1 BARBARA LAWALL

2 PIMA COUNTY ATTORNEY

CIVIL DIVISION
3 Daniel Jurkowitz, SBN 018428
Deputy County Attorney
4
32 North Stone Avenue, Suite 2100
5 Tucson, Arizona 85701
Telephone: 520-724-5700
6
Daniel.Jurkowitz@pcao.pima.gov
7 Attorney for Pima County Defendants

8
9 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
10 IN AND FOR THE COUNTY OF PIMA
PIMA COUNTY ATTORNEY

11
BARBARA LAWALL

CIVIL DIVISION

12 Benny White, a citizen and qualified No. C20193542

elector of Tucson, Arizona, et al.,
13
PIMA COUNTY DEFENDANTS’
14 Plaintiffs REPLY IN SUPPORT OF THEIR
vs. MOTION TO DISMISS
15
16 Roger Randolph, in his official capacity
as City Clerk of the City of Tucson, et al., Assigned to: Hon. D. Douglas Metcalf
17
18 Defendants (Civil - Election)
__________________________________
19 vs.
20
People’s Defense Committee, an
21 unincorporated association, et al.,
22 Real Parties in Interest
23
24 Pima County Defendants submit the following Reply in support of their
25 Motion to Dismiss.
26 ///

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 1 I. The Board of Supervisors and the Elections Director are not
2
responsible for the City’s ballots involving the contested initiative.

3 Contrary to the assertions in Plaintiffs’ Response (p.3), the Board of

4 Supervisors and the Elections Director have no responsibility for the City’s ballots in
5 the November Election involving the instant initiative. They are not responsible for
6 designing the ballot, proofing the ballot, printing the ballot, or tabulating the ballot.
7 All of those responsibilities lie with the City of Tucson. Accordingly, there is no
8 injunctive relief available against the Board of Supervisors or the Elections Director.
9 They are not necessary or proper parties and should, therefore, be dismissed as parties
10 to this action.
PIMA COUNTY ATTORNEY

11 II. The Pima County Recorder is not a necessary or proper party to

BARBARA LAWALL

this action.
CIVIL DIVISION

12
13 In response to Pima County Defendants’ Motion to Dismiss, Plaintiffs now
14 allege that they are indeed challenging, not just the validity of individual signatures,
15 but the Pima County Recorder’s certification. Plaintiffs’ Response, p.5, ln. 17.
16 However, the process for challenging the Recorder’s certification is pursuant to
17 A.R.S. § 19-121.03(B). Ariz. R. Civ. P. 8(a) requires Plaintiffs to state the basis for
18 the Court’s jurisdiction in the Complaint. This is not a case, as those cited by City
19 Defendants in their Response, where a plaintiff merely failed to cite a statute for
20 jurisdiction. According to the very face of the Complaint, this action is brought under
21 A.R.S. § 19-122(C). Plaintiffs further specifically cite the statutory basis for
22 jurisdiction for each count of their Complaint. None of these counts invoke A.R.S. §
23 19-121.03(B). Plaintiffs cannot now, in a response to a motion to dismiss, attempt to
24 amend their Complaint to include a claim under A.R.S. § 19-121.03(B). Any such
25 amendment is time barred. Id.
26 ///

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 1 Plaintiffs argue that they did challenge the Recorder’s certification in Counts 4
2 and 5 of their Complaint. What is actually challenged is the validation rate because
3 the City Clerk allegedly provided a faulty sample to the Recorder. Complaint, ¶¶ 67,
4 74. The decisions of the City Clerk are being challenged, not the decisions of the
5 Recorder. Thus, the factual allegations themselves are in line with A.R.S. § 19-
6 122(C), not A.R.S. § 19-121.03(B). However, as previously stated in the Motion to
7 Dismiss, if the Court orders the City Clerk to submit a new sample for verification to
8 the Recorder, the Recorder will perform her statutory duty under A.R.S. § 19-121.02
9 and verify the signatures in the new sample. Accordingly, the Pima County Recorder
10 is not a necessary or proper party to this action under A.R.S. § 19-122(C) and should
PIMA COUNTY ATTORNEY

11 be dismissed.
BARBARA LAWALL

CIVIL DIVISION

12
WHEREFORE, County Defendants request the following:
13
14 1. That they be dismissed as parties to this action.
15 2. Such other and further relief as the Court deems just and proper.
16
17 RESPECTFULLY SUBMITTED August 12, 2019.
18 BARBARA LAWALL,
19 PIMA COUNTY ATTORNEY

20 By: /s/ Daniel Jurkowitz

Daniel Jurkowitz,
21 Deputy County Attorney
22
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 1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 12, 2019, I electronically transmitted the
3 attached document to the Clerk’s Office using the TurboCourt System for filing and
4 transmittal of a Notice of Electronic Filing to the following TurboCourt registrants:
5
6 John G. Anderson, Esq.
Zachary L. Cohen, Esq.
7
Munger, Chadwick & Denker, P.L.C.
8 333 North Wilmot Road, Suite 300
Tucson, AZ 85711
9 JGAnderson@mcdplc.com
10 ZLCohen@mcdplc.com
Attorneys for Plaintiffs
PIMA COUNTY ATTORNEY

11
BARBARA LAWALL

CIVIL DIVISION

12 Dennis P. McLaughlin, Esq.

Jennifer Stash, Esq.
13
Tucson City Attorney’s Office
14 P.O. Box 27210
Tucson, AZ 85726
15 Dennis.McLaughlin@tucsonaz.gov
16 Attorneys for City Defendants

17 Paul Gattone, Esq.

301 South Convent Avenue
18
Tucson, AZ 85701
19 GattoneCivilRightsLaw@gmail.com
Attorney for Real Party in Interest
20
21 By: /s/ Katherine T. Syverson
22
23
24
25
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