Matthew Wakely v. Todd Howard

• Court: Arizona Supreme Court
• Decided: May 9, 2022
• Docket: CV-22-0110-AP/EL
• Status: Unknown

Opinion

SUPREME COURT OF ARIZONA

MATTHEW WAKELY, ) Arizona Supreme Court ) No. CV-22-0110-AP/EL Plaintiff/Appellee, ) ) Maricopa County v. ) Superior Court ) No. CV2022-004817 TODD HOWARD, et al., ) ) FILED 5/9/2022 Defendants/Appellants. ) ) __________________________________)

DECISION ORDER

The Court, by a panel consisting of Chief Justice

Brutinel, Justice Lopez, Justice Beene, and Justice King, has

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

minute entry order, and the relevant statutes and case law in

this expedited election matter.

In 2022, Appellant Todd Howard timely submitted

nomination petition signatures to appear on the Republican

primary ballot for the office of State Senator in Arizona

Legislative District 8.

On April 18, 2022, Appellee Matthew Wakely filed a

Verified Complaint for Special Action/Injunctive Relief

challenging the number of signatures submitted by Mr. Howard as

insufficient and disputing Mr. Howard’s eligibility to serve in

the Legislature under Ariz. Const. Art. IV, Part 2, Section 2 Arizona Supreme Court No. CV-22-0110-EL/AP Page 2 of 6

(“No person shall be a member of the Legislature unless he...

shall have been a resident of Arizona at least three years and

of the county from which he is elected at least one year before

his election.”). On April 22, 2022 Mr. Wakely filed an

Application for Order to Show Cause and for Preliminary and

Permanent Injunctive Relief.

On April 22, 2022, Mr. Howard filed a Motion to Dismiss

the Verified Complaint for Special Action/Injunctive Relief and

On April 25, 2022, the Superior Court conducted an

evidentiary hearing on the Complaint for Special

Action/Injunctive Relief. After considering the evidence,

pleadings, and testimony and taking the matter under advisement,

the Superior Court entered its Findings of Fact, Conclusions of

Law and Order. It found that Mr. Howard needed a minimum of 449

valid signatures, and that he had successfully submitted 485

valid signatures.

However, it also found that Mr. Howard will not have been

a resident of Arizona for three consecutive years immediately

preceding the November 2022 Election because he was a resident

of Maryland as of October 2020 when he voted in that state in

the 2020 General Election. Therefore, Mr. Howard was ineligible

to serve in the Arizona Legislature under Ariz. Const. Art. IV, Arizona Supreme Court No. CV-22-0110-EL/AP Page 3 of 6

Part 2, Section 2. See Bearup v. Voss, 142 Ariz. 489 (App.

1984).

The Superior Court granted the requested injunctive

relief, enjoining the Arizona Secretary of State, Recorders and

Board of Supervisors of Maricopa County from printing the name

of Todd Howard on the ballot for the Republican nomination for

State Senate for Legislative District 8. Mr. Howard’s Motion to

Dismiss and request for taxable costs under A.R.S. § 12-1840

were denied. Mr. Howard appealed.

The Court has considered the briefs and authorities in

this appeal and agrees with the Superior Court that Mr. Howard

does not meet the residency requirement.

IT IS ORDERED affirming the trial court decision. The

trial court’s factual findings concerning Mr. Howard’s residency

are not clearly erroneous, nor are they disputed. The trial

court found that Mr. Howard was a registered voter in the State

of Maryland and voted in Maryland in the General Election in

October 2020 and therefore could not have been a resident of

Arizona as of that date. Viewed in the light most favorable to

upholding the court’s decision, the record supports those

findings, and we must accept them. Ariz. R. Civ. P. 52(a)(6).

Moreover, Mr. Howard’s brief acknowledges that, “[d]espite his

37 years of citizenship in Arizona Howard was a resident of

Maryland in 2020 through as recently as October 2021.” Arizona Supreme Court No. CV-22-0110-EL/AP Page 4 of 6

We have no basis for overturning the trial court’s ruling

unless it is legally incorrect, an issue we review de novo. See

City of Phoenix v. Glenayre Electronics, Inc., 242 Ariz. 139,

142 ¶ 9 (2017) (we review legal issues de novo).

Reviewing this legal issue of constitutional

interpretation de novo, the Court declines to revisit the

holding of Bearup v. Voss, supra, that Ariz. Const. Art. IV,

Part 2, Section 2 requires an Arizona legislator to have been a

resident of Arizona for three consecutive years immediately

prior to the election in question. Mr. Howard’s contentions are

the same as were addressed in Bearup, 142 Ariz. at 490-491. They

were rejected in a well-considered analysis as follows:

We find the Supreme Court's holding in Triano v. Massion, 109 Ariz. 506, 513 P.2d 935 (1973), persuasive and dispositive. In Triano, the appellant sought election to the Tucson City Council. The City Charter provided that a candidate for the office of councilman must be a resident of Tucson “for not less than three years immediately prior to becoming a candidate” and, further on in the same paragraph, required that a candidate must have resided in his ward “at least one year prior” to becoming a candidate. The appellant argued that, although he had not lived in the ward from which he was seeking election for one year immediately prior to becoming a candidate, he satisfied the requirement because he had resided within the ward for more than a year approximately seven years earlier. The court held that the residency requirement withstood constitutional muster, noting that the State has a compelling interest in preventing frivolous and fraudulent candidacy by persons who have no previous exposure to the problems and desires of the electorate of a representative district. The court concluded that Triano's construction of the residency provision as requiring only that a candidate be a resident of the Arizona Supreme Court No. CV-22-0110-EL/AP Page 5 of 6

ward for any one-year period prior to becoming a candidate would constitute “an unreasonable and constrained construction” of the charter provision. 109 Ariz. at 510, 513 P.2d at 939. Bearup, 142 Ariz. at 491 (emphasis in original). We find the above analysis even more compelling in this

case, where the three-year requirement of residency within the

State is found in the same provision as the one-year requirement

of residency within the county. Construction of the three-year

requirement of residency within the State as appellant urges

would necessitate a construction of the one-year requirement of

residency within the County as merely requiring residency within

the county for one year at any time in the past. This Court has

already rejected that construction as “unreasonable”, and we do

so here. Therefore, after consideration,

IT IS FURTHER ORDERED that the Arizona Secretary of State

and the Recorders and Board of Supervisors of Maricopa County

are enjoined from printing the name of Todd Howard on the ballot

for the Republican nomination for State Senate for Legislative

District 8 for the August 2022 primary election.

DATED this 9th day of May, 2022.

/s/ ROBERT BRUTINEL Chief Justice Arizona Supreme Court No. CV-22-0110-EL/AP Page 6 of 6

TO:

Timothy A LaSota Jonathan Simon Joseph Eugene La Rue Joshua David Rothenberg Bendor Hon. Peter A Thompson Hon. Jeff Fine Alberto Rodriguez Alicia Moffatt Todd Howard John S. Bullock Amy B Chan Noah Gabrielsen