Rosa Maria Morales, an individual, Plaintiff/Appellee-Cross Appellant,
v.
Denise Archibald, in her capacity as the Clerk of the City of Phoenix, Defendant, Urban Phoenix Project PAC, a political committee, Real Party in Interest/Appellant/Cross-Appellee, Russell Bowers, in his official capacity as the Speaker of the Arizona House of Representatives; and Karen Fann, in her official capacity as President of the Arizona Senate, Intervenors/Appellees.
Appeal
from the Superior Court in Maricopa County The Honorable Rosa
Mroz, Judge No. CV2019-000793
Appeal
to the Court of Appeals, Division One 1 CA-CV 19-0150 EL
Kory
Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys
for Rosa Morales, House Speaker Russell Bowers and Senate
President Karen Fann
Roopali H. Desai, D. Andrew Gaona, Coppersmith Brockelman
PLC, Phoenix, Attorneys for Urban Phoenix Project PAC
CHIEF
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL and JUSTICES TIMMER, BOLICK,
GOULD, LOPEZ, and PELANDER (RETIRED) joined.
BALES,
CHIEF JUSTICE
¶1
We here explain our March 20, 2019 order affirming the trial
court's decision enjoining a recall election of Phoenix
City Councilman Michael Nowakowski. Urban Phoenix Project PAC
(the "Committee") failed to collect sufficient
valid signatures to trigger a recall because its signature
sheets were not attached to a time-and-date-marked copy of
its recall application, as required by statute.
I.
¶2
Nowakowski represents District 7 of the City of Phoenix.
Displeased with his conduct as a councilman, some electors
from District 7 sought to initiate a recall election. To that
end, the Committee filed an application for a recall petition
on August 29, 2018. After gathering signatures over the next
several months, the Committee in December submitted a recall
petition with 2, 361 signatures to the Phoenix City Clerk for
verification. The next month, the City Clerk certified that
the petition had sufficient signatures to be on the ballot
for the March 2019 city election.
¶3
Rosa Maria Morales, an elector of District 7, then filed this
action challenging the recall petition in superior court. She
raised three objections: (1) the Committee failed to attach
the "official text of the recall, which consists of the
date-and-time stamped copy of the petition serial number
application," to petition sheets in violation of A.R.S.
§§ 19-202.01(D) and -203(D); (2) "a copy of
the petition form" was not attached to the
Committee's petition application, in violation of §
19-202.01(B)-(C); and (3) the petition sheets did not include
language required by A.R.S. § 19-204(A).
¶4
The Committee moved to dismiss, arguing that Morales lacked a
statutory cause of action, as the sole statute authorizing an
elector's challenge to recall petitions is A.R.S. §
19-208.04, which only allows challenges to "the number
of signatures certified by the county recorder under the
provisions of § 19-208.02." (Pursuant to Phoenix
City Charter Chapter XVII, § 3, the Phoenix City Clerk
takes the place of the county recorder in the signature
verification process.) On the merits, the Committee argued
that it should be required only to substantially comply with
the statutory requirements for recalls; that §
19-201.01's requirement of strict compliance with
statutory requirements is unconstitutional; and that it had
substantially complied.
¶5
The trial court ruled that § 19-208.04 is the only
statute authorizing a private right of action in the recall
context. Under that section, a private party may challenge
the validity of signatures. Accordingly, the trial court
concluded that Morales was statutorily authorized to raise
her first objection. Because Morales's other two
objections were not based on signature verification, the
court held they were not cognizable and dismissed them.
¶6
On the merits of Morales's surviving objection, the trial
court determined that the Committee had failed to comply with
the statutory requirements. The court found that the
Committee failed to attach a "time-and-date-marked copy
of the [petition] application" to its petition sheets,
and thus the City Clerk should not have included any of the
sheets in certifying the number of signatures. §
19-203(D). Accordingly, the court ruled the recall was not
eligible to be placed on the ballot.
¶7
Although ultimately unnecessary to its decision, the trial
court also rejected the Committee's challenge to the
constitutionality of ยง 19-201.01, and, in the event the
court's jurisdictional rulings were not upheld on appeal,
ruled ...