PIMA COUNTY COMMITTEE OF THE ARIZONA LIBERTARIAN PARTY, INC., Cross-Claimant/Counter claimant/Appellant,
PIMA COUNTY, a political subdivision of the State of Arizona, by and through its Board of Supervisors and County Administrator, Cross- Defendant/Appellee; BETH FORD, in her official capacity as Pima County Treasurer, Counterdefendant/Appellee.
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20085016 The Honorable Kyle Bryson, Judge
Ellinwood & Francis, LLP, Tucson By Ralph Ellinwood And Risner & Graham, Tucson By William J. Risner Counsel for Counterclaimant /Appellant
Slosser Struse Fickbohm Marvel & Fletcher, PLC, Tucson By Ronna L. Fickbohm Counsel for Defendant/Appellee
Pima County Rusing Lopez & Lizardi, P.L.L.C., Tucson By Michael J. Rusing Counsel for Pima County Republican Central Committee
DeConcini McDonald Yetwin & Lacy, P.C., Tucson By John C. Richardson, Kristen B. Klotz Counsel for Appellee Beth Ford
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
¶1 Pima County Committee of the Arizona Libertarian Party, Inc. ("Libertarian Party") appeals the superior court's dismissal of its claim for failure to state a claim upon which relief can be granted. We affirm.
¶2 This is the second appeal arising from a challenge to a 2006 Pima County special election that resulted in the adoption of ballot measures concerning a Regional Transportation Authority plan and the imposition of taxes to fund the plan. Following the election, the Pima County Democratic Party sought to enjoin Pima County Treasurer Beth Ford from destroying ballots cast in the 2006 Pima County special election as she would ordinarily have been required to do six months after the election, in accordance with Arizona Revised Statutes ("A.R.S.") section 16-624(A). In 2008, after a recount and following a final order in the ballot preservation action, Ford filed a petition for declaratory relief, seeking guidance on whether she should continue to preserve the ballots. Ford's complaint named Pima County and several political parties, including the Libertarian Party, that were represented on the special election ballots. The Libertarian Party then filed a separate "Answer and Cross-Claim" against Ford and Pima County that alleged election tampering by Pima County. The Libertarian Party cross-claimed, requesting the continued preservation of the ballots from the 2006 special election, that the Libertarian Party receive access to the ballots "as part of the on-going investigation into the tampering with ballots, " and that the superior court issue an injunction "to prevent this unlawful conduct in future elections."
¶3 After Ford and Pima County moved to dismiss the cross- claim,  the court noted that "the cross-claim appears to be an election challenge" and that the claim did not comply with the statutory jurisdictional time limits for bringing an election challenge. The court stated that it could not otherwise "identify a cognizable legal claim, " and dismissed the cross-claim. The court later ordered that Ford proceed with destroying the 2006 special election ballots, but on stipulation of the parties, the court stayed its order pending the results of all claims on appeal.
¶4 The Libertarian Party appealed the dismissal, and a panel of this court from Division Two reversed the superior court. See Ford v. Pima Cnty. Comm. Of Ariz. Libertarian Party, Inc., 2 CA-CV 2010-0001, 2010 WL 4296642 (Ariz. App. Oct. 28, 2010) (mem. decision). That decision held that the superior court erred in labeling the Libertarian Party's cross-claim an election challenge because, presuming the Libertarian Party prevailed on its claim, granting injunctive relief would not set aside the result of the 2006 special election. Id. at *3, ¶ 10. The holding specifically declined to resolve whether the Libertarian Party's cross-claim actually stated a justiciable claim for injunctive relief. Id. at *5, ¶ 18.
¶5 Litigation continued after remand. The Libertarian Party disclosed that it sought "graphic scanning of all ballots cast and the provision of those images to the public [.]" Pima County cited to the Arizona Attorney General's Office's investigation and report confirming the results of the 2006 special election, and requested that the superior court dismiss the Libertarian ...