Mathieu v. Mahoney , 174 Ariz. 456 ( 1993 )

OPINION

CORCORAN, Justice.

This case comes on direct appeal from an order granting plaintiffs’ request for a permanent injunction enjoining the Secretary of State from printing as Proposition 110 the “Preborn Child Protection Amendment” on the November 3, 1992 general election ballot. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 19-122(C).

Because we conclude that plaintiffs’ claim is barred by the doctrine of laches, we do not reach the merits of the controversy, nor do we reach the defendant’s due process objections. See Mandraes v. Hun-gerford, 127 Ariz. 585, 587-588, 623 P.2d 15, 17-18 (1981). We entered an order on September 22, 1992, with Feldman, C.J., dissenting, that lifted the injunction previously entered by the trial court and reversed the trial court’s judgment. That order indicated that an opinion would follow. This is that opinion.

Factual and Procedural History

The parties are plaintiff Deborah Math-ieu and plaintiff Arizona League of Women Voters, Inc. (League). The defendants are Arizonans for Common Sense (Arizonans) and Secretary of State (Secretary). Proposition 110, known as the “abortion amendment,” sought to prohibit abortions with some exceptions and to prohibit state expenditures for abortions. The proposed Proposition read in part:

Section 1. No public funds shall be used to pay for an abortion, except when that procedure is necessary to save the life of the mother.

Section 2. No preborn child shall be knowingly deprived of life at any stage of biological development by any person except to save the life of the mother. However, the Legislature shall provide for exceptions only in those circumstances where pregnancy results from an act of either reported sexual assault or reported incest.

The text of Proposition 110 became public on August 7, 1991 when Arizonans submitted the initiative text and an application to the Secretary to place Proposition 110 on the November 1992 state general election ballot.¹ Almost a year later, on July 2, 1992, Arizonans filed an initiative petition and supporting signature sheets with the Secretary. The Secretary issued a temporary receipt to Arizonans on July 7, 1992, pursuant to A.R.S. § 19-121.01, acknowledging that Arizonans had submitted 255,188 signatures in support of the initiative. Arizonans needed 166,227 valid signatures to qualify Proposition 110 for the 1992 general election ballot. See A.R.S. § 19-121.04(A) & (B). On August 12, 1992, the Secretary certified 181,889 signatures, insuring that Proposition 110 would be on the November ballot absent a successful challenge.

The Secretary issued a publicity pamphlet in advance of the general election to inform voters of the upcoming propositions, pursuant to A.R.S. § 19-123(A). Sufficient pamphlets were printed before the primary (which occurred on September 8, 1992) to distribute to 80% of the registered voters at primary election polling places. See A.R.S. § 19-123(B). The pamphlet contained arguments for and against each proposition that were submitted by interested individuals and organizations. On July 10, 1992, the League submitted an argument, which was included in the publicity pamphlet, urging voters to vote “no” on Proposition 110.

Over 2 months later, on September 15, 1992, plaintiffs filed a complaint and an application for permanent injunction. Plaintiffs argued that Proposition 110 violated the single subject provision, Ariz. Const. art. 21, § 1, by containing language in the same initiative that both restricted the use of public funds for abortion and prohibited abortions with some exceptions.²

Defendants responded on September 17, 1992. They contended that plaintiffs waited too long to challenge the proposition, and that even if the court reached the merits, it should deny the injunction and dismiss the complaint.

A trial on the merits was held in superior court on the day the response was filed, 2 days after the complaint was filed and only one day after service of the complaint. The League presented an expert whom it had obtained on September 13, 1992 to testify. Over defendants’ objections as to timeliness, the expert testified based on a survey concerning the likelihood that different groups of voters would support or oppose different portions of the proposition. Defendants could not controvert this testimony because they had not had time to secure their own expert or to conduct a survey. They did, however, object to the presentation of any evidence. Defendants objected concerning the short time frame for the proceedings when plaintiffs offered the expert’s survey report into evidence:

MR. MAYNARD: Your Honor, I do have some objections. I obviously just received [the survey report], and I’m just now looking at it. I don’t object to what [the expert] did. I do object to any polling information from other sources. I haven’t figured out exactly how they’re going to be used or what they are. They seem to be back here, and I haven’t gotten to it yet.

THE COURT: All right. Any objection to the Exhibit 1 ... with the deletion of the last two pages, is that what you will object to?

MR. MAYNARD: Well, it’s pages, a portion of page three, all of page four and page five, your Honor.

And, to make it perfectly clear, I object to the whole proceeding going forward with evidence, your Honor____

THE COURT: All right. Mr. Maynard, other than the fact that the evidence is being presented, you believe, too late in the game, other than that what specifically are you objecting to?

Defendants also complained about the lack of time to prepare for cross-examination:

MR. CAREY: Your honor, because of the stage of the [absentee] ballot production process we’re in because there really can be no relief as to printing, the State has no question for the witness.

But I would like to state for the record that I did not find out what the testimony of the witness was going to be until I heard it. I just received her affidavit today, and consequently I’m really not prepared to cross-examine the witness ____

The trial court was concerned about the condensed time frame. In considering whether or not to recess for lunch, the court stated:

I’d like to complete this as quickly as possible. I believe I should make a decision so that if there’s any appellate review it should be put in the hands of the Supreme Court today, if possible. I’m sure everyone wants that decision, ultimate decision determined today or tomorrow, prior to printing of the ballots.

The trial court, troubled by defendants’ due process and laches objections, disregarded plaintiffs’ expert but ruled in plaintiffs’ favor as a matter of law. The minute entry states:

Defendants’ assertion of the lack of due process and laches on the part of the plaintiffs, and particularly the prejudice they have suffered by reason of the presentation of evidence for which they had no opportunity to meet and counter strikes a cord with the court. The court permitted the plaintiffs to present their evidence____ However, the court has not considered this evidence in its decision.

The court, applying “logic and law,” found that Proposition 110 violated the single subject provision, and on September 18, 1992, entered an order granting plaintiffs’ request for an injunction. The trial court denied Arizonans’ motion to stay the injunction pending appeal.

On the same day, Arizonans filed a notice of appeal. Oral argument was set before this court on September 22, 1992, and an order was entered on the same day reversing the trial court’s judgment. Plaintiffs filed a motion for reconsideration on September 24 and concurrently filed a motion to expedite the response date because absentee ballots were to be printed imminently. The motion to expedite was granted. Defendants filed responses on September 25,1992. On the same day, this court denied plaintiffs’ motion for reconsideration.³

Discussion

The defense of laches is available in an action challenging the legal sufficiency of a proposed initiative measure and seeking to enjoin the measure’s printing on the official ballot. A.R.S. § 19-122(C); Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 (1991). As we stated in Kromko, “[a]n action to enjoin placing an initiative or referendum proposal on the ballot is equitable in nature, and therefore may be subject to equitable defenses such as laches.” 168 Ariz. at 57, 811 P.2d at 18. Our concern with timeliness stems in part from the notion that “disputes concerning election and petition matters must be initiated and heard in time to prepare the ballots for absentee voting to avoid rendering an action moot.” Kromko, 168 Ariz. at 57, 811 P.2d at 18. In Kromko, the court found the challenge to be timely when brought more than a month and a half before absentee voting began. 168 Ariz. at 57, 811 P.2d at 18.

We have articulated the most recent lach-es test as follows:

We emphasize that laches may not be imputed to a party for mere delay in the assertion of a claim. Rather, 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.

Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992).

At least one other jurisdiction has applied the doctrine of laches to invalidate a challenge to an initiative petition. State ex rel. Fidanque v. Paulus, 297 Or. 711, 688 P.2d 1303 (1984). In Fidanque, the plaintiffs petitioned the Oregon Supreme Court for a writ of mandamus alleging breach of duty by the Secretary of State in certifying a proposed initiative petition in violation of the Oregon constitution’s single subject provision. Fidanque, 688 P.2d at 1304. The court found the challenge to be untimely because it was brought over 10 months after the alleged breach would have occurred. 688 P.2d at 1307-08. The court stated:

Besides being prejudicial to the defendant and the petition circulators, such delay puts an unreasonable burden on the court. The matter could have been litigated in the circuit court with ample time for narrowing and clarification of issues through the normal judicial process. Rather than follow such a procedure, Plaintiff-Relators have waited until the eleventh hour to bring their present challenge. To wait until the last moment places the court in a position of having to steamroll through the delicate legal issues in order to meet the deadline for measures to be placed on the ballot.

688 P.2d at 1308 (footnote omitted).

Such is the case here. Plaintiffs’ delay in filing this suit occurred more than a year after the League knew of Arizonans’ statewide efforts to circulate petitions and submit them for certification. Arizonans had been securing signatures on a statewide basis for over a year before the League actually filed suit. The League knew of Arizonans’ campaign since August 1991 when the text was made public. The League took action against the proposed initiative on July 10, 1992, when it submitted its publicity pamphlet argument. At a minimum, the League could have filed its complaint when the Secretary certified the signatures on August 12, 1992, at which juncture the Proposition was certain to be placed on the ballot. Instead, it waited until September 15, 1992 to file its complaint, only days before the absentee ballots were to be printed for statewide absentee voting beginning October 1.

We find this delay both unreasonable and prejudicial because it strains the quality of decision making and is ultimately unfair to all involved. It prejudiced defendants in the preparation of their defense. Less than 24 hours passed from the time the complaint was served until the time the matter was litigated on the merits in the trial court. In 24 hours, defendants had to retain counsel; marshal their witnesses, facts and legal arguments; analyze the challenge; research and brief the issues; and prepare for a trial on the merits to defend against undisclosed evidentiary materials presented by plaintiffs. Defendants did not have the opportunity to develop and present their own evidence, hire an expert, or prepare their cross-examination. Defendants should have had this opportunity even if plaintiffs did not present evidence, and even though, as happened, the trial judge did not consider the evidence that plaintiffs did submit. The record shows that Arizonans’ attorney resourcefully struggled to piece together an adequate cross-examination of the expert, but not without obvious difficulty. Even though the trial court discounted plaintiffs’ expert testimony, the abbreviated time frame jeopardized defendants’ ability to present any effective defense. By contrast, the League had more than a month to prepare its case.

The same problem infected the appellate process. After the trial court’s ruling, defendants were equally rushed. They needed to evaluate the trial court’s order and serve plaintiffs with an appellate brief within a 24-hour time frame.

Plaintiffs seek to excuse this last-minute filing because they had difficulty finding replacement counsel when the original pro bono counsel withdrew. This court has held that “[m]ere financial inability to prosecute a suit is not an excuse for an unreasonable delay.” Price v. Sunfield, 57 Ariz. 142, 149, 112 P.2d 210, 213 (1941).

We cannot agree with the dissent’s conclusion that prejudice here was nonexistent. It may well be that lawyers are often required to respond on short notice, as the Chief Justice suggests. New will honestly claim, however, that they did their best work or anything even close to it under such circumstances, especially when their opposition enjoyed the unmatched luxury of months to prepare.

Regardless of how one might feel about the wisdom of Proposition 110, the process was unfair. More importantly, however, this “rush to judgment” was quite unnecessary. No persuasive explanation has been offered for delaying the initiation of this action until a few days before the deadline for ballot printing. The delay is unreasonable on its face.

We wish to emphasize that the decision in this case is not about “hardship on the lawyers” or “judicial inconvenience,” as the Chief Justice suggests. Rather, it is in part about simple fairness, nothing more nor less. It concerns fairness to those who invested countless hours and substantial funds for almost a year in order to get Proposition 110 on the ballot for a public vote; fairness to the quarter of a million citizens who signed the initiative petitions, as well as those who labored to collect the signatures; and fairness to a judicial process that earns public respect and support by producing careful, well-reasoned decisions after a complete exposition of the issues. Simple fairness is the real basis for applying the equitable doctrine of laches here and in most other circumstances.

The ultimate prejudice in election cases is to the quality of decision making in questions of great public importance. In ordinary private litigation, the laches defense requires a court to focus on the prejudice to the parties. But public litigation, such as election contests and challenges to ballot propositions, implicates interests well beyond the parties to the case. Litigants and lawyers involved in such litigation must be keenly aware of the need to bring such cases with all deliberate speed or else the quality of judicial decision making is seriously compromised.

The doctrine of laches prevents a party from asking this court to decide a difficult question of Arizona constitutional law on the eve of ballot printing when such a question could have been presented much earlier. Courts should not be forced to make hasty legal decisions in such important areas simply because the parties bringing such cases had difficulty, as here, in finding lawyers. Special interest groups and the lawyers who represent them are aware of the difficult time pressures involved in ballot litigation. They have an affirmative duty to bring their challenges as early as practicable. When a laches defense is raised in an election contest, a court must assess whether the plaintiffs have delayed unreasonably or failed to act diligently with that affirmative duty in mind.

In short, the time within which difficult and delicate constitutional decisions must be made should not be collapsed into so brief a period unless necessary. It was not necessary here.

Although we realize that last-minute challenges are inevitable, we do not wish to encourage them by allowing plaintiffs in this case to escape the application of the doctrine of laches. Last-minute election challenges, which could have been avoided, prejudice not only defendants but the entire system. They deprive judges of the ability to fairly and reasonably process and consider the issues. They unreasonably telescope the process and rush appellate review, leaving little time for reflection and wise decision making.

We have an obligation, especially regarding matters of public interest such as elections, to provide a forum for resolving disputes in a fair and accurate manner. Such a forum was not possible here solely because of plaintiffs’ delay. Plaintiffs’ claim is therefore barred by the doctrine of lach-es.

The judgment is reversed.

MOELLER, V.C.J., and ZLAKET and MARTONE, JJ., concur.

1 . We take judicial notice of the records of the Secretary of State. Bolin v. Superior Court, 85 Ariz. 131, 333 P.2d 295 (1958).

2 . Ariz. Const. art. 21, § 1 reads, in part:

If more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.

3 . The voters ultimately defeated Proposition 110. Unofficial election results show 68.5% (941,844) voted "no” and 31.5% (432,813) voted "yes."