McComb v. Superior Court

943 P.2d 878, 189 Ariz. 518

• Court: Court of Appeals of Arizona
• Decided: July 25, 1997
• Docket: 1 CA-SA 97-0139
• Status: Published

Opinions

OPINION

LANKFORD, Judge.

The Court accepted jurisdiction in this special action by order on June 10, 1997, with a decision to follow. This is that decision.

The superior court invalidated Arizona Revised Statutes Annotated (“A.R.S.”) section 15-431 in its entirety, removed the newly seated members of the board of the Dysart Unified School District (“the district”), and continued the prior incumbents’ terms pending a November 1997 special election. We grant partial relief from the trial court’s ruling.

The facts, stated briefly, are as follows. In June 1996, the district’s board voted to change from an at-large voting system to a single member, or “ward,” voting system pursuant to A.R.S. section 15-431.¹ In November 1996, the board held an election utilizing the ward system to fill three vacant seats. Two other seats were not vacant.

Following the election, electors in the school district — the real parties in interest here — challenged the validity of the ward system and of the election. The trial court initially ruled that one part of the statute, section 15-431(B)(3), was unconstitutional, but that this did not justify invalidating the election. After plaintiffs moved for reconsideration, arguing that the statute is unconstitutional in its entirety, the court agreed and invalidated both the statute and the November 1996 election. The court also reseated the prior incumbents and ordered that the district hold a special election in November 1997 using the at-large election system.

Defendants raise the following issues in their petition for special action:

1) Did the trial court err in ruling that the plaintiffs have standing to bring this cause of action?

2) Did the trial court err in holding section 15-481 unconstitutional?

3) Did the trial court abuse its discretion in declining to dismiss based on laches?

4) Did the trial court abuse its discretion in unseating the newly seated board members and continuing the terms of the incumbents?

The parties agree that we have, and should exercise, our special action jurisdiction. Jurisdiction is appropriate because this case involves the constitutionality of a statute of statewide importance. See State Compensation Fund v. Symington, 174 Ariz. 188, 191-92, 848 P.2d 273, 276-77 (1993).

I.

We first address whether plaintiffs lacked standing to sue the district. Defendants argue that because plaintiffs reside in a district that can choose between alternative election systems, they are benefitted rather than injured by the statute and thus have no standing to challenge it.

The constitutional minimum for standing requires that the plaintiff has suffered an invasion of a legally protected right which is concrete, particularized, actual and imminent; there must be a causal connection between the injury and the conduct complained of, and it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,112 S.Ct. 2130, 2136-37,119 L.Ed.2d 351 (1992). As electors who reside in a district in which voting has been structured based on racial discrimination, plaintiffs meet these criteria.

The dissent contends that plaintiffs did not sufficiently allege “injury in fact” to challenge the entire statute.² Plaintiffs did allege that they were electors in the district and the applicable case law indicates that this is enough. E.g., United States v. Hays, 515 U.S. 737, 745, 115 S.Ct. 2431, 2436, 132 L.Ed.2d 635 (1995) (“Where a plaintiff resides in a racially gerrymandered district, ... the plaintiff has been denied equal treatment because of the legislature’s reliance on racial criteria, and therefore has standing to challenge the legislature’s action.”) (quoted in Bush v. Vera, 517 U.S. 952,-, 116 S.Ct. 1941,1951,135 L.Ed.2d 248 (1996)).

While the plaintiffs may not have pled their injury in detail, the injury was apparent from the complaint and other pleadings.³ Although this is not a ease in which district boundary lines were redrawn, it does involve the division of a single district into multiple districts. The result is a clear “injury in fact” sufficient for standing. See Hays, 515 U.S. at 743, 115 S.Ct. at 2435. The plaintiffs can no longer vote for all five board members; they can vote for only one. The plaintiffs cannot vote in all board elections; they now may vote only in the elections involving their own single member district. This is ample injury to show standing. See Smith v. Boyle, 959 F.Supp. 982, 985 (C.D.Ill.1997) (residing in a district using at-large voting conferred standing). The plaintiffs’ injury is obvious, and accordingly they have standing to sue.

Finally, the dissent maintains that plaintiffs were uninjured because they resided in a district that merely had the “option” of switching to a ward system. We disagree. Plaintiffs are injured by the ward system voting itself. The single member district system is no longer an option; it is reality. As described above, that voting method clearly affects their voting rights. Plaintiffs are injured and have standing to complain of that injury.

II.

We next consider whether A.R.S. section 15-431 is unconstitutional in its entirety. First, defendants assert that plaintiffs waived this argument because they first raised it in their motion for reconsideration.

We find no waiver. The complaint framed a broad challenge to the validity of section 15-431 in its entirety.⁴ In paragraph twenty of their complaint, plaintiffs claimed as follows:

20. Plaintiffs are entitled to declaratory relief that (a) the recent elections were violative of Arizona law and void, (b) that A.R.S. § 15-431 contravenes the Arizona Constitution and applicable federal law and is therefore void, and (c) that the boundaries of the District’s wards are invalid.

Elsewhere in their complaint, the plaintiffs also alleged that “some citizens ... were denied any opportunity to vote because of their race[ ]----” In addition, although the motion for summary judgment focused on one provision of the statute, the trial court had the discretion to consider the validity of the whole statute on reconsideration.⁵ See Unif. R. Sup.Ct. P. 4(h). We find no reason — and the dissent produces no reason — to hold that trial judges lack the discretion to reconsider their own rulings.

Second, defendants maintain that the trial court erred in ruling that section 15-431 is unconstitutional. After reviewing the statute, we too find it unconstitutional. Section 15-431 is explicitly race-based, mandating strict scrutiny review. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227-29, 115 S.Ct. 2097, 2113,132 L.Ed.2d 158 (1995). In order to satisfy such strict review, the proponent of the statute must show that it is narrowly tailored to further a compelling state interest. Id. The statute fails to survive strict scrutiny.

No compelling interest that justifies the racial discrimination of section 15-431 was shown. Defendants claim that compliance with sections 2 and 5 of the Voting Rights Act mandated the enactment of the statute. Compliance with section 5 is not a sufficiently compelling interest. Miller v. Johnson, 515 U.S. 900, 919-23, 115 S.Ct. 2475, 2490-91, 132 L.Ed.2d 762 (1995). Furthermore, compliance with section 2 may be a compelling interest only where the State seeks to remedy “identified discrimination” and where the State has “a strong basis in evidence” that remedial action was necessary. Bush, 517 U.S. at---, 116 S.Ct. at 1962-63.

The record contains no evidence of historic racial discrimination. Our review of the legislative history reveals that the legislature enacted this statute in response to past litigation — i.e., mere claims of discrimination — involving two other school districts. A lawyer for plaintiffs suing one of the school districts testified before the legislature that the need for this statute was supported by the fact that an all anglo board governed a district with a fifty-five percent minority population. However, this is not the required “strong evidence.” First, these are the assertions of an advocate, unsupported by any documentation or witnesses. Second, the legislative record fails to show any concurrence by the legislature in these assertions. Third, even if the assertions were true, they would not establish racial discrimination. Cf. Rogers v. Lodge, 458 U.S. 613, 624-27, 102 , 73 L.Ed.2d 1012 (1982) (petitioner provided extensive and detailed information on minorities’ historical participation in the political process as well as statistics concerning the socioeconomic status of minorities in the county); Parnell v. Rapides Parish Sch. Bd., 425 F.Supp. 399, 405 (W.D.La.1976), modified, 563 F.2d 180 (5th Cir.1977) (“The constitutional insufficiency ... is not demonstrated solely by showing that the cognizable minority has not been able to elect officials in ... mathematical proportion to its voting potential.”) It is important to acknowledge that it might have been possible to provide such evidence when the statute was enacted, and it might be possible to produce it today. Until that is done, however, a race based statute cannot stand.

We are left with the State’s interest in avoiding litigation. Avoidance of litigation is not a compelling interest. Accordingly, there is no proof that the statute serves a compelling interest. It cannot satisfy strict scrutiny and is unconstitutional.

Section 15-431 is also unconstitutional because it is not narrowly tailored. Even if discriminatory voting practices in some districts justified enactment of the statute, section 15-431 contains no mechanism limiting it to such circumstances. Instead, section 15-431 can be applied more broadly than situations involving identifiable racial discrimination. Thus, even if there were some historical racial discrimination in Arizona school board voting, Dysart has no history of discrimination. Its implementation of a statute enacted to protect minority voting rights indicates that section 15-431 was not narrowly tailored to meet the specific interest for which it was enacted. Cf. Bush, 517 U.S. at-, 116 S.Ct. at 1963 (“A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.”) (quoting Shaw v. Reno, 509 U.S. 630, 655, 113 S.Ct. 2816, 2831, 125 L.Ed.2d 511 (1993)). Because the statute is not narrowly tailored to serve a compelling interest, it is unconstitutional.

Finally, even if only subsection (B)(3) is unconstitutional as defendants argue, the statute must fall because that subsection is not severable. Generally, an entire statute need not be declared unconstitutional if the unconstitutional portions can be severed. E.g., Symington, 174 Ariz. at 195, 848 P.2d at 280. However, an entire statute is invalid “where the constitutional and unconstitutional provisions are so connected and interdependent in subject matter, meaning and purpose as to ... justify the conclusion that the legislature intended them as a whole and would not have enacted a part only.” Id. (quoting Millett v. Frohmiller, 66 Ariz. 339, 343,188 P.2d 457, 460 (1948)).

Section 15-431 is ineffectual without subsection (B)(3). Without that part of the statute, there is no means to determine which of the single member district seats will take office. Because the board members’ terms are staggered, see A.R.S. section 15-427(B), some method of selection is essential. The single member system simply cannot be implemented without a provision indicating how the staggered at-large seats will be filled. Thus, section 15-431 is not severable, and the entire statute is invalid even if only subsection (B)(3) is unconstitutional.⁶

III.

We next consider whether laches mandated the dismissal of plaintiffs’ claims. Detention C of the statute, which the dissent cites, simply does not apply: It applies only to implementation of unspecified alternatives to ward voting. For us to assert the power to specify an alternative method of implementation for ward voting would transform this Court into a legislative body. Because there is no nondiscriminatory alternative to subsection B, the whole statute depends on that provision for implementation and, accordingly, the entire statute must fall. dants contend that plaintiffs intentionally delayed the bringing of this suit, thereby causing actual prejudice to defendants and requiring dismissal.

A finding of laches is within the sound discretion of the trial court. E.g., McFadden v. Wilder, 6 Ariz.App. 60, 64, 429 P.2d 694, 698 (1967).⁷ Absent erroneous interpretation of the law or clearly erroneous factual underpinnings, “the [trial court’s] determination can be overturned only if [its] decision represents an unreasonable judgment in weighing relevant factors.” E.g., A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020,1039 (Fed.Cir.1992). The trial court did not abuse its discretion in declining to apply laches.

In order to bar a claim on the basis of laches, a court must find more than mere delay in the assertion of the claim. “The delay must be unreasonable under the circumstances, including the party’s knowledge of his or her right, and it must be shown that any change in the circumstances caused by the delay has resulted in prejudice to the other party sufficient to justify denial of relief.” Mathieu v. Mahoney, 174 Ariz. 456, 459, 851 P.2d 81, 84 (1993) (holding challenge to initiative barred by laches because plaintiffs waited one year to take any action).

The trial court’s finding that plaintiffs’ delay was not unreasonable is supported by the record. Plaintiffs admittedly did not file their claim until after the election. However, the trial court acted within its discretion in deciding that plaintiffs acted reasonably under the circumstances. The Second Restatement of Torts, in defining “reasonable delay,” recognizes that plaintiffs are “entitled to take time for an investigation,” and “protests, complaints and negotiations looking toward a settlement of the controversy, go far to explain the reasonableness of the delay.” Restatement (Second) of Torts § 939 cmt. b (1977); see also Toney v. White, 488 F.2d 310, 315 (5th Cir.1973) (en banc) (no laches unless defendant can “show by clear and convincing proof that there was in fact a deliberate bypass of a pre-election judicial remedy”).

The facts relevant to the laches issue are these. The district voted to change to a ward system in June 1996. Plaintiffs immediately requested documents from the district and objected in the United States Justice Department Voting Rights Act approval process. When the Justice Department approved the district’s change on August 16, 1996, plaintiffs solicited an opinion from the Arizona Attorney General. Plaintiffs continued their non-judicial challenges to the board’s decision until they filed their complaint on November 25, 1996, just 20 days after the election.

The proper remedy prior to the election would have been an injunction. See Bearup v. Voss, 142 Ariz. 489, 490, 690 P.2d 790, 791 (App.1984). In order to obtain this remedy, however, plaintiffs would have had to file suit before the ballots were printed. See Hunt v. Superior Court, 64 Ariz. 325, 329, 170 P.2d 293, 295-96 (1946). Absentee ballots must be prepared and delivered to the officer in charge of the election not later than the thirtieth day preceding the Saturday before the election. A.R.S. § 16-545. Therefore, the ballots must be printed prior to the commencement of absentee voting, and plaintiffs would have had to file their suit and obtain injunctive relief prior to printing, at or before the beginning of October. It hardly seems unreasonable for plaintiffs not to have attempted this very difficult if not impossible task. Based on these circumstances, the trial court could decide that plaintiffs had an “adequate explanation” for the delay, that their delay was not unreasonable, and that laches should not bar their claim. See Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176,1180 (9th Cir.1988).

The dissent maintains that plaintiffs should have filed suit before the election. As a practical matter, however, there was very little time in which to do so. Moreover, the trial judge was entitled to consider more than the single fact of when the lawsuit was filed. The judge could consider all of plaintiffs’ activities, including their efforts outside litigation, to resolve the conflict. Laches does not require, as the very first course of action, that the plaintiff file a lawsuit.

The dissent seeks support in Barthelmes v. Morris, 342 F.Supp. 153 (D.Md.1972), which held that seeking relief through legislative channels did not excuse plaintiffs’ delay in filing a lawsuit. However, to the extent that Barthelmes stands for the proposition that plaintiffs’ efforts outside litigation cannot be considered, that case contradicts the Restatement, which accepts “protests, complaints and negotiations” as indications of reasonable delay. Restatement (Second) of Torts § 939 cmt. c (1977). We follow the Restatement in the absence of any Arizona law to the contrary. E.g., Aztlan Lodge No. 1, Free and Accepted Masons of Prescott v. Ruffner, 155 Ariz. 163,165, 745 P.2d 611, 613 (App.1987). Because the Restatement addresses what constitutes “reasonable delay,” and Arizona courts have been silent on this issue, we follow it and not Barthelmes. Plaintiffs’ actions — protesting to the Department of Justice and requesting an opinion from the Attorney General — support the trial judge’s determination not to apply laches.

Nor is Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367 (1987) persuasive. In Tilson, our supreme court addressed the legality of a proposed initiative and held that “the procedures leading up to an election cannot be questioned after the people have voted[]____” Id. at 470, 737 P.2d at 1369 (citing Kerby v. Griffin, 48 Ariz. 434, 444-46, 62 P.2d 1131, 1135-36 (1936)). The court defined the procedures, or “electoral process,” as “the manner in which an election is held,” and stated that its authority to intervene before an election is limited to situations in which “an initiative petition is defective in form or does not bear the number of signatures of qualified electors required by [the constitution], or where the prescribed procedure has not been followed.” Id. (quotation omitted). The court concluded that it had the authority to review violations in the election process before the election, but could not review violations in the substance of an initiative until it was adopted and later challenged. Id. at 471, 737 P.2d at 1370.

In both Tilson and Kerby, actions for in-junctive relief were filed before the election. Thus, any statement about post-election remedies is necessarily dictum. Moreover, both cases are distinguishable because they involved “the manner in which an election is held”: in Kerby, the failure to circulate publicity pamphlets and in Tilson, an alleged defect in the pamphlets and a violation of the single subject rule. See Ariz. Const, art. 21, § 1.

Here, plaintiffs do not challenge election procedures; they challenge the constitutional validity of A.R.S. section 13-431. Tilson does not preclude substantive review of an election statute after the election has been held.

Nor does Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177 (4th Cir.1983), bar relief. “Hendon does not set forth a per se rule; rather, courts must determine each such election case against the general rule established in Hendon that a candidate or other election participants should not be allowed to ambush an adversary or subvert the election process by intentionally delaying a request for remedial action to see first whether they will be successful at the polls.” United States v. City of Cambridge, Maryland, 799 F.2d 137, 141 (4th Cir.1986).

IV.

Defendants’ final contention is that the trial court improperly removed the newly seated board members and continued the terms of the incumbents pending a new election. Petitioners do not contest that the election, if unconstitutional, should have been voided and the court should have ordered a new election. Petitioners only argue that the remedy that the court fashioned for the interim was the wrong remedy.

The fashioning of a remedy is an exercise of equitable power within the trial court’s discretion. Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463,1469, 36 L.Ed.2d 151 (1973). Our review is correspondingly narrow and is limited to abuse of this discretion. Id.; Kenneth W. Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U. L. Rev. 1092,1100 (1974).

The court had only two choices: 1) Keep the unlawfully elected board members in office and affirm the validity of their actions, or 2) continue the former members in office and disqualify the unlawful board members. Courts have adopted both approaches. In Ury v. Santee, 303 F.Supp. 119, 126-27 (N.D.Ill.1969), the court continued the terms of the incumbent officers until the special election. See also Hamer v. Campbell, 358 F.2d 215, 222 (5th Cir.1966) (invalidating election because it should have been previously enjoined); Coalition for Educ. in Dist. One v. Board of Elections of the City of New York, 370 F.Supp. 42, 56-58 (S.D.N.Y.) (voiding discriminatory election and ordering new election upon finding that equities warranted remedy and plaintiffs acted diligently in asserting their rights), aff'd, 495 F.2d 1090 (2d Cir.1974). However, other courts have provided only prospective relief to plaintiffs bringing post-election challenges. See Hendon, 710 F.2d at 182; Toney, 488 F.2d at 315-16. Trial courts generally have the discretion to select either remedy.

In this case, however, the Arizona Constitution instructed the judge which approach to adopt. The Arizona Constitution directed the continuation of the board membership in the following provision:

Section 13. The term of office of every officer to be elected or appointed under this Constitution or the laws of Arizona shall extend until his successor shall be elected and shall qualify.

Ariz. Const, art. 22, § 13. In McCall v. Cull, 51 Ariz. 237, 242, 75 P.2d 696, 698-99 (1938), our supreme court held that an incumbent’s tenure of office continues until his successor qualifies, although his term has expired.

The newly seated Dysart board members were elected under an unconstitutional system, and were therefore not validly “elected.” Until their successors are validly elected, the incumbents may continue to occupy the school board offices. Cf. Op. Att’y Gen. No. 185-073 (1985) (outgoing local governing board members are to remain in office after their terms expire and until their newly elected successors have qualified by subscribing to oath of office). The trial court merely applied the constitutional provision, extending the terms of the incumbents until the special election. There is no abuse of discretion in following the mandatory constitutional provision.

Even if the constitution were not mandatory, the trial court did not abuse its discretion. It is difficult to see how it is a greater evil to continue the incumbents’ terms than to bestow governmental authority upon unlawfully elected officers. Such a remedy is no less democratic and no more disruptive than affirming the authority of the unlawfully elected officials.⁸ Therefore, the trial court did not abuse its discretion in continuing the incumbents in office.

V.

In sum, Judge Kleinschmidt and I agree that plaintiffs have standing and that A.R.S. section 15-431 is unconstitutional in its entirety. Judges Kleinschmidt and Fidel agree that, because of laches, the remedy should be limited to ordering a future election. Accordingly, we order that relief be granted in part: the part of the trial court’s order invalidating the election and continuing the terms of the former board members is vacated.

1 . Section 15-431, enacted in 1990, provides in relevant part:

A. If, for the prior school year, a school district had an average daily membership of at least one thousand and the total minority enrollment in the district, as reported to the department of education, was at least twenty-five per cent of the total enrollment of the district, the governing board may vote to implement an alternative election system for the election of governing board members____

B. If the governing board of a school district has implemented a single member district election system as provided in subsection A of this section, the system shall be implemented as follows:

3. A number shall be assigned to each of the new single member districts in ascending order according to the percentage of the district’s minority population in each single member district.

4. As the terms of the governing board members who were elected at large expire, the members shall be replaced by members who are elected from the single member districts in ascending order of single member district number.

2 . The dissent acknowledges that two plaintiffs had standing to challenge subsection B because they could not vote in the last election. However, even the remaining plaintiff suffers injury because she is disenfranchised in future elections. That injury is no less concrete because it is prospective.

3 . Not only is the injury apparent, but plaintiffs alleged, as the dissent acknowledges (although only with regard to subsection B), that an inability to vote in some elections constituted an injury. Plaintiffs claimed that the voting system “dilute[d]” their votes and used race as a basis for determining "who will vote and when.” Even the school district understood that plaintiffs were complaining that they were "disenfranchised,” as shown by the affidavit of school official Jesus de la Garza.

4 . Arizona is a notice pleading state. E.g., Rosenberg v. Rosenberg, 123 Ariz. 589, 592-93, 601 P.2d 589, 592-93 (1979). Courts do not require extensive fact pleading. Id. Plaintiffs’ broad claim that A.R.S. section 15-431 is unconstitutional encompasses the contention that the entire statute is unconstitutional.

5 . Contrary to the dissent’s suggestion, we find nothing which misled or prevented defendants from offering evidence. Defendants had the opportunity to contest plaintiffs' motion for reconsideration — which raised the constitutional invalidity of the entire statute and specifically pointed out the absence of any justification for racial discrimination — by written response and at the hearing held on the motion.

6 . The dissent concludes that section 15-431(B) is severable because subsection A contemplates switching to systems other than ward systems, and methods of implementation other than the one set forth in subsection B could have been adopted. However, the fact that other methods of implementation could have been adopted means nothing. We do not know what these other systems are. The statute suggests none. The legislative history provides for none. We cannot invent an alternative measure. Subsec-

7 . Courts may provide relief in whole or in part upon a finding of laches. E.g., Restatement (Second) of Torts § 939 cmt. c (1977); A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1039-40 (Fed.Cir.1992).

8 . One of the incumbents has died. The trial court correctly ruled that the vacancy can and should be filled in accordance with applicable Arizona law.