                      SUPREME COURT OF ARIZONA
                               En Banc

TOM RAWLES and LINDA RAWLES       )      Arizona Supreme Court
individuals and electors,         )      No. CV-04-0005-AP/EL
                                  )
                     Petitioners, )
                                  )      Maricopa County
                 v.               )      Superior Court
                                  )      No. CV2003-024219
DENNIS KAVANAUGH, real party in   )
interest; BARBARA JONES, the      )
duly appointed City Clerk who is )
named solely in her official      )
capacity; R. FULTON BROCK, DON    )
STAPLEY, ANDREW M. KUNASEK, MARY )
ROSE WILCOX, and MAX WILSON, as   )
duly elected and appointed        )      MEMORANDUM DECISION
members of the Maricopa County    )      (Not for Publication,
Board of Supervisors who are      )      Ariz. R. Sup. Ct. 111)
named solely in their official    )
capacity; HELEN PURCELL, the      )
duly elected Maricopa County      )
Recorder who is named solely in   )
her official capacity; and KAREN )
OSBORNE, the duly appointed       )
Maricopa County Director of       )
Elections who is named solely in )
her official capacity,            )
                                  )
                     Respondents. )
__________________________________)

        Appeal from the Superior Court in Maricopa County
                The Honorable Paul A. Katz, Judge

                              AFFIRMED

MUELLER & DRURY, P.C.                                     Scottsdale
     by   Douglas V. Drury
Attorney for Petitioners Rawles

GAMMAGE &   BURNHAM, P.L.C.                                  Phoenix
     by     Lisa T. Hauser
     and    Leonard W. Aragon
Attorneys   for Respondent Kavanaugh
CITY OF MESA ATTORNEY’S OFFICE                                                    Mesa
     by   Deborah J. Spinner, City Attorney
Attorney for Respondent Barbara Jones

RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY                                  Phoenix
     by   Bruce P. White, Deputy County Attorney
     and Jill M. Kennedy, Deputy County Attorney
Attorneys for Respondents Brock, Stapley,
     Kunasek, Wilcox, Wilson, Purcell, and Osborne

B E R C H, Justice

¶1          Respondent-Appellant Dennis Kavanaugh seeks review of

the superior court’s judgment that the term-limits provision in

the Mesa City Charter prohibits him from seeking an additional

term   as   a    City    Councilmember.           Kavanaugh    asserts     that    the

superior    court      erred    in    applying    the    two-term    limitation     to

prevent him from seeking a third term because his two terms as a

Councilmember         were   served     in   different    positions.       Kavanaugh

also argues that the claims of Petitioners Tom and Linda Rawles

should be barred by laches.              Because of time constraints in this

accelerated       election      appeal,      we   previously    issued     an    order

vacating    an    existing      stay     order    and    affirming   the   superior

court’s     order      enjoining      the    printing     of   electoral        ballots

containing Kavanaugh’s name as a candidate for the Mesa City

Council.         We    stated    that    a    written    decision    would      follow

explaining this court’s ruling.               This is that decision.

                         FACTS AND PROCEDURAL HISTORY

¶2          In 1996, Dennis Kavanaugh was elected in an “at-large”

election to serve on the Mesa City Council for a four-year term.


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Under   the      “at-large”       system,       all     municipal    electors       were

eligible    to    vote     for    all    six     City     Councilmembers.           Each

prevailing candidate served a four-year term as Councilmember

representing the entire city.                  In 1998, the Mesa City Charter

was amended to divide the city into six geographic districts,

each of which elected its own District Councilmember.                       Under the

new system, an elector may vote only for candidates from the

elector’s     home     district.        In     the     first   election     under    the

amended system in 2000, Kavanaugh was elected the District 3

Councilmember.

¶3          The    Mesa    City    Charter       has    contained    a     term-limits

provision for City Councilmembers since 1967.                        That provision

prohibits any person from serving as a “Councilmember for more

than two (2) consecutive four- (4-) year terms.”                           Kavanaugh’s

term as the District’s Councilmember expires this year.                           After

receiving     advice     from    the    Mesa    City    Attorney    that    the   term-

limits provision did not prevent him from serving an additional

term, Kavanaugh completed the required petitions and submitted

them on December 8, 2003.

¶4          On    December       22,    2003,    Tom     Rawles,    the    only   other

candidate for District 3 Councilmember, and his wife, Linda,

filed a petition in superior court pursuant to Arizona Revised

Statutes (“A.R.S.”) section 16-351(B) (Supp. 2003) challenging

Kavanaugh’s candidacy.            The petition alleged that Kavanaugh had


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already     served       two     terms    as    a     Councilmember           and    was     thus

ineligible to seek a third term.                     In response, Kavanaugh claimed

that    because      the     Rawleses      delayed         in   seeking       relief,      their

action was barred by the doctrine of laches.                                 Kavanaugh also

asserted that Mesa’s term-limits provision did not prohibit him

from serving an additional term because he had only served one

term as a “District Councilmember,” the other term having been

served as a “Councilmember at-large.”

¶5            The     superior          court       found       that        both     “at-large

Councilmembers”            and     “District          Councilmembers”               served     as

“Councilmembers”           as    that    term       was    used       in    the    term-limits

provision.         The court also found that both parties acted in good

faith   and    there       was    no    undue       delay,      and    therefore       rejected

Kavanaugh’s         laches       defense.            The     court         entered     judgment

enjoining the City from listing Kavanaugh as a candidate on the

ballots for the upcoming City Council election.                              Kavanaugh filed

a timely appeal.

                                         DISCUSSION

       A.     Standard of Review

¶6            In    an     appeal       from    a     declaratory           judgment       action

brought in the superior court, the reviewing court must defer to

the trial court’s findings of fact, but is not bound by the

trial court’s conclusions of law.                    Motel 6 Operating Ltd. P’ship

v. City of Flagstaff, 195 Ariz. 569, 570-71, ¶ 7, 991 P.2d 272,


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273-74    (App.   1999).      The   parties      agreed   that    there    were    no

issues of fact in dispute.          Accordingly, we move directly to the

trial court’s legal determinations, which we review de novo.

Id. at 571, 991 P.2d at 274.

     B.     Merits1

            1.     Term-Limits Provision

¶7          Kavanaugh appeals the superior court’s judgment that

the Mesa City Charter’s term-limits provision precludes his bid

for reelection as District 3 Councilmember.               He asserts that the

provision does not apply to this case because he has only served

a single term as a “District Councilmember.”                    We disagree with

his analysis.

¶8          Section 201(E) of the Mesa City Charter provides that

“[n]o person shall be eligible to be elected to the office of

Councilmember for more than two (2) consecutive four- (4-) year

terms.”     Because     we   indulge    “a     presumption   in    favor    of    the

eligibility”      of   candidates,     see     McCarthy    v.     State    ex    rel.

Harless, 55 Ariz. 328, 335, 101 P.2d 449, 451 (1940), we view


     1
          In the original action before Judge Paul A. Katz,
Kavanaugh contested the court’s jurisdiction to hear the
dispute, alleging that the Mesa City Charter provided its City
Council with original jurisdiction over candidate-qualification
disputes.    Judge Katz rejected Kavanaugh’s argument, holding
that the superior court was an appropriate venue and had
jurisdiction under A.R.S. § 16-351.        Kavanaugh expressly
declined   to   appeal Judge  Katz’s  ruling  on   this  issue.
Consequently, we do not consider the issue of jurisdiction in
this decision.

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narrowly such limits on a candidate’s ability to serve.                             Id. at

334-35, 101 P.2d at 451 (noting that we should read restrictions

so    as   not    to     “impair[]   the   right      of    the     people     to   select

officers of their own choosing”).

¶9            Nonetheless, we interpret statutes, rules and charter

provisions        according    to    their   plain         language,      giving     “full

effect to the intent of the lawmaker.”                 Adams v. Bolin, 74 Ariz.

269, 276, 247 P.2d 617, 621 (1952).                  The word “Councilmember” in

the    1967      term-limits    provision    does      not       distinguish        between

district      and   at-large    members.        It    appears       to    refer     to   all

individuals who serve as members of the City Council.

¶10           Kavanaugh contends, however, that the language change

in the City Charter following the 1998 amendments renders “at-

large Councilmember” and “DISTRICT Councilmember” two distinct

positions.        Kavanaugh notes that the 1998 amendments changed the

language of Section 201(A) from “[t]here shall be a City Council

consisting of a Mayor and six (6) other Councilmembers” to its

current version:          “There shall be a City Council consisting of a

Mayor and six (6) other DISTRICT Councilmembers.”                          (Emphasis in

original.)             Thus,   Kavanaugh     asserts         that       “the   two-term-

limitation        only    applies    prospectively          to    the    newly      created

District Councilmembers.”

¶11           Kavanaugh’s argument is undercut not only by the plain

language of the term-limits provision, but also by the practical


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effect that such a rigid construction would have on the term-

limits rule.        If adopted, the argument that the position of

“District Councilmember” is distinct from that of an “at-large

Councilmember” would eviscerate the term-limits rule.                            By that

reasoning, if council boundaries shifted, a Councilmember would

hold a new district position, one not subject to the term-limits

rule.    Nor under this reasoning would Kavanaugh be barred from

serving a third or fourth term as a Councilmember if he moved

from District 3 to another district.                        Indeed, because the City

has   recently   changed         to       district      representation,       Kavanaugh’s

interpretation would mean that the term-limits provision applies

to no one for this election cycle.                      Moreover, if the position of

“District    Councilmember”            is    separate        and   distinct    from    the

position of “Councilmember,” the former would appear not to be

bound at all by Section 201(E)’s limitation on the terms of

“Councilmembers.”         This could not have been the intent of the

drafters.     The       plain    language         of    Section    201(E),    that    “[n]o

person   shall     be     eligible         to    be     elected    to   the   office    of

Councilmember for more than two (2) consecutive four- (4-) year

terms,” must be construed to mean what it says.

¶12         Additionally,            we    note      that    despite    the   fact    that

Kavanaugh    originally          served         as     an   “at-large    Councilmember”

before becoming a “District Councilmember,” he does the same job

and   represents    many        of    the    same      constituents     he    represented


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before.              This    is    not     a   “new”     or      “distinct”     public     office.

Rather, it appears that the 1998 amendments merely added the

term “District” to the position title to highlight that future

Councilmembers               would    be       elected      from      districts       rather    than

serving at-large.

¶13              We therefore conclude that Section 201(E) of the Mesa

City       Charter          should    be       read    to     limit     the    ability     of    all

Councilmembers to exceed the term-limits rule.                                     This view is

consistent both with a reading of the Charter as a whole and

with       an    existing         Attorney      General        Opinion    that     redistricting

should not be permitted to circumvent term limits.                                        See Op.

Ariz. Att’y Gen. I01-019 (noting that term limits reduce the

advantages            of    incumbency,         a     purpose      that   is    hindered        if    a

redistricting               process      allows        an     incumbent       to    run   for        an

additional term).2

                 2.         Laches

¶14              Kavanaugh asserts that the Rawleses’ claim should be

barred          by    the     doctrine         of     laches      because      they    failed        to

challenge            Kavanaugh’s         candidacy          in    a    timely      manner.           We

       2
          Kavanaugh attempts to distinguish his case by noting
that his situation is not one of redistricting, but rather
“districting” for the first time.     This distinction is not
compelling, as the overriding issue remains whether a candidate
can exceed a term-limits rule simply by changing constituencies
or having his constituency changed.      In both situations -
redistricting and districting - the candidate is alleging that
his term limits are not implicated since he now represents a
different constituency.

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disagree.

¶15          The   defense   of   laches     is   available    in    election

disputes.     See, e.g., Mathieu v. Mahoney, 174 Ariz. 456, 459,

851 P.2d 81, 84 (1993) (noting that the “concern with timeliness

stems in part from the notion that ‘disputes concerning election

and petition matters must be initiated and heard in time to

prepare the ballots for absentee voting to avoid rendering an

action moot’”) (quoting Kromko v. Superior Court, 168 Ariz. 51,

57, 811 P.2d 12, 18 (1991)).          The current case raises concerns

similar to those in Mathieu because it, too, was brought on the

eve of ballot preparation.

¶16          However, the facts of Mathieu differ with respect to

both the extent of and the purpose for the delay in bringing the

action.      In Mathieu, the petitioners did not file an action

until more than a year after learning of a group’s intent to

have an initiative placed on the ballot.             Id. at 459, 851 P.2d

at 84.    The evidence in the current case is that the Rawleses

filed their action within ten days after Kavanaugh qualified for

the ballot, as required by A.R.S. § 16-351.

¶17         Kavanaugh argues that the Rawleses should have brought

this action long before December 22, 2003, the date this case

was filed.     He points to evidence that Tom Rawles knew no later

than October 22, 2003, of Kavanaugh’s interest in seeking an

additional    term.     We   note,   however,     that   Kavanaugh   did   not


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become an official candidate until he submitted his petitions on

December     8,   2003,    the    last      day    for   submitting     candidacy

petitions.        Thus    any    claim    before    December   8,     2003   would

arguably not have been ripe.              See Winkle v. City of Tucson, 190

Ariz. 413, 415, 949 P.2d 502, 504 (1997) (“The ripeness doctrine

prevents a court from rendering a premature judgment or opinion

on a situation that may never occur.”).                  Only two weeks passed

between the time that the Rawleses’ action ripened and the time

they filed this action.           Consequently, we agree with the trial

court’s determination that both parties acted in good faith and

affirm the court’s conclusion that the doctrine of laches does

not apply.

                                         CONCLUSION

¶18          We affirm the decision of the superior court that the

name of Councilmember Kavanaugh shall not appear on the 2004

District 3 ballot for the City of Mesa, Arizona.



                                         __________________________________
                                         Rebecca White Berch, Justice


CONCURRING:


________________________________________
Charles E. Jones, Chief Justice


________________________________________
Ruth V. McGregor, Vice Chief Justice


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________________________________________
Michael D. Ryan, Justice


________________________________________
Andrew D. Hurwitz, Justice




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