FILED TONI HELLON CLERK, SUPERIOR COURT 8/14/2013 9:00:50 AM

ARIZONA SUPERIOR COURT, PIMA COUNTY HON. JAMES E MARNER CASE NO. DATE: YOLANDA PARKER, ET AL. Plaintiff(s) VS. CITY OF TUCSON, ET AL. Defendant(s) RULING IN CHAMBERS UNDER ADVISEMENT RULING REGARDING REAL PARTY IN INTEREST'S MOTION TO DISMISS The Real Party in Interest, Committee for Sustainable Retirement in Support of Initiative Petition 2013 I004 (hereinafter the Committee) has filed a Motion to Dismiss pursuant to Rule 12( b)(6) of the Arizona Rules of Civil Procedure alleging that the complaint filed by Plaintiffs is unverified and untimely. Regarding the claim that the complaint is unverified, Plaintiffs argue that, given the nature of their claim, a verified complaint is not required. Nonetheless Plaintiffs have attached verifications to their response brief. Regarding the claim that the complaint is untimely, Plaintiffs argue that the five day period provided by A.R.S. 19 122(A) is not applicable to this claim as it is being brought pursuant to A.R.S. 19122(C). A statute of limitations defense can properly be raised by way of a motion to dismiss where it conclusively appears from the face of the complaint that the claim is barred. Engle Bros., Inc., v. Superior Court, 23 Ariz. App. 406, 408, 533 P.2d 714, 716 (App. 1975). Plaintiffs complaint alleges in paragraph 20 that on July 2, 2013, the Committee submitted 23,364 signatures/1857 petition signature sheets to the Tucson City Clerk's office. Paragraph 21 and indicates that on July 2, 2013, the Tucson City Clerk's office transmitted 22,693 signatures he determined to be "eligible for verification" to the Pima County Recorder's office. Plaintiffs complaint is dated July 22, 2013. The Committee contends that Plaintiffs complaint had to be filed within five days of the Tucson City Clerks submission of the 22,693 signatures to the Pima County Recorders office (by July 7, 2013) and that Plaintiffs complaint was filed sixteen days too late. The Committee relies heavily on the Arizona Supreme Court decision of Transportation Infrastructure Moving Arizonas Economy v. Brewer, 219 Ariz. 207, 196 P.3d C20134029 August 14, 2013

Nancy Beatty Judicial Administrative Assistant

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229 (2008) (hereinafter TIME). The Committee argues that in TIME, the court held that, per A.R.S. 19 122(A), not only does the five day statute of limitations apply to claims arising from the Secretary of States (or here, County Recorders) refusal to accept and file a petition or refusal to transmit facsimiles of signature/affidavits of circulators, it applies to any action taken by the Secretary of State, or here, the County Recorder, in the verification process. Plaintiffs counter that their complaint is being brought pursuant to A.R.S. 19122(C) which, unlike section (A), does not have a five day time requirement in which a party must file a claim in Superior Court. Plaintiffs argue that Defendants proposed expansion of the TIME decision would run counter to the actual statutory provision at issue and is contrary to Arizona case law directly on point. The Court declines to adopt the Committees proposed expansion of the TIME decision. First, the Court notes that the plain language of A.R.S. 19122 applies the five day time limit to challenges brought pursuant to section (A) which relate specifically to a refusal by the Secretary of State to accept and file a petition or a refusal to transmit facsimiles of signature sheets or affidavits of circulators to County Recorders for certification. Plaintiffs complaint makes no such allegations but rather alleges that the initiative is not legally sufficient due to flaws in the signature collecting process. Such claims are allowed under section (C) of the statute. Further, section (A) provides two five-day time limits in which a party seeking relief must file an action, i.e., five days to file a claim for relief with the Superior Court and five days to file an appeal of the Superior Courts decision to the Supreme Court. Section (C) is different in that it provides for only one five day time limit the time in which a party who brings a claim under this section must appeal the Superior Court decision to the Supreme Court. The best and most reliable indicator of a statute meaning is its language. Rineer v. Leonardo, 194 Ariz. 45, 977 P.2d 767 (1999); State v. Williams, 175 Ariz. 98, 854 P.2d 131 (1993). Additionally, where the legislature has specifically used the term in certain places within a statute and excluded it in another place, courts will not read that term into the section from which it was excluded. Bigelsen v. Board of Medical Examiners, 175 Ariz. 86, 91, 853 P.2d 1133, 1139 (App. 1993) citing Board of Regents v. Public Safety Retirement Fund Manager, 160 Ariz. 150, 157, 771 P.2d 880, 887 (App. 1989). If the legislature intended the five day time limit to apply to claims brought pursuant to section (C), it would have mirrored or referenced the language it used in section (A). This Court cannot somehow create a five day deadline that doesnt otherwise exist through a strained/overly expansive application of the TIME decision.

Nancy Beatty Judicial Administrative Assistant

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Additionally, in TIME the Arizona Supreme Court specifically referenced its earlier decision of Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 (1991) where it held that challenges to the legal sufficiency of a petition brought pursuant to A.R.S. 19122(C) have no specific time limitations but must be initiated and heard in time to prepare the ballots for absentee voting to avoid rendering an action moot. The TIME decision did not overturn or even criticize the Kromko decision. Instead, the court in TIME focused its analysis on the nature of the claim before it, i.e., the Secretary of States refusal to place an initiative on the ballot. This was made particularly clear by the courts observation that there is no significant harm to the initiative sponsors in reinforcing the short time limit to bring a claim. TIME v. Brewer, 219 Ariz. at 214. Here the Court finds that Plaintiffs action was brought in a timely manner in accordance with A.R.S. 19122(C). The pending deadlines for preparation of upcoming election ballots are sufficiently distant in the future to allow either party to seek further review of this Courts ruling. The Court further finds that the claim that Plaintiffs complaint was unverified is MOOT. Accordingly, IT IS ORDERED that the Real Party in Interests motion to dismiss is DENIED.

cc:

Christopher L Hering, Esq. John C. Kelly, Esq. Lisa T. Hauser, Esq. Richard A Brown, Esq. Richard M. Rollman, Esq. Roopali H Desai, Esq.

Nancy Beatty Judicial Administrative Assistant