Matthew Wakely v. Todd Howard ( 2022 )

SUPREME COURT OF ARIZONA
MATTHEW WAKELY, ) Arizona Supreme Court
) No. CV-22-0110-AP/EL
Plaintiff/Appellee, )
) Maricopa County
v. ) Superior Court
) No. CV2022-004817
TODD HOWARD, et al., )
) FILED 5/9/2022
Defendants/Appellants. )
)
__________________________________)
DECISION ORDER
The Court, by a panel consisting of Chief Justice
Brutinel, Justice Lopez, Justice Beene, and Justice King, has
considered the parties’ briefs, the record, the trial court’s
minute entry order, and the relevant statutes and case law in
this expedited election matter.
In 2022, Appellant Todd Howard timely submitted
nomination petition signatures to appear on the Republican
primary ballot for the office of State Senator in Arizona
Legislative District 8.
On April 18, 2022, Appellee Matthew Wakely filed a
Verified Complaint for Special Action/Injunctive Relief
challenging the number of signatures submitted by Mr. Howard as
insufficient and disputing Mr. Howard’s eligibility to serve in
the Legislature under Ariz. Const. Art. IV, Part 2, Section 2
Arizona Supreme Court No. CV-22-0110-EL/AP
Page 2 of 6
(“No person shall be a member of the Legislature unless he...
shall have been a resident of Arizona at least three years and
of the county from which he is elected at least one year before
his election.”). On April 22, 2022 Mr. Wakely filed an
Application for Order to Show Cause and for Preliminary and
Permanent Injunctive Relief.
On April 22, 2022, Mr. Howard filed a Motion to Dismiss
the Verified Complaint for Special Action/Injunctive Relief and
Application for Order to Show Cause and for Preliminary and
Permanent Injunctive Relief.
On April 25, 2022, the Superior Court conducted an
evidentiary hearing on the Complaint for Special
Action/Injunctive Relief. After considering the evidence,
pleadings, and testimony and taking the matter under advisement,
the Superior Court entered its Findings of Fact, Conclusions of
Law and Order. It found that Mr. Howard needed a minimum of 449
valid signatures, and that he had successfully submitted 485
valid signatures.
However, it also found that Mr. Howard will not have been
a resident of Arizona for three consecutive years immediately
preceding the November 2022 Election because he was a resident
of Maryland as of October 2020 when he voted in that state in
the 2020 General Election. Therefore, Mr. Howard was ineligible
to serve in the Arizona Legislature under Ariz. Const. Art. IV,
Arizona Supreme Court No. CV-22-0110-EL/AP
Page 3 of 6
Part 2, Section 2. See Bearup v. Voss, 142 Ariz. 489 (App.
1984).
The Superior Court granted the requested injunctive
relief, enjoining the Arizona Secretary of State, Recorders and
Board of Supervisors of Maricopa County from printing the name
of Todd Howard on the ballot for the Republican nomination for
State Senate for Legislative District 8. Mr. Howard’s Motion to
Dismiss and request for taxable costs under A.R.S. § 12-1840
were denied. Mr. Howard appealed.
The Court has considered the briefs and authorities in
this appeal and agrees with the Superior Court that Mr. Howard
does not meet the residency requirement.
IT IS ORDERED affirming the trial court decision. The
trial court’s factual findings concerning Mr. Howard’s residency
are not clearly erroneous, nor are they disputed. The trial
court found that Mr. Howard was a registered voter in the State
of Maryland and voted in Maryland in the General Election in
October 2020 and therefore could not have been a resident of
Arizona as of that date. Viewed in the light most favorable to
upholding the court’s decision, the record supports those
findings, and we must accept them. Ariz. R. Civ. P. 52(a)(6).
Moreover, Mr. Howard’s brief acknowledges that, “[d]espite his
37 years of citizenship in Arizona Howard was a resident of
Maryland in 2020 through as recently as October 2021.”
Arizona Supreme Court No. CV-22-0110-EL/AP
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We have no basis for overturning the trial court’s ruling
unless it is legally incorrect, an issue we review de novo. See
City of Phoenix v. Glenayre Electronics, Inc., 242 Ariz. 139,
142 ¶ 9 (2017) (we review legal issues de novo).
Reviewing this legal issue of constitutional
interpretation de novo, the Court declines to revisit the
holding of Bearup v. Voss, supra, that Ariz. Const. Art. IV,
Part 2, Section 2 requires an Arizona legislator to have been a
resident of Arizona for three consecutive years immediately
prior to the election in question. Mr. Howard’s contentions are
the same as were addressed in Bearup, 142 Ariz. at 490-491. They
were rejected in a well-considered analysis as follows:
We find the Supreme Court's holding in Triano v.
Massion, 109 Ariz. 506, 513 P.2d 935 (1973), persuasive
and dispositive. In Triano, the appellant sought
election to the Tucson City Council. The City Charter
provided that a candidate for the office of councilman
must be a resident of Tucson “for not less than three
years immediately prior to becoming a candidate” and,
further on in the same paragraph, required that a
candidate must have resided in his ward “at least one
year prior” to becoming a candidate. The appellant
argued that, although he had not lived in the ward from
which he was seeking election for one year immediately
prior to becoming a candidate, he satisfied the
requirement because he had resided within the ward for
more than a year approximately seven years earlier. The
court held that the residency requirement withstood
constitutional muster, noting that the State has a
compelling interest in preventing frivolous and
fraudulent candidacy by persons who have no previous
exposure to the problems and desires of the electorate
of a representative district. The court concluded that
Triano's construction of the residency provision as
requiring only that a candidate be a resident of the
Arizona Supreme Court No. CV-22-0110-EL/AP
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ward for any one-year period prior to becoming a
candidate would constitute “an unreasonable and
constrained construction” of the charter provision. 109
Ariz. at 510, 513 P.2d at 939.
Bearup, 142 Ariz. at 491 (emphasis in original).
We find the above analysis even more compelling in this
case, where the three-year requirement of residency within the
State is found in the same provision as the one-year requirement
of residency within the county. Construction of the three-year
requirement of residency within the State as appellant urges
would necessitate a construction of the one-year requirement of
residency within the County as merely requiring residency within
the county for one year at any time in the past. This Court has
already rejected that construction as “unreasonable”, and we do
so here. Therefore, after consideration,
IT IS FURTHER ORDERED that the Arizona Secretary of State
and the Recorders and Board of Supervisors of Maricopa County
are enjoined from printing the name of Todd Howard on the ballot
for the Republican nomination for State Senate for Legislative
District 8 for the August 2022 primary election.
DATED this 9th day of May, 2022.
/s/
ROBERT BRUTINEL
Chief Justice
Arizona Supreme Court No. CV-22-0110-EL/AP
Page 6 of 6
TO:
Timothy A LaSota
Jonathan Simon
Joseph Eugene La Rue
Joshua David Rothenberg Bendor
Hon. Peter A Thompson
Hon. Jeff Fine
Alberto Rodriguez
Alicia Moffatt
Todd Howard
John S. Bullock
Amy B Chan
Noah Gabrielsen