                       SUPREME COURT OF ARIZONA
                                En Banc

KRISTOFER M. SIPPEL,              )   Arizona Supreme Court
                                  )   No. CV-05-0004-AP/EL
              Plaintiff/Appellee, )
                                  )   Pinal County
                 v.               )   Superior Court
                                  )   No. CV-200401483
ELLIOTT E. FISHER,                )
                                  )
             Defendant/Appellant, )   MEMORANDUM DECISION
                                  )
                 and              )   (Not for publication
                                  )   Ariz. R. Sup. Ct. 111)
LAURA DEAN-LYTLE, LIONEL RUIZ,    )
SANDIE SMITH, JIMMIE KERR, and    )
KATHY CONNELLY,                   )
                                  )
            Defendants/Appellees. )
__________________________________)

          Appeal from the Superior Court in Pinal County
             The Honorable Janna L. Vanderpool, Judge

                               AFFIRMED


Kristofer M. Sippel                               Apache Junction
Plaintiff/Appellee, pro se

Elliott E. Fisher                                  Apache Junction
Defendant/Appellant, pro se

ROBERT CARTER OLSON, PINAL COUNTY ATTORNEY               Florence
     by   William H. McLean, Chief Civil Deputy County Attorney
     and Chris M. Roll, Deputy County Attorney
Attorneys for Defendants/Appellees
     Dean-Lytle, Ruiz, Smith, and Kerr

RICHARD JOEL STERN, APACHE JUNCTION
     CITY ATTORNEY                                 Apache Junction
Attorneys for Defendant/Appellee Connelly
B E R C H , Justice

¶1          This case involves a challenge by Kristofer M. Sippel to

the    nomination      petitions      filed     by    Elliott     E.    Fisher        for   the

position of Mayor of the City of Apache Junction.                        Fisher contends

that the trial court erred in holding that several signatures on

his    petitions    were      not     valid,    leaving     him    with        insufficient

signatures to qualify for a place on the ballot.                         Fisher appealed

the superior court’s ruling on several grounds.                          Because of the

time    constraints        in    this     accelerated        election          appeal,       we

previously issued an order affirming the judgment of the superior

court set forth in its signed Minute Entry.                            We stated that a

written   decision      would       follow     explaining    this       court’s       ruling.

This is that decision.

                         FACTS AND PROCEDURAL HISTORY

¶2          On     December      8,     2004,     Fisher    filed        his        nominating

petitions to run for the office of Mayor of Apache Junction.                                 He

turned in eight petitions containing a total of 109 signatures.

To    qualify    for    the     ballot,      Fisher    needed     a     minimum        of   101

signatures from qualified electors.                   Thus, Fisher submitted eight

signatures more than the minimum necessary to qualify for the

ballot.

¶3          On December 17, 2004, Sippel, an Apache Junction City

Council    Member,      challenged        twenty-two       signatures          on    Fisher’s

nominating       petitions,         pursuant     to    Arizona         Revised        Statutes


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(“A.R.S.”) § 16-351 (Supp. 2004).               Sippel alleged that, without

these signatures, Fisher did not qualify as a candidate for the

primary race to be held on March 8, 2005.                       Sippel’s motion to

challenge Fisher’s nominating petitions included an affidavit from

fellow Apache Junction City Council Member David Waldron, which

listed the twenty-two allegedly invalid signatures.

¶4          Pinal County Superior Court Judge Janna L. Vanderpool

held    a   hearing   on    December     27,     2004,     to    address    Sippel’s

allegations.      Sippel and Fisher attended the hearing, as did Pinal

County Recorder Laura Dean-Lytle, and Apache Junction City Clerk

Kathy Connelly.       Both Dean-Lytle and Connelly testified regarding

the    election   process    and    requirements     for    the    city    election.

Dean-Lytle further testified that, of the twenty-two signatures

Sippel challenged, only six were valid, leaving sixteen invalid

signatures.       Fisher cross-examined Dean-Lytle and Connelly, but,

despite having received notice of the hearing, did not call any

qualified witnesses of his own.

¶5          The    judge    found    that      sixteen     signers    of    Fisher’s

nominating petitions were not qualified voters in Apache Junction,

leaving Fisher with only ninety-three valid signatures.                    The judge

therefore concluded that Fisher failed to produce a sufficient




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number of valid signatures to qualify for the primary ballot.1

Fisher filed a timely appeal.

                                   DISCUSSION

A.   Standard of Review

¶6           Actions challenging signatures on a nominating petition

pursuant to A.R.S. § 16-351 are much like motions for injunctive

relief.      See Mandraes v. Hungerford, 127 Ariz. 585, 587, 623 P.2d

15, 17 (1981).       This court reviews a trial court’s decision to

grant   or    deny   a   motion    for    injunctive      relief   for    abuse   of

discretion, Valley Med. Specialists v. Farber, 194 Ariz. 363, 366,

¶ 9, 982 P.2d 1277, 1280 (1999), reviews its factual findings for

clear error, id., and reviews its legal conclusions de novo, Open

Primary Elections Now v. Bayless, 193 Ariz. 43, 46, ¶ 9, 969 P.2d

649, 652 (1998).

B.   Sufficiency of the Evidence

¶7           The   primary   issue   in     this   case    is   whether    Fisher’s

nominating     petitions     contained      a    sufficient     number    of   valid

signatures to qualify Fisher to run for mayor in the city’s March

2005 primary election.        Fisher claims that Sippel failed to prove

by clear and convincing evidence that sixteen of the challenged

signatures were invalid.          See Blaine v. McSpadden, 111 Ariz. 147,

149, 526 P.2d 390, 392 (1974) (requiring clear and convincing

1
     In future election cases, the trial judge’s minute entry
should clearly reflect that findings were made upon clear and
convincing evidence.

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evidence).       Fisher       argues    that    the    evidence      was    insufficient

because    Waldron’s        notarized      affidavit        was    not      an    official

document,2    and     because     the     affidavit      erroneously        stated       that

twenty-two signatures were invalid, when in fact only sixteen were

invalid.

¶8           Sippel’s      case    did        not    rely     solely       on    Waldron’s

affidavit,      however.           In     addition,         Sippel      presented         the

uncontroverted       testimony     of     Pinal      County    Recorder         Dean-Lytle,

which clearly established that sixteen of Fisher’s signatures were

from individuals who could not vote in the city’s mayoral contest.

Fisher failed to rebut that evidence.                    Thus the trial judge did

not clearly err in finding that clear and convincing evidence

demonstrated        that   Fisher’s       petition      lacked       sufficient       valid

signatures.

¶9           Fisher did not present any witnesses or provide other

evidence to rebut Sippel’s evidence that those sixteen signatures

were invalid.        On appeal, Fisher argues that the judge erred in

not   allowing      him    to   call    any    witnesses.         The    record      shows,

however,     that    Fisher     neither    subpoenaed       any    witnesses       for   the

scheduled hearing nor made an offer of proof establishing that the

witnesses he wished to call would provide any relevant testimony.

Moreover, regarding the persons whose signatures were challenged,


2
     See infra § C, Pleadings                       Requirements      (discussing         the
sufficiency of Sippel’s motion).

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the judge concluded that even if they testified as to their good-

faith belief that they were qualified voters in Apache Junction,

such evidence would not effectively rebut the evidence that they

were not qualified, because the statute defines a registered voter

as one whose name appears on the county voter registration list.

A.R.S.    §   16-161        (1996);    see    A.R.S.    §    16-351(E)       (Supp.   2004)

(stating      that    the    county    voter     register      “shall    constitute       the

official record to be used to determine” whether a signer is a

qualified elector).            For that reason, and because December 27th

was the scheduled hearing date, the judge denied Fisher’s request

to postpone the hearing so that he could subpoena those sixteen

individuals.

¶10           At     the    hearing,    Fisher       also    sought    to    call   William

O’Neil, the presiding judge of Pinal County Superior Court, to

testify about a 1997 election case involving Fisher, over which

Judge O’Neil presided.            Judge Vanderpool correctly concluded that

the   testimony        regarding       an     eight-year-old          case   involving      a

different      election       cycle    would    shed    no    light     on    whether     the

challenged     signatures       on     Fisher’s      nominating       petitions     for   the

2005 election were valid.

¶11           Thus, Judge Vanderpool did not abuse her discretion in

denying    Fisher’s         request    to    call    these    witnesses.        The   judge

appropriately weighed the evidence presented at the hearing and

found that Sippel had proven by clear and convincing evidence that


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Fisher   did    not     have     sufficient      signatures          on   his     nominating

petitions to qualify for the primary ballot.

C.    Pleadings Requirements

¶12         Fisher      also     argues    that   Sippel’s           motion      challenging

Fisher’s    nominating         petitions     failed       to     meet      the    statutory

requirements of A.R.S. § 16-351(A).                   He claims that Waldron’s

affidavit      provided     an     insufficient       basis          to    challenge     his

nominating petitions under A.R.S. § 16-351 and that Sippel failed

to attach an official voter registration document from the county

recorder.

¶13         Section      16-351(A)        sets    forth        the    requirements       for

challenging a candidate’s nominating petitions.                            It requires a

challenger to “specify in the action the petition number, line

number   and    basis     for    the   challenge      for      each       signature    being

challenged.”      Id.      The affidavit submitted with Sippel’s motion

carefully spells out Fisher’s petition number, the line number,

the signer’s name, and the basis for each of Sippel’s challenges.

The statute does not require the challenger to attach certified

documents from the county recorder regarding the invalidity of the

challenged signatures, as Fisher argues Sippel should have done,

or cite the statutory basis for the challenge.                             Thus the trial

judge did not err in ruling that Sippel’s motion satisfied the

statutory requirements.




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D.     Statements of the Deputy County Attorney

¶14         Fisher further alleges that Judge Vanderpool abused her

discretion by allowing the Deputy Pinal County Attorney to argue

on behalf of Sippel.          Fisher complains that during the December

27th   hearing,   the    judge   twice    allowed      Deputy    County   Attorney

William McLean “to speak for the Appellee Sippel.”                  In the first

instance, McLean objected to Fisher’s cross-examination of Pinal

County Recorder Dean-Lytle on the ground that Fisher was badgering

the witness.      The record shows that on that occasion McLean was

not speaking on behalf of Sippel, but rather was attempting to

protect his client from aggressive questioning.                   In the second

instance, McLean addressed the court regarding the issue at hand.

He stated that he was not “argu[ing] either for Mr. Sippel or for

Mr. Fisher.”      Because the county is a named party to the action,

it was appropriate for McLean to represent the county and make

arguments on behalf of his client.           Judge Vanderpool did not abuse

her discretion in allowing him to speak.

E.     Denial of Fisher’s Motion to Dismiss

¶15         Fisher   next     complains   that   the    trial    judge    erred   in

denying   his   motion   to    dismiss    Sippel’s     action.      But   Fisher’s

motion to dismiss provides no legal basis for dismissing Sippel’s

action.    Fisher’s motion asserts that Sippel was “impetuous” in

filing his petition, that Sippel failed to cite the statute under

which he brought his action, that he improperly took four days to


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file his challenge, and that he made spelling mistakes in his

motion.     Fisher failed to develop any legal argument justifying

dismissal of Sippel’s action, and thus the judge acted within her

discretion in denying his motion.3

¶16         Arizona is a notice pleading state.                             See Ariz. R. Civ.

P. 8(a).     Arizona courts do not dismiss actions for misspellings

or for failure to cite statutes if citation is not required by

law.     Section 16-351(A), the statute underlying this action, does

not require citation.               As long as actions are timely filed and

state a claim, they will not be dismissed for having been filed

impetuously.        Thus, because Sippel filed his action within the

period     allowed       by   law,        stated     a    claim,           and   met   statutory

requirements, the court did not err in denying Fisher’s motion to

dismiss.

F.     Judge Vanderpool’s Impartiality

¶17         Fisher       alleges     that     the    trial          judge    violated    Arizona

Supreme    Court     Rule     81,    the    Arizona           Code    of    Judicial    Conduct,

because    she     was    not   impartial          in     this       proceeding.         To   the

contrary, the record shows that Judge Vanderpool was judicious and

patient    with      Fisher,        who    appeared           pro    se.         She   explained

procedures    and     rules     of    evidence           to    him,    protecting       his   due

3
     Fisher did not file an answer to Sippel’s motion. His motion
to dismiss, however, does not properly fit into any of the Rule
12(b) categories. See Ariz. R. Civ. P. 12(b). For this reason as
well, the trial judge acted appropriately in dismissing Fisher’s
motion.

                                             - 9 -
process rights, and occasionally allowing him to speak out of

turn.     Indeed, the record shows that the trial judge attempted to

ensure that Fisher received a fair hearing.                         Thus, Fisher has not

met his burden of establishing a violation of Rule 81.

G.    Irreparable Harm

¶18           Fisher       claims    that     Sippel       “cannot        show    irreparable

harm.”        The   statute,       however,    does        not    require    a    showing    of

irreparable harm for a challenge to a nominating petition.                                  See

A.R.S.    §    16-351.        The   judge,     therefore,          did    not    err   in   not

requiring such a showing.

H.    Laches

¶19           Fisher claims that Sippel’s motion should be barred by

the   doctrine      of     laches   because     Sippel       waited       four    days    after

Fisher    filed      his    nominating       petitions           before    challenging      the

signatures on them.           A challenge may be filed up to ten days after

the final day for filing petitions has passed.                                  A.R.S. § 16-

351(A).       Sippel therefore acted in accordance with the statute and

did     not    unnecessarily        or   prejudicially            delay     in   filing     his

challenge.          The    trial    judge    did     not    abuse     her    discretion      in

finding that the action was not barred by laches.

                                         CONCLUSION

¶20           We affirm the ruling of the trial court that Sippel has

proved by clear and convincing evidence that Fisher’s nominating

petitions did not contain a sufficient number of valid signatures


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to qualify Fisher for the Apache Junction mayoral primary race to

be held on March 8, 2005.   We also affirm the trial court’s ruling

denying Fisher’s motion to dismiss.      The judgment of the trial

court is affirmed.



                                   _______________________________
                                   Rebecca White Berch, Justice




CONCURRING:



______________________________________
Charles E. Jones, Chief Justice


______________________________________
Ruth V. McGregor, Vice Chief Justice


______________________________________
Michael D. Ryan, Justice


______________________________________
Andrew D. Hurwitz, Justice




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