Parker v. City of Tucson – 11/19/2013
Arizona Court of Appeals Division Two Holds That Petition Circulators Convicted of a Felony are Not Eligible Unless Their Civil Rights Have Been Restored, That Several Circulators Were Ineligible Under Arizona Revised Statute § 19-114, and Therefore The Signatures Gathered by the Circulators Were Invalid.
The Committee for Sustainable Retirement in Support of Initiative Petition 2013-I004 (the “Committee”) prepared an initiative to amend the Tucson City Charter to eliminate the City’s non-public safety employee pension system (the “Initiative”). Several Tucson employees (the “Employees”) challenged the validity of the signatures gathered by several circulators hired by the Commission that were used to place the Initiative on the ballot. The Employees claimed that six of the circulators had prior felony convictions and were therefore ineligible to register to vote and that three were not registered as out-of-state petition circulators. Based on this information, the Employees claimed that the signatures obtained by these petition circulators were invalid under A.R.S. § 19-114. The Court overruled the trial court and thereby invalidated enough signatures to justify entering an injunction against putting the Initiative on the ballot.
The Court of Appeals first examined the eligibility of convicted felons to circulate petitions. The Court explained that while it interprets statutes and provisions of the Arizona Constitution according to the plain language found therein, that it also must balance the underlying policy that once petitions are circulated, signed, and filed, they are presumed valid. Section 19-114 disqualifies any circulator who is not qualified to register to vote, and both A.R.S. § 16-101 and the Arizona Constitution prohibit a convicted felon from registering to vote unless fully restored to civil rights. Because the statutory language is unambiguous, the Court ruled that it must follow the text as written, even if the prohibition is more strict than in other states.
The Court then analyzed each of the circulator’s felony records and the applicable statutory code of the states in which the felonies occurred. The Court found that the Employees presented clear and convincing evidence that the circulators had not had their rights restored in those states, and therefore were ineligible to register to vote in Arizona as required by § 19-114.
Finally, the Court addressed the Committee’s arguments raised in its cross-appeal against the Employees. The Court declined to consider the first argument—that non-residents cannot be disqualified from gathering signatures—because the argument was not raised in the court below. The Court then found that the Employees presented clear and convincing evidence that three circulators were not Arizona residents, and therefore disqualified from petitioning signatures. The Court also rejected the Committee’s argument that the trial court erred by excluding signature sheets based on fact that the circulator avowed that each signor printed his or her own name when the evidence showed otherwise. In addition, the Court rejected the Committee’s argument that the trial court improperly allowed the Employees to amend their Complaint during trial because Arizona Rule of Civil Procedure 15(b) automatically amends the pleadings to conform to issues that are tried by express or implied consent. And finally, the Court found that the Employees’ claims were not barred by a five-day time limit imposed by § 19-122(A) and that no unreasonable delay occurred because the suit was filed two months before the ballots were printed.
President Judge Vasquez authored the opinion; Chief Judge Howard and Judge Kelly concurred