    

AUG 1 0 2004

NQEL K. DESSA|NT
OLERK E ITI'

 

SUPREME COURT OF ARIZONA

   

MARTIN LEPIRD, SR., Arizona Supreme Court
No. CV-04-O239-AP/EL
Plaintiff-Appellant,

Pima County

Superior Court

No. C-2004-3318

V.

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PIMA COUNTY BOARD OF SUPERVISORS, )
RAY CARROLL, ANN DAY, SHARON )
BRONSON, RICHARD ELIAS, RAMON )
VALADEZ; CLERK OF THE BOARD OF ) MEMORANDUM DECISION
SUPERVISORS, LORI GODOSHIAN; )
DIRECTOR OF THE PIMA COUNTY ) (Not for Publication
DIVISION OF ELECTIONS, BRAD ) Ariz. R. Sup. Ct. lll)
NELSON; AND COUNTY RECORDER, F. )
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ANN RODRIGUEZ,
Defendants-Appellees,
and
DAVID LESTER,

Defendant~Real Party in Interest.

Appeal from the Superior Court in Pima County
The Honorable Paul E. Tang, Judge

AFFIRMED

MICHAEL AARON HARWIN, P.C. TuCSon
by Noah J. Van Amburg
Attorney for Plaintiff-Appellant

BARBARA LaWALL, PIMA COUNTY ATTORNEY’S OFFICE TucSon

by Karen S. Friar, Deputy Pima County Attorney

and ChriStopher L. Straub, Deputy Pima County Attorney
AttorneyS for Defendants-Appellees

ELLINWOOD & PLOWMAN, L.L.P. TucSon
by Ralph E. Ellinwood
Attorneys for Defendant-Real Party in Interest

B E R C H, Justice

I1 This case involves a challenge by incumbent Martin
Lepird, Sr., to the nomination petitions filed by challenger
David Lester for the position of Constable of the Pima County
Justice Precinct No. l. Following a hearing and oral argument
in superior court, the judge found that Lepird had proved by
clear and convincing evidence that Lester falsely certified that
he had witnessed each signature on six petitions. Relying on
Brousseau v. Fitgerald, 138 Ariz. 453, 675 P.2d 713 (l984), the
trial judge invalidated those petitions in their entirety.
Those six petitions are not involved in this appeal.1

L2 Lepird also challenged forty-eight other petitions
that bear Lester’s signature as the circulator. Lepird called
Lester to testify regarding the circulation and certification of
the petitions in question, but Lester invoked his Fifth
Amendment privilege against self-incrimination and refused to

answer any questions. Lepird presented no other evidence

1 Lepird, the incumbent, challenged Lester’s nominating

petitions, which contain 1095 signatures. The parties agree
that Lester needs only 573 valid signatures to remain on the
primary ballot. The Pima County Elections Director determined

that 322 signatures were invalid, leaving 773 presumptively
valid signatures.
_2_

regarding the forty-eight contested petitions.

T3 The trial judge, declining to draw any negative
inference from Lester’s assertion of the privilege, found that
Lepird had failed to prove by clear and convincing evidence that
the forty-eight contested petitions were invalid.

I4 Lepird has appealed pursuant to Arizona Revised
Statutes (“A.R.S.”) § 16-35l(A) (Supp. 2003), alleging that the
trial judge erred in two respects: first, in concluding that he
could not draw a negative inference from Lester’s assertion of
the privilege against self-incrimination,2 and, second, in
refusing to infer from Lester’s fraudulent certification of the
six petitions that his certifications of the remaining forty-
eight were also fraudulent. On July l6, 2004, this court issued
an order affirming the trial court’s judgment. By this
memorandum decision, we now explain our previous order.

L5 We agree with Lepird that the trial judge erred in
determining that he could not draw a negative inference from
Lester’s invocation of his Fifth Amendment privilege. As this
court observed in an earlier election fraud case, an inference
that “testimony would have been unfavorable” may be drawn from

the invocation, in a civil case, of the privilege against self-

2 Lester argues that Lepird waived this argument. The record

demonstrates that it was adequately preserved.

_3_

incrimination. Buzard th Griffin, 89 Ariz. 42, 48, 358 P.2d
155, 158 (l960) (citing 8 Wigmore on Evidence § 2272 (3d ed.
Supp. l957)); see also Baxter v. Palmigiano, 425 U.S. 308, 318
(1976). The trial judge therefore could have inferred from
Lester’s refusal to answer questions that the answers would have
harmed Lester’s case. But Lepird was required to prove the
invalidity of Lester’s petitions by clear and convincing
evidence. See Blaine v. McSpadden, 111 Ariz. 147, 149, 526 P.2d
390, 392 (1974). Any negative inference that could be drawn
from Lester’s invocation of his Fifth Amendment privilege cannot
alone meet that burden of proof. See Baxter, 425 U.S. at 317-
18.

L6 Lepird next argues that because the trial judge found
by clear and convincing evidence that Lester had falsely sworn
to have witnessed signatures on six petitions, he should have
inferred from this fact that Lester also falsely verified the
remaining forty-eight petitions. For this proposition he relies
upon Brousseau, 138 Ariz. at 453, 675 P.2d at 7l3, in which this
court held void petitions on which some signatures had been
falsely certified. He urges that Brousseau requires that we
invalidate the remaining forty-eight petitions certified by
Lester. Brousseau, however, invalidated only the petitions on

which a showing of fraud had been made as to some signatures on

each petition. Id. at 456, 675 P.2d at 716. lt did not address
petitions other than those containing the false certifications.
Id.

I7 Lepird asserts that the principle of Brousseau should
be extended to cover this case and invalidate the remaining
forty-eight petitions. He relies upon the reasoning contained
in a line of New York election cases that have held to similar
effect. See Weisberger v. Cohen, 22 N.Y.S.2d 835, 836 (App.
Div. 1940) (affirming lower court’s determination that at least
three authenticators submitted signature sheets containing
forgeries and other irregularities was, in the absence of
evidence demonstrating the validity of the other signatures,
sufficient to invalidate the entire petition); Bloom v. Power,
193 N.Y.S.2d 697 (Sup. Ct. 1959) (invalidating entire petition
because candidate submitted sheets with signatures he knew to be
invalid); In re Burns, 106 N.Y.S.2d 993 (Sup. Ct. l951)
(invalidating all sheets submitted by an authenticator who
submitted several sheets with irregularities, in absence of
proof that signatures were valid); Collins v. Heffernan, 63
N.Y.S.2d 692 (Sup. Ct. 1946) (invalidating a petition for
misfeasance of “agents, employees and friends” in changing dates
on the petition). We decline to adopt such, a blanket rule,

preferring that challengers establish as a matter of proof in

each case whether petitions are invalid.3

L8 We are left with a situation in which Lepird has shown
that Lester falsely certified six petitions. As to the
remaining forty-eight, which were circulated earlier in time

than the six the trial judge invalidated, the only evidence

before the trial judge was any negative inference that might be

drawn from Lester’s refusal to testify. Because that inference

alone cannot establish by clear and convincing evidence that

Lester had falsely certified that he had witnessed the

signatures on the remaining forty-eight petitions, we conclude

that the judgment of the trial court was not in error.

I9 ` Our conclusion is bo1stered. by the fact that Lepird

could have presented evidence to establish that Lester did not

witness the signatures. He chose not to do so, but instead

relied upon his opponent's testimony to establish the case.

L10 Moreover, whenever there is doubt that a litigant has

established his petition challenge, we prefer to give effect to

the voters' intent in signing nomination petitions. The effect

of this ruling is that the voters will have a chance to say

3 Although Lepird argued that all petitions should be
invalidated based upon the finding that signatures on six
petitions were falsely certified, he did not argue that the
finding of fraud on some should shift the burden of proof to
Lester as to the remaining forty-eight petitions. We therefore

leave that question for another day.

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whether they want to have Lester serve as constable.4

L11 Finally, we note that Lepird may, as part of his
campaign, inform the voters that the trial court found by clear
and convincing evidence that Lester fraudulently verified six
petitions and filed them with a government agency. He may point
out that such conduct goes to the essence of a constable’s job:
serving process and verifying service by filing sworn documents
in court.

CONCLUSION

L12 We affirm the ruling of the trial court that Appellant
Lepird has failed to prove by clear and convincing evidence that
Lester fraudulently circulated the forty-eight petitions at
issue. The judgment of the trial court is affirmed.

Rebecca white Berch, Justice

CONCURRING:

THF¢¢»¢</“DH/~\

Michael D. Ryan,/Justibe

Q¢/L,/

Andrew D. Hurwitz, Justice

* Pursuant to Article 6, Section 2 of the Arizona
Constitution, this case was heard by a panel of three justices
of this court.

4 There are other sanctions available for fraudulent filings,

ones that do not penalize the voters.
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