vice Chief Justice

______________________________________ Michael D. Ryan, Justice

______________________________________ Andrew D. Hurwitz, Justice

- 11 -