Ariz. Republican Party v. Richer

547 P.3d 356

ARIZONA REPUBLICAN PARTY, Plaintiff/Appellant,

v.Stephen RICHER, as Maricopa County Recorder; and the Maricopa County Board of Supervisors, by and through, Clint Hickman, Jack Sellers, Thomas Galvin, Bill Gates, Steve Gallardo, Defendants/Appellees,Adrian Fontes, in his official capacity as Secretary of State; Arizona Democratic Party, Intervenors/Appellees.

No. CV-23-0208-PR

Supreme Court of Arizona.

Filed May 2, 2024

Appeal from the Superior Court in Maricopa County, The Honorable John R. Hannah, Jr., Judge, No. CV2020-014553. REVERSED IN PART

Opinion of the Court of Appeals, Division One, 255 Ariz. 363, 532 P.3d 355 (App. 2023). VACATED IN PART

Dennis I. Wilenchik (argued), John D. Wilenchik, Garo V. Moughalian, Wilenchik & Bartness, P.C., Phoenix, Attorneys for Arizona Republican Party

Rachel H. Mitchell, Maricopa County Attorney, Joseph Branco, Deputy County Attorney, Joseph Eugene La Rue, Deputy County Attorney, Phoenix, Attorneys for Maricopa County Board of Supervisors, Stephen I. Richer, Clint L. Hickman, Jack Sellers, Thomas Galvin, Bill Gates, and Steve Gallardo

Kristin K. Mayes, Arizona Attorney General, Karen J. Hartman-Tellez (argued), Assistant Attorney General, Kara Karlson, Assistant Attorney General, Kyle R. Cummings, Assistant Attorney General, Phoenix, Attorneys for Adrian P. Fontes

Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Amicus Curiae Statecraft PLLC

JUSTICE LOPEZ authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, BEENE, MONTGOMERY, and KING joined.

JUSTICE LOPEZ, Opinion of the Court:

¶1 This case arises from a lawsuit challenging the manner in which Maricopa County election officials conducted a mandatory hand count of ballots following the 2020 general election. We consider whether the trial court and the court of appeals erred in awarding attorney fees against the plaintiff, Arizona Republican Party (the "ARP"), and its attorneys, John D. Wilenchik, Lee Miller, and Wilenchik & Bartness, P.C. (collectively "Petitioners").¹ The court awarded fees under A.R.S. § 12-349(A)(1) and (F), which provides that courts "shall assess reasonable attorney fees" if, an attorney or a party "[b]rings or defends a claim" that "is groundless and is not made in good faith." We hold that the attorney fees award was improper because Petitioners’ claim was not groundless, thus obviating any need to determine whether the claim was made in the absence of good faith.

BACKGROUND

¶2 Arizona requires county election officers to conduct a "hand count" following each countywide primary, special, general, and presidential preference election ("PPE"). A.R.S. § 16-602(B). The purpose of this procedure is to ensure the accuracy of electronic voting machines and tabulators. See id. Consistent with this purpose, the hand count initially reviews the ballots from roughly two percent of the precincts in each county. See § 16-602(B)(1). The precincts to be hand counted are selected by the "county political party chairman for each political party that is entitled to continued representation on the state ballot" or such chairman’s designee. Id. If the hand count reveals a level of accuracy within a "designated margin" chosen beforehand by the "vote count verification committee," then the hand count ends, and the electronic election results become final. § 16-602(C), (K)(4). If the hand count reveals inaccuracies that equal or exceed the designated margin, then the hand count expands in stages. § 16-602(C)–(E).

¶3 Following the 2020 general election, Maricopa County election officials conducted a hand count as prescribed by the Election Procedures Manual ("EPM") that the Arizona Secretary of State (the "Secretary") had promulgated the year prior, in December of 2019 (the "2019 EPM"). Ariz. Sec’y of State, 2019 Election Procedures Manual (2019), https://apps.azsos.gov/election/files/epm/2019_elections_procedures_manual_approved.pdf. Although the actual hand count does not begin until after the polls have closed, the procedures preceding the hand count commence several weeks prior to the election. For example, "[a]t least 14 days prior to a countywide primary, special, general, or PPE election, the officer in charge of elections must notify the county chairpersons of each recognized political party of the requirement to designate Hand Count Board members." 2019 EPM at 213. Further, "[t]he political party county chairpersons must designate Hand Count Board members and alternates at least seven days before the election." Id. And, after "all ballots voted in the precinct polling places have been delivered to the central counting facility," "[t]he county political party chairpersons (or designees) shall take turns randomly drawing the precincts, vote centers, or consolidated polling places for the hand count." Id. at 215.

¶4 In Arizona, each county’s board of supervisors organizes elections by "establish[ing] a convenient number of election precincts." A.R.S. § 16-411(A). Each precinct ordinarily contains one "polling place" where the election is held. § 16-411(B). However, in 2011, the legislature amended § 16-411(B) to permit county boards to utilize "voting centers in place of or in addition to specifically designated polling places." 2011 Ariz. Sess Laws ch. 331, § 3 (1st Reg. Sess.). A voting center allows any voter in the county, regardless of the voter’s assigned precinct, to cast a ballot at the center. See id. In the same act, the legislature also amended §16-602(B) to direct that "[t]he hand count shall be conducted as prescribed by this section and in accordance with hand count procedures established by the secretary of state in the official instructions and procedures manual adopted pursuant to section 16-452." Id. § 8. But, the legislature left unchanged §16-602(B)(1)’s requirement that the hand count sample be selected from "[a]t least two percent of the precincts in that county, or two precincts, whichever is greater." See § 16-602(B)(1) (emphasis added). Thus, despite having adopted a new practice of utilizing voting centers, § 16-602’s hand count is arguably limited to precincts alone. Indeed, "voting centers" are not mentioned in § 16-602. Nevertheless, the 2019 EPM provides that voting centers are to be treated as precincts for the purpose of the hand count. See 2019 EPM at 216.

¶5 On September 16, 2020, Maricopa County announced its intent to use voting centers in the November 3 general election.² After the election, county officials conducted the hand count consistent with the 2019 EPM. Thus, shortly after the polls closed, the Republican, Democratic, and Libertarian party county chairs selected the voting centers for the hand count. The hand count commenced on November 7 and concluded on November 9, apparently without objection. The process did not reveal any material inaccuracies in the electronic vote count.

¶6 On November 12, purportedly unaware that the hand count had already been completed days earlier, Petitioners sued the Maricopa County Recorder and various other county officials (collectively the "County"), seeking a declaration that the 2019 EPM violated § 16-602(B) because it permitted a sampling of voting centers instead of precincts for the hand count. The complaint also requested mandamus relief directing the County to conduct the hand count based on precincts rather than voting centers. One day later, the Secretary and the Arizona Democratic Party filed separate motions to intervene as defendants, which the trial court granted. The County, the Secretary, and the Arizona Democratic Party each filed motions to dismiss Petitioners’ complaint. In the Secretary’s motion to dismiss, she argued that Petitioners’ requested mandamus relief was "impossible" absent an accompanying injunction.³ In response, Petitioners moved for a preliminary injunction, requesting that the court enjoin the certification of the election results pending the court’s resolution of Petitioners’ complaint on the merits. Despite Petitioners’ assertion that a precinct-based hand count could be conducted prior to the canvassing deadline, see A.R.S. §§ 16-602(I), - 642(A)(1)(b), Petitioners nonetheless requested that the court delay the official canvass if a court-ordered precinct hand count could not be completed before the canvassing deadline.

¶7 The trial court dismissed Petitioners’ complaint based upon several perceived procedural defects. The court also emphasized that it had not considered the merits of Petitioners’ substantive claim, writing that "[t]he question whether the Elections Procedures Manual correctly applies section 16-602(B) is not addressed, because the plaintiff did not make the showing necessary to justify that inquiry." Upon dismissal of Petitioners’ complaint, the Secretary moved for an award of attorney fees. The court, finding that Petitioners’ complaint was both groundless and made in "bad faith" under § 12-349(A)(1), awarded $18,237.59 in attorney fees against Petitioners, jointly and severally.

¶8 Petitioners appealed the trial court’s dismissal of their claim for declaratory relief—but not their mandamus relief claim— and the attorney fees award. Ariz. Republican Party v. Richer, 255 Ariz. 363, 365 ¶ 1, 370 ¶ 31, 532 P.3d 355, 357, 362 (App. 2023). The court of appeals affirmed the trial court’s rulings in all respects, and also awarded the Secretary’s appellate attorney fees pursuant to § 12-349. Id. at 375–76 ¶ 60, 532 P.3d at 367–68. Petitioners sought review in this Court. We accepted review of the trial court’s and the court of appeals’ attorney fees awards to clarify the interpretation and application of § 12-349, an issue of statewide importance. Dismissal of Petitioners’ complaint is not before us. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

[1] ¶9 The trial court awarded fees against Petitioners pursuant to § 12-349(A)(1), which...