Opinion
1 CA-CV 24-0442 A
10-29-2024
DAVID MAST, et al., Plaintiffs/Appellants, v. KRISTIN K. MAYES, et al., Defendants/Appellees.
Heath Law, PLLC, Scottsdale By Ryan L. Heath Counsel for Plaintiffs/Appellants Mast and Crosby Arizona Attorney General's Office, Phoenix By Kara Karlson, Karen J. Hartman-Tellez, Kyle R. Cummings Counsel for Defendant/Appellee Mayes Sherman & Howard, LLC, Phoenix By Craig A. Morgan, Shayna G. Stuart, Jake T. Rapp Counsel for Defendant/Appellee Fontes Snell & Wilmer, LLP, Phoenix By Brett W. Johnson, Eric H. Spencer, Colin P. Ahler, Ian R. Joyce Counsel for Defendants/Appellees Maricopa County
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2023-053465,CV2023-054988 The Honorable Susanna C. Pineda, Judge
Heath Law, PLLC, Scottsdale By Ryan L. Heath Counsel for Plaintiffs/Appellants Mast and Crosby
Arizona Attorney General's Office, Phoenix By Kara Karlson, Karen J. Hartman-Tellez, Kyle R. Cummings Counsel for Defendant/Appellee Mayes
Sherman & Howard, LLC, Phoenix By Craig A. Morgan, Shayna G. Stuart, Jake T. Rapp Counsel for Defendant/Appellee Fontes
Snell & Wilmer, LLP, Phoenix By Brett W. Johnson, Eric H. Spencer, Colin P. Ahler, Ian R. Joyce Counsel for Defendants/Appellees Maricopa County
Judge David D. Weinzweig delivered the decision of the Court, in which Acting Presiding Judge James B. Morse Jr. and Judge Jennifer M. Perkins joined .
MEMORANDUM DECISION
WEINZWEIG, JUDGE
¶1 David Mast, Tom Crosby and Abraham Hamadeh appeal the superior court's dismissal of their mandamus and quo warranto claims, along with all sanctions awarded against them. We affirm the dismissal of their claims but reverse the award of sanctions.
FACTS AND PROCEDURAL BACKGROUND
¶2 This appeal challenges the procedure used by Maricopa County to verify voter signatures on early ballots in the November 2022 general election. To verify those signatures, Maricopa County compared them to signatures on early ballots from past elections. Maricopa County informed the public about that procedure in its 2022 Elections Plan dated May 1, 2022-191 days before the general election ("2022 Elections Plan"). Maricopa Cnty. Elections Dep't, 2022 Elections Plan 45 (2022). The 2022 Elections Plan announced the County would compare mail-in ballot signatures to a "historical reference signature" which could include "inperson roster signatures and early voting affidavits from previous elections." Id.
¶3 The 2022 general election was held on November 8, 2022, and it included the race for Arizona Attorney General between Republican Abraham Hamadeh and Democrat Kristin Mayes. Hamadeh filed an election contest in Maricopa County Superior Court on November 22 ("First Lawsuit"), arguing, among other theories, that Maricopa County violated A.R.S. § 16-550(A) by matching signatures on early ballots to "a signature on an election-related document that was not the voter's 'registration record,' such as a prior early ballot affidavit or early ballot request form." The superior court dismissed the First Lawsuit because Maricopa County had yet to canvass the results.
¶4 The Maricopa County Board of Supervisors certified the canvass results for Maricopa County on November 28-twenty days after the election-and Mayes prevailed by 280 votes on the statewide count.
¶5 Hamadeh filed a second election contest in Mohave County Superior Court in December 2022 ("Second Lawsuit"), again arguing that Maricopa County matched signatures on early ballots to "a signature on an election-related document that was not the voter's 'registration record,' such as a prior early ballot affidavit or early ballot request form." The superior court dismissed Hamadeh's election contest as an untimely postelection challenge to a pre-election procedure.
¶6 Mast and Crosby, both Maricopa County voters ("Voters"), challenged Maricopa County's results in September 2023-nine months after the canvass. They too argued that Maricopa County violated A.R.S. § 16-550(A) with how it verified voter signatures on early ballots. Voters sought mandamus relief to invalidate all Maricopa County mail-in ballots from the 2022 general election and requested an order to recount the votes or conduct a new election.
¶7 Hamadeh filed a third lawsuit in December 2023 ("Third Lawsuit")-thirteen months after the canvass-naming Mayes, Adrian Fontes and various Maricopa County election officials as Defendants. He again argued that Maricopa County violated A.R.S. § 16-550(A) by comparing early ballot signatures to signatures "from prior mail-in ballot affidavits-which are not lawfully within the 'registration record.'" But this time, Hamadeh requested mandamus and quo warranto relief to set aside the election results and install him as the Arizona Attorney General.
¶8 Because Mast, Crosby and the Third Lawsuit raised the same arguments about the same election in the same court, the superior court consolidated them into this action. The court then dismissed the entire lawsuit under Arizona Rules of Civil Procedure 12(b)(1) and 12(b)(6).
¶9 Maricopa County, Mayes and Fontes requested attorney fees, which the court granted, ordering Mast, Crosby and Hamadeh to pay over $200,000 in attorney fees to the Defendants. Mast, Crosby and Hamadeh timely appealed. We have jurisdiction. See A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶10 We review de novo the dismissal of a complaint under Rule 12(b)(6), assuming the truth of all well-pled factual allegations and reasonable inferences. In re ABB Tr., 251 Ariz. 313, 317, ¶¶ 18-19 (App. 2021). Dismissal under Rule 12(b)(6) is appropriate only if a complaint fails to state a claim upon which relief can be granted. See Ariz. R. Civ. P. 12(b)(6).
¶11 We first address the superior court's dismissal of all claims and then turn to its award of sanctions against Mast, Crosby and Hamadeh.
I. Voters' Claims.
A. Standing.
¶12 Arizona law "broadly afford[s] standing" in mandamus actions to "members of the public to bring lawsuits to compel officials to perform their public duties." Ariz. Dep't of Water Res. v. McClennen, 238 Ariz. 371, 377, ¶ 32 (2015) (citation omitted). A party need only be "beneficially interested" to assert a writ of mandamus. See A.R.S. § 12-2021. We liberally interpret whether a party qualifies as "beneficially interested." Ariz. Pub. Integrity All. v. Fontes, 250 Ariz. 58, 62, ¶ 11 (2020).
¶13 Arizona law provides for early elections, and all registered Arizona voters may request an early ballot to vote by mail. A.R.S. §§ 16-541(A), -542. But early voters must sign an affidavit printed on the return envelope, and Arizona election officials must verify each signature before an early vote counts. A.R.S. §§ 16-547(A), (D), -550(A), -552(B). To verify each voter's signature, Arizona law directs election officials to "compare the signature on the envelope with the signature of the elector on the elector's registration record as prescribed by § 16-550.01." A.R.S. § 16-550(A).
In 2024, A.R.S. § 16-550.01(H) was enacted, which codified the signature verification procedures in the "2020 secretary of state signature verification guide." 2024 Ariz. Sess. Laws, ch. 1, § 7. The newly minted statute authorizes election officials to compare signatures on early ballots to signatures on previous mail-in ballot affidavits. A.R.S. § 16-550.01(H).
¶14 Voters possess a beneficial interest in this mandamus action because they sued to force Maricopa County to follow the law. In particular, Voters want Maricopa County to set aside and recount the election results, arguing a voter's "registration record" does not include signatures from prior mail-in ballots.
B. Untimeliness.
¶15 Although Voters have standing to bring this lawsuit, their claims are barred as untimely, whether styled as a post-election challenge to pre-election procedures or as an election contest. Post-Election Challenge to Pre-Election Procedures
¶16 Arizona law requires voters to challenge pre-election procedures before an election itself when voters knew or should have known about the procedure. Tilson v. Mofford, 153 Ariz. 468, 470 (1987).
¶17 Maricopa County released a 2022 Elections Plan in May 2022-six months before the November 2022 general election. In the 2022 Elections Plan, Maricopa County announced the procedure it would follow to verify early ballot signatures, revealing that early ballot signatures would be compared to a "historical reference signature that was previously verified and determined to be a valid signature for the voter," which could include "early voting affidavits from previous elections." See 2022 Elections Plan at 45.
¶18 Voters knew or should have known about this verification procedure before the election because Maricopa County disclosed all necessary information before the first ballot was cast. This belated challenge to a pre-election procedure is barred as untimely. See Tilson, 153 Ariz. at 471 ("[P]rocedural violations in the elective process itself must be reviewed by the court prior to the actual election.").
¶19 Even so, Voters refashion their lawsuit as a post-election challenge to the application of an election procedure. We disagree. Again, Voters knew or should have known about the contested verification procedure before the election. Afterall, Maricopa County disclosed all necessary information before the first ballot was cast. Indeed, Maricopa County used the procedure to count early ballots for weeks before election day.
Election Contest
¶20 Arizona law demands that election contests be filed within five days of canvass. A.R.S. § 16-673(A). We require "strict compliance" with this deadline to advance the "strong public policy favoring stability and finality of election results." Donaghey v. Att'y Gen., 120 Ariz. 93, 95 (1978).
¶21 Voters argue their lawsuit is not an election contest because it is styled as a mandamus action. We are not persuaded. Although dressed as a mandamus action, Voters's lawsuit represents an election contest because it seeks to toss the 2022 general election results, order a recount and conduct a new election. See A.R.S. § 16-676(B)-(C). And because their lawsuit was filed over nine months after the election, it was untimely and statutorily barred under A.R.S. § 16-673(A).
C. Mandamus.
¶22 Even if Voters's mandamus claims were timely, they fail as a matter of law. Mandamus is available only if there is "no other plain, speedy and adequate remedy at law." Donaghey, 120 Ariz. at 94-95. Voters had at least two other remedies here: (1) a proper pre-election challenge to the signature verification procedure, and (2) a timely election challenge within five days of canvass. They pursued neither, so mandamus relief is unavailable.
D. Declaratory Relief.
¶23 Voters also request a declaration that Maricopa County cannot use mail-in ballot affidavits for signature verification in future elections, but they did not request this relief in the superior court, so it is waived on appeal. McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5 (1997).
II. Hamadeh's Claims.
¶24 The superior court dismissed Hamadeh's claims because they were untimely, defective and precluded. We agree and affirm that Hamadeh's mandamus claim was untimely and his quo warranto claim was defective.
A. Mandamus Claim.
¶25 Just like the mandamus claim of Voters, Hamadeh's mandamus claim is barred because he had two other remedies to pursue, yet pursued neither. Donaghey, 120 Ariz. at 94-95.
B. Quo Warranto Claim.
¶26 Hamadeh also asserts an action for quo warranto, which is an extraordinary proceeding to remove and replace a sitting public official with their challenger. Tracy v. Dixon, 119 Ariz. 165, 166 (1978); A.R.S. § 12-2044(A); see also State ex rel. Woods v. Block, 189 Ariz. 269, 272 (1997). Hamadeh argues he should be installed as Arizona Attorney General because Mayes was elected with illegal votes.
¶27 Hamadeh's quo warranto claim fails, however, because it relies on weaknesses in Mayes's title and Hamadeh must show he is entitled to the office "only on the strength of his own title and not upon any infirmity or weakness in the defendant's title." Tracy, 119 Ariz. at 166; A.R.S. § 12-2044(A).
III. Sanctions.
¶28 Mast, Crosby and Hamadeh challenge the superior court's award of sanctions against them under A.R.S. § 12-349(A). We review de novo the superior court's interpretation and application of § 12-349, but defer to its findings of fact unless clearly erroneous. Ariz. Republican Party v. Richer, 257 Ariz. 210, 215, ¶ 10 (2024).
¶29 Arizona law directs courts to award attorney fees against parties who bring claims without substantial justification. A.R.S. § 12-349(A)(1). A claim is brought without substantial justification when it is both groundless and not made in good faith. A.R.S. § 12-349(F). "Groundless" is synonymous with "frivolous." Richer, 257 Ariz. at 216, ¶ 15. A claim is groundless "if the proponent can present no rational argument based upon the evidence or law in support of that claim." Id. (citation omitted). A claim is not groundless, by contrast, when "fairly debatable" or a "long shot." Id. ("[A] claim may lack winning merit without being sufficiently devoid of rational support to render it groundless."). A claim is made in bad faith when both (1) objectively groundless and (2) "the party or attorney knows or should know that it is groundless, or is indifferent to its groundlessness, but pursues it anyway." Id. at 221, ¶ 38.
A. Against Hamadeh.
¶30 The superior court sanctioned Hamadeh because his claims were untimely and barred by claim preclusion. We address each basis in turn. Timeliness
¶31 The superior court sanctioned Hamadeh because his mandamus and quo warranto claims were untimely. That was error for several reasons. First, it is "fairly debatable" whether the quo warranto action qualified as an election contest under section 16-673(A). See Jennings v. Woods, 194 Ariz. 314, 320, ¶ 21 (1999) ("Just as the quo warranto provisions cannot be allowed to render the elections statutes meaningless, so also must our interpretation ensure that the elections statutes do not render the quo warranto provisions meaningless.").
¶32 Second, it is "fairly debatable" whether Hamadeh's mandamus and quo warranto claims challenged an election procedure or the application of that procedure.
¶33 Third, it is "fairly debatable" whether the signature verification process after voting constitutes a "procedure[] leading up to an election." See Tilson, 153 Ariz. at 470. Indeed, the 2019 Elections Procedure Manual-which provides the procedural framework for elections in Arizona-does not include signature verification among its pre-election procedures. Ariz. Sec'y of State, 2019 Election Procedures Manual 121, 128 (2019) (including signature verification in the "Early Voting" chapter despite an entire chapter dedicated to "Pre-Election Procedures").
Claim Preclusion
¶34 The superior court also sanctioned Hamadeh because his claims were barred by claim preclusion. The court found Hamadeh's claims in the Second Lawsuit were identical to those raised in this lawsuit. That was error because whether preclusion applies is "fairly debatable."
¶35 We review de novo the application of claim preclusion, Hall v. Lalli, 191 Ariz. 104, 106 (App. 1997), which prevents a party from bringing a lawsuit based on a previously litigated claim, Lawrence T. v. Dep't of Child Safety, 246 Ariz. 260, 262, ¶ 8 (App. 2019). The doctrine of claim preclusion has three elements: (1) the identical claim must be raised in an earlier lawsuit, (2) in which the superior court entered final judgment on the merits, and (3) the parties in each lawsuit either share an "identity" or are in "privity." In re Gen. Adjudication of All Rts. to Use Water in Gila River Sys. &Source, 212 Ariz. 64, 69-70, ¶ 14 (2006).
¶36 Hamadeh concedes the second and third elements, but contends he raised different claims in the Second Lawsuit and here.
¶37 Arizona courts have described two tests to determine whether two claims are identical: the same evidence test and the transactional test. Compare Phoenix Newspapers, Inc. v. Dep't of Corr., 188 Ariz. 237, 240 (App. 1997) ("Arizona cases apply an antiquated same evidence test for defining the same cause of action.") (internal quotations omitted), with Crosby-Garbotz v. Fell, 246 Ariz. 54, 59, ¶ 19 (2019) (using the transactional test instead of the same evidence test to describe claim preclusion). Under the same evidence test, two claims are the same and claim preclusion applies "[i]f no additional evidence is needed to prevail in the second action than that needed in the first." Phoenix Newspapers, 188 Ariz. at 240. Under the transactional test, a second lawsuit is barred if it arises out of the same "transaction or occurrence that was the subject of the original action." Id. at 241 (internal quotations omitted).
¶38 Whether claim preclusion applies here is "fairly debatable." To be sure, Hamadeh argued in both lawsuits that signatures from early ballots in prior elections are not part of the "registration record," and thus should not have been used to verify voter signatures in the 2022 general election. But in the Second Lawsuit, his claims were directed at the 2019 Elections Procedure Manual, and here his claims are directed at the 2022 Elections Plan. What is more, the Second Lawsuit was styled as an election contest, but Hamadeh restyled the Third Lawsuit as one for mandamus and quo warranto. Id. ("[The same evidence test] permits the Newspapers- and any other plaintiff-to avoid preclusion merely by posturing the same claim as a new legal theory.").
¶39 Nor is this case like the Second Lawsuit, in which our Supreme Court affirmed sanctions in an election challenge under § 12-349(A). See Kentch v. Jantzen, No. CV-23-0205-SA, at 3 (Ariz. Aug. 23, 2023) (dec. order). There, sanctions were proper because the election challengers sought appellate relief without a final judgment and because the challengers lied to the court about that deficiency. Id. Here, no such deficiency or misrepresentation occurred. We reverse the award of sanctions against Hamadeh.
B. Against Voters.
¶40 Although the superior court sanctioned Voters, it never "set forth the specific reasons for" those sanctions, which is required under A.R.S. § 12-350. That was reversible error. See Miller v. Bd. of Supervisors, 175 Ariz. 296, 300 (1993).
C. Against Maricopa County, Mayes and Fontes.
¶41 Mast, Crosby and Hamadeh contend the superior court should have sanctioned Maricopa County, Mayes and Fontes. They offer no record citations for sanctionable conduct, however, so that argument is waived. See ARCAP 13(a)(7).
CONCLUSION
¶42 We affirm the superior court's dismissal of this lawsuit, but reverse its award of sanctions against Mast, Crosby and Hamadeh. We deny their request for judicial notice as moot.
¶43 Maricopa County, Mayes and Fontes request an award of attorney fees on appeal under A.R.S. § 12-349 and sanctions under ARCAP 25. We decline that request in our discretion. Finally, we decline to award costs under A.R.S. § 12-341 because there is no clear "successful party."