petersen/burk v. purcell/covey ( 2010 )

SUPREME COURT OF ARIZONA
IN DIVISION
DAVID CLYDE PETERSEN and STACI ) Arizona Supreme Court
BURK, ) No. CV-10-0278-AP/EL
)
Plaintiffs/Appellees, ) Maricopa County
) Superior Court
v. ) No. CV2010-023871
)
HELEN PURCELL, Maricopa County )
Recorder, DON COVEY, )
Superintendent of Schools for ) MEMORANDUM DECISION
Maricopa County, MEMBERS OF THE ) (Not for publication -
MARICOPA COUNTY BOARD OF ) Ariz. R. Sup. Ct. 111)
SUPERVISORS, ADELAIDA SEVERSON, )
an Individual, )
)
Defendants/Appellants. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
AFFIRM
________________________________________________________________
LAW OFFICES OF ANDREW C. PACHECO, P.L.C. Phoenix
By Andrew C. Pacheco
and
THE LAW OFFICE OF JOANN FALGOUT, P.L.C. Tempe
By JoAnn Falgout
Attorneys for David Clyde Petersen and Staci Burke
MARICOPA COUNTY OFFICE OF GENERAL LITIGATION SERVICES Phoenix
By M. Colleen Connor, Assistant General Counsel
Karen J. Hartman-Tellez, Assistant
General Counsel
Attorneys for Helen Purcell, Don Covey, and
Maricopa County Board of Supervisors
FIDELIS V. GARCIA Tempe
By Fidelis V. Garcia
Attorney for Adelaida Severson
________________________________________________________________
B E R C H, Chief Justice
¶1 Adelaida Severson appealed the judgment of the Maricopa
County Superior Court enjoining the Maricopa County Board of
Supervisors from certifying Severson as a candidate for the
Governing Board of Gilbert Unified School District #41. We
affirmed that judgment on September 9, 2010, and now explain the
basis for our decision.
¶2 Severson first argued that the trial court erred by
allowing the joinder of Staci Burk as a plaintiff. Severson
eventually agreed to Burk’s joinder so long as it did not expand
the issues in the case, and the court granted the motion on that
condition. We find no abuse of discretion in the trial court’s
ruling. See State ex rel. Napolitano v. Brown & Williamson
Tobacco Corp., 196 Ariz. 382, 384 ¶ 5, 998 P.2d 1055, 1057
(2000) (reviewing intervention claim for abuse of discretion).
¶3 Severson next argued that the trial court erred by
denying her motion for a judgment as a matter of law (JMOL)
after David Petersen failed to prove his status as an elector
during his case-in-chief. Only an “elector” may challenge the
nomination of a candidate. See Ariz. Rev. Stat. (“A.R.S.”)
§ 16-351(A) (2006); see also A.R.S. § 16-121 (2006) (defining
“elector”).
¶4 The purpose of a motion for JMOL is to “give[] the
court and the nonmoving party notice of any deficiencies in the
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nonmoving party’s case at a time when such deficiencies can
still be corrected.” Teneyck v. Omni Shoreham Hotel, 365 F.3d
1139, 1149 (D.C. Cir. 2004). See generally Edwards v. Young,
107 Ariz. 283, 284, 486 P.2d 181, 182 (1971) (noting that
Arizona courts “give great weight to the federal interpretations
of the rules”) (citations omitted). After the trial court
denied Severson’s motion, Petersen testified in his rebuttal
that he was an elector. The trial court did not err in
permitting Petersen to cure any defect in his case by presenting
evidence of his status as an elector. See Platt v. Bagg, 77
Ariz. 214, 217, 269 P.2d 715, 716-17 (1954) (finding no abuse of
discretion in permitting a party who has rested to reopen his
case to cure an evidentiary deficiency).
¶5 Severson next argued that the trial court erred by
“advising” Petersen and Burk to reopen their case to prove their
status as electors. The transcript does not show that this is
what occurred. Rather, the trial court explained that it denied
Severson’s motion for a JMOL because the challengers could
reopen their case to present any missing proof. The trial court
had “broad discretion” regarding whether the challengers could
present more evidence on this matter. Id. at 217, 269 P.2d at
717. In fact, Petersen and Burk did not reopen their case to
prove their status as electors, but instead presented proof of
that status during rebuttal.
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¶6 Finally, Severson argued that the trial court erred by
denying her motion to dismiss the case because Petersen’s
complaint failed to name individual members of the Board of
Supervisors as defendants. The law requires that the Board of
Supervisors be named as a defendant in election contests.
A.R.S. § 16-351(C)(3); Mandraes v. Hungerford, 127 Ariz. 585,
587, 623 P.2d 15, 17 (1981). But even assuming that the statute
requires that individual supervisors be named as defendants, the
Board (and not the candidate) was the proper party to challenge
the complaint on this ground. In this case, the Board of
Supervisors had notice and appeared at the hearing and did not
object. In any event, after the hearing, Petersen joined the
individual supervisors as parties.
¶7 For the foregoing reasons, we affirm the judgment of
the trial court.
_______________________________________
REBECCA WHITE BERCH, Chief Justice
CONCUR:
_____________________________________
ANDREW D. HURWITZ, Vice Chief Justice
_____________________________________
A. JOHN PELANDER, Justice
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