We the People Ex Rel. v. Governor Doug Ducey ( 2021 )


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  •                        SUPREME COURT OF ARIZONA
    WE THE PEOPLE OF THE STATE OF      )   Arizona Supreme Court
    ARIZONA ex rel., B.J.B., J.D.K.,   )   No. CV-21-0114-SA
    T.R.P., B.E.S., E.B.S.JR.,         )
    S.N.A., R.B.E., J.G.P., L.K.I.,    )
    R.J.C., F.M.I., S.S., M.M.S.,      )
    R.P.S., N.L.B., G.W., R.S.,        )
    C.H.C.II., E.P.R., D.B.S.,         )
    )
    Petitioners, )
    )
    v.                )
    )
    GOVERNOR DOUG DUCEY, SECRETARY     )
    OF STATE KATIE HOBBS, STATE        )
    TREASURER KIMBERLY YEE, MARICOPA )
    SHERIFF PAUL PENZONE, PIMA         )
    SHERIFF CHRIS NANOS, PHOENIX       )   FILED 05/11/2021
    MAYOR KATE GALLEGO, TUCSON MAYOR )
    REGINA ROMERO, MARICOPA RECORDER )
    STEPHEN RICHER, SUPERINTENDENT     )
    OF PUBLIC INSTRUCTION KATHY        )
    HOFFMAN, CORPORATIONS              )
    COMMISSIONER ANA TOVAR,            )
    CORPORATIONS COMMISSIONER LEA      )
    MARQUEZ PETERSON, CORPORATIONS     )
    COMMISSIONER SANDRA D. KENNEDY,    )
    CORPORATIONS COMMISSIONER JUSTIN )
    OLSON, DISTRICT 9 SENATOR          )
    VICTORIA STEELE, DISTRICT 10       )
    SENATOR KIRSTEN ENGLE, DISTRICT    )
    25 REPRESENTATIVE RUSSELL BOWERS, )
    DISTRICT 9 REPRESENTATIVE          )
    RANDALL FRIESE, DISTRICT 10        )
    REPRESENTATIVE DOMINGO DEGRAZIA, )
    DISTRICT 12 REPRESENTATIVE         )
    TRAVIS GRANTHAM                    )
    )
    Respondents. )
    __________________________________)
    O R D E R
    On May 7, 2021 Petitioners filed a Petition for Review Special
    Action in Writ of Quo Warranto, Affidavits of Identity & Intention,
    Arizona Supreme Court No. CV-21-0114-SA
    Page 2 of 5
    Evidence, and a Motion to Seal/Redact Petitioners Names and Personal
    Information.
    Petitioners       “We    the     People”     are    twenty       individuals       who
    bring a “special action in writ of quo warranto” under A.R.S. § 12-
    2043 against nineteen persons elected to hold municipal, county, and
    statewide   offices     in    2018,      2019     (Tucson),     and    2020.      Petitioners
    claim that the respondent office holders—“alleged usurpers”—are “in
    office    illegally”        and,    if     not,    the    respondents          should    “prove
    otherwise.”
    Petitioners      do    not    assert     that    they    have    asked    the     Attorney
    General   to   bring    the    action      under      A.R.S.   §     12-2041,    but     instead
    advise that they bring the action because—as one of the respondents—
    the Attorney General has a conflict of interest.                        Petitioners do not
    assert that they ran for the offices they challenge or are otherwise
    entitled to the office each seeks under A.R.S. § 12-2044, but instead
    offer that “[a]ny Arizona resident meeting the minimum qualifications
    is entitled to and has the right to be appointed to a seat in unusual
    situations”    in   place      of    the     respondents       and    that     “they     are   as
    entitled as anyone else to step in to help in a temporary way” if and
    when the Court enters a “judgment of usurpation.”                            Petitioners seek
    to   proceed   anonymously         and   ask    the    Court   to     seal    their     personal
    information including their names, addresses, dates of birth, and
    telephone numbers, advising they “will come forward more publicly as
    the filing is reviewed and if brought to hearing.”
    Arizona Supreme Court No. CV-21-0114-SA
    Page 3 of 5
    The Court, en banc, has considered the petition, the motion to
    seal, and the request “for a full review in 5 days.”
    A Statement of Contest is authorized under A.R.S. § 16-673 and
    must be brought within five days after completion of the canvass of
    the election and declaration of the result thereof by the secretary
    of state or by the governor.             A.R.S. § 16-673(A).        “[F]ailure of [an
    election       contestant]       to     strictly       comply     with . . . statutory
    requirements is fatal to his right to have [an] election contested.”
    Donaghey v. Att’y Gen., 
    120 Ariz. 93
    , 95 (1978).                   “The rationale for
    requiring strict compliance with the time provisions for initiating
    [an election] contest is the strong public policy favoring stability
    and   finality     of    election     results.”     
    Id.
         “Election         contests   are
    purely statutory and dependent upon statutory provisions for their
    conduct.”      Fish v. Redeker, 
    2 Ariz. App. 602
    , 605 (1966).                    Elections
    will not be held invalid for mere irregularities “unless it [can] be
    shown   that     the    result   has    been   affected     by    such    irregularity.”
    Territory v. Board of Sup’rs, 
    2 Ariz. 248
    , 253 (1887).                        The validity
    of an election is not voided by honest mistakes or omissions “unless
    they affect the result, or at least render it uncertain.”                       Findley v.
    Sorenson, 
    35 Ariz. 265
    , 269 (1929).                “Where an election is contested
    on the ground of illegal voting, the contestant has the burden of
    showing     that   sufficient       illegal    votes    were     cast    to    change    the
    result . . . .”         Morgan v. Board of Sup’rs, 
    67 Ariz. 133
    , 143 (1948).
    Petitioners argue that under the Help America Vote Act of 2002
    Arizona Supreme Court No. CV-21-0114-SA
    Page 4 of 5
    (“HAVA”), the challenged elections “were illegally held, per the HAVA
    law   and      corresponding      state       statute     [A.R.S.       §    16-442(B)],        and
    therefore null and void.”                They claim that their action under 
    52 U.S.C. § 21112
     “outlines” that their complaints be brought “at the
    state level and remedy is to begin there.”                       Petitioners also advise
    that they “are entitled and qualified to sit Pro-Tempore in usurpers
    seats.”
    Although our courts have recognized that electors may have an
    implied     private      right    of    action     to     challenge         voting        machines’
    compliance with applicable statutory requirements in certain limited
    circumstances, see, e.g., Chavez v. Brewer, 
    222 Ariz. 309
    , 318 ¶ 28
    (App. 2009), nothing in the statutes Petitioners cite grants them a
    private right of action to remove office holders and sit in their
    stead.      In fact, in a quo warranto action, “a claimant to an office
    may have judgment only on the strength of his own title and not upon
    any infirmity or weakness in the defendant’s title.”                          Tracy v. Dixon,
    
    119 Ariz. 165
    , 166 (1978).
    The Court finds no legal basis for the relief requested.                                  The
    action    as    articulated      is    also   untimely     under    A.R.S.       §    12-673(A).
    Therefore,
    IT IS ORDERED dismissing the petition.
    Petitioners        also     ask      that    they     be      allowed          to     proceed
    anonymously.        A    quo    warranto      proceeding    is    initiated       by       verified
    complaint,      A.R.S.    §§    12-2041,      12-2043    and   is   a       statutory       special
    Arizona Supreme Court No. CV-21-0114-SA
    Page 5 of 5
    action under Rule 1(b) of the Rules of Procedure for Special Actions.
    In seeking a writ from this Court, petitioners must provide their
    names, addresses and telephone numbers. Ariz. R. Spec. Act. Rules 1
    and Rule 7(e).
    Petitioners ask the Court to seal the information they submitted
    in their affidavits.     The Court’s Open Records Policy is set forth in
    Arizona Rule of the Supreme Court 123.          Rule 123(C) establishes what
    information    and   records    are   confidential.     Of   the   information
    Petitioners submitted, the Court sees no legal basis to seal the
    Petitioners’     information.     Petitioners    have   until   5:00   p.m.   on
    Monday, May 17, 2021 to file a pleading to support their request.
    Their affidavits will remain sealed pending further order.
    DATED this 11th day of May, 2021.
    /s/
    JOHN R. LOPEZ IV
    Duty Justice
    TO:
    Petitioners
    nm
    

Document Info

Docket Number: CV-21-0114-SA

Filed Date: 5/11/2021

Precedential Status: Precedential

Modified Date: 5/12/2021