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Morales v. Archibald

Supreme Court of Arizona

April 25, 2019

Rosa Maria Morales, an individual, Plaintiff/Appellee-Cross Appellant,
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.


         ¶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.


         ¶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 ...

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