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1

MUNGER, CHADWICK & DENKER, P.L.C.


2 333 North Wilmot Road, Suite 300
Tucson, Arizona 85711
3 Telephone: (520) 721-1900
Facsimile: (520) 747-1550
4
John G. Anderson
5 AZ Bar No. 030854; PCC No. 66616
JGAnderson mcd lc. com
6 Zachary L. Cohen
7
AZ Bar No. 033853; PCC No. 67039
ZLCohen mcd lc. com
8 Attorneys for the Plaintiffs
9 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
10 IN AND FORTHE COUNTY OF PIMA

11 BENNY WHITE, a citizen and qualified


elector ofTucson, Arizona; ANN HOLLIS,
12 a citizen and qualified elector of Tucson, CaseNo.:C20193542
Arizona; and MIKE EBERT, a citizen and
13
qualified elector of Tucson, Arizona,
14
Plaintiffs, PLAINTIFFS'OBJECTIONTO
15 THE CITY DEFENDANTS'FIRST
vs. AND SECOND REQUESTS FOR
16
JUDICIAL NOTICE
17 THE CYYY OF TUCSON, a municipality in
Arizona, ROGER RANDOLPH, in his
18
official capacity as City Clerk of the City of Assigned to: The Honorable D. Douglas
19 Tucson; F. ANN RODRIGUEZ, in her Metcalf, Division 16
official capacity as Pima County Recorder;
20 JONATHAN ROTHSCHILD, in his official
21 capacity as Mayor of the City of Tucson;
REGINA ROMERO, in her official capacity
22 as Councilman of the City of Tucson for
Ward One; PAUL CUNNINGHAM, in his
23
official capacity as Councilman of the City
24 of Tucson for Ward Two; PAUL
DURHAM, in his official capacity as
25 Councilman of the City of Tucson for Ward
26 Three; SHIRLEY SCOTT in her official
capacity as Councilman of the City of
27 Tucson for Ward Four; RICHARD
FIMBRES, in his official capacity as
28
1
Councilman of the City of Tucson for Ward
2
Five; STEVE KOZACHIK, in his official
capacity as Councilman of the City of
3 Tucson for Ward Six; BRAD NELSON, in
his official capacity as Elections Director of
4
the Pima County Elections Department,
5 ALLY MILLER, in her official capacity as
Pima County Supervisor of District 1;
6
RAMON VALDEZ, in his official capacity
7 as Pima County Supervisor of District 2;
SHARON BRONSON, in her official
8 capacity as Pima County Supervisor of
District 3; STEVE CHRISTY, in his official
9
capacity as Pima County Supervisor of
10 District 4; and RICHARD ELIAS, in his
official capacity as Pima County Supervisor
11 of District 5,
12
Defendants,
13
vs.
14

15 PEOPLE'S DEFENSE COMMITTEE, an


unincorporated association; MARION
16 CHUBON, a citizen and qualified elector of
17 Tucson, Arizona; STEVE DIAMOND, a
citizen and qualified elector of Tucson,
18 Arizona; and JOEL FEINMAN, a citizen
and qualified elector of Tucson, Arizona,
19
20 Real Parties in Interest.

21
The Plaintiffs, by and through undersigned counsel, hereby object to Defendants
22
CityofTucson, RogerRandolph,JonathanRothschild, ReginaRomero, PaulCunningham,
23
Paul Durham, Shirley Scott, Richard Fimbres, and Steve Kozachik's ("City Defendants")
24
First and Second Requests for Judicial Notice filed August 12, 2019, and August 13, 2019,
25
respectively. The City Defendants seek to introduce evidence that was not timely disclosed
26
to the Plaintiffs, and further seek to add to their arguments past the deadline for briefing
27
and after oral argument without leave of the Court. The Plaintiffs ask that the Court decline
28

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to take judicial notice of evidence that was not timely disclosed, and to discard any
2
argument basedon the same. In the alternative, if the Court does takejudicial notice ofthe
3
untimely disclosed evidence, the Plaintiffs ask that the Court consider the following
4
response to certain ofthe City Defendants' materials that were not timely disclosed. This
5
objection is supported by the attached memorandum of points and authorities, and the
6
entire record in this matter.
7
MEMORANDUM OF POINTS AND AUTHORITIES
8
I. BACKGROUND INFORMATION
9
On July 26, 2019, the Court ordered the City Defendants to file their responses to
10
the Plaintiffs' amended complaint by August 2, 2019. Seethe Court's July 26, 2019 minute
11
entry, p. 3. The Court also ordered that the parties disclose to the other parties any exhibits
12
the parties wished to use at the hearings. Id., p. 3-4. The City Defendants timely filed their
13
responsive brief on August 2, 2019. However, the City Defendants did not attach the
14
documents that they now askthe Court tojudicially notice to their responsive brief. Rather,
15
at 12:13pm on August 12, 2019-a roximatel two hours be ore oral ar ument- the
16
City Defendants disclosed the first half of the documents to the Plaintiffs for the first time
17
byfiling their First Request forJudicialNotice. Then, onAugust 13, 2019-a full day after
18
oral ar ument- the City Defendants disclosed the second half of the documents to the
19
Plaintiffs for the first time by filing their Second Request for Judicial Notice. By the City
20
Defendants' own admission in their instant requests, their counsel relied on the untimely
21
disclosed documents heavily at oral argument.
22
II. ARGUMENT
23
24 A. THE COURT SHOULD NOT TAKE JUDICIAL NOTICE OF NOR
CONSIDER THE EVIDENCE THE CITY DEFENDANTS DID NOT
25 TIMELY DISCLOSE.
26 Rule 26. 1(f)(2) ofthe Arizona Rules of Civil Procedure states, in relevant part, "[i]f
27 a party obtains or discovers information that it knows or reasonably should know is
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relevant to a hearing or deposition scheduled to occur in less than 30 days, the party must
2
disclose such information reasonabl in advance o the hearin or deposition" (emphasis
3
added). Further, Rule 37(c)(l) states, in relevant part, that "... a party who fails to timely
4
disclose information, a witness, or a document required by Rule 26. 1 may not use the
5
information, witness, or document as evidence at trial."
6
Here, the City Defendants did not meet their burden of timely disclosing evidence
7
in advance of the hearing during which they intended to rely upon it. The evidence was
8
either disclosed two hours before oral argument, or the dayafter the hearing. Because the
9
City Defendants didnot provide any ofthe evidence in a timely manner before the hearing,
10
in violation ofthe Arizona Rules of Civil Procedure and the Court's July 26, 2019, order,
11
both Requests for Judicial Notice should be denied, and any arguments that were basedon
12
such evidence should be discarded.
13
Thepurpose ofthe disclosure rules isto giveparties adequate notice to fully respond
14
to the opposing parties' arguments. Here, the City Defendants basedthe majority of their
15
oral argument on evidence that was not timely disclosed, and that the Plaintiffs therefore
16
could not fully respond to. For this reason, the Court should deny the City Defendants'
17
First and Second Requests for Judicial Notice and decline to consider any argument based
18
on the information disclosed for the first time with said requests.
19
B. THE FORM CREATED BY THE SECRETARY OF STATE IN 2014
20 FOR MUNICIPAL AND COUNTY INITIATIVES REQUIRES
21 SIGNERS TO PROVIDE THEIR STREET NAME AND NUMBER,
CITY OR TOWN, STATE, AND ZIP CODE.
22
If the Court for some reason decides to take JudicialNotice of the City Defendants'
23
untimely disclosed documents, and allows the City Defendants' arguments thereon to
24
stand, the Plaintiffs request that the Court also take Judicial Notice of the October 23, 2014,
25
revision to the sample petition form for statewide, county, city, or town initiatives,
26
generated by the Secretary of State on October 23, 2014, and attached hereto as Exhibit 1
27
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("Sample Petition Form").1
2
The Sample Petition Form clearly indicates that it is intended to be used for
3
statewide, county, city, or town initiatives. See Exhibit 1 ("We, the undersigned
4
respectfully demand that the following proposed law (or amendment to the constitution, or
5
other initiative measure), shallbe submitted to the qualified electors of the state ofArizona
6
(county, city ortown of for their approval orrejection atthenextregular
7
general election (or county, city ortown election)"). The form also provides spaces for the
8
"actual address, " "Arizonapost office address & zip code, " and"City or town (ifany)."
9
Onthebackside, or circulator side,the form asks forthe "residence address, " which
10
is distinct from the "actual address" requested on the signature side. To the right of
11
"residence address" are two lines to fill in a residence address, as it is common to list a
12
street name and number on a separate line from the city, state, and zip code. Thus, it is
13
apparent from the Sample Petition form that the Secretary of State interpreted the statutes
14
to require circulators to include their city or town, state, and zip code on their circulator
15
affidavits, asearly as October of 2014, well before the circulation of the petitions at issue
16
here.
17 C. NONE OF THE CIRCULATORS OF THE INSTANT PETITION ARE
18 REGISTERED WITH THE SECRETARY OF STATE.

19 Again, if the Court for some reason decides to take Judicial Notice of the City
20 Defendants' untimely disclosed documents, and allows the City Defendants' arguments
21
thereon to stand, the Plaintiffs request that the Court also take Judicial Notice of the

22 attachedreport ofallregistered out-of-state andpaidcirculators ofCity ofTucson petitions


23 from the 2018 election cycle to present, generated from the Arizona Secretary of State's
website, and attached hereto as Exhibit2.2
24

25 As the Court will recall, at oral argument undersigned counsel pointed out the fact

26 This form can be found online at:


htt s: web. archive. or web 20150317205243 htt : www. azsos. ov sites azsos. ov files
27 initiative etition. d .
The searc platform that produced this report can be found online at:
28 htt s: a s.azsos. ov'a s electioncirculator ortal ome Search.

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that Ms. Rachel Meller, a circulator ofthe instant initiative petitions whoresidesin Hawaii,
2
was not registered as an out of state petition circulator with the Tucson City Clerk. In
3
response, the City Defendants' counsel asserted that out-of-state petition circulators need
4
only register with the Secretary of State's office, and further that Rachel Meller is so
5
registered with the Secretary of State's office. The Plaintiffs still maintain that out-of-state
6
petition circulators must register with the Tucson City Clerk pursuant to A.R. S. §§ 19-118
7
and 19-141. However, even if the City Defendants were correct that out-of-state petition
8
circulators need only register with the Secretary of State's office, the attached report
9
demonstrates that no out-of-state petition signers registered to circulate the instant
10
initiative (Tucson Families Free and Together). Thus, contrary to the City Defendants'
11
assertion, neither Rachel Meller, Justine Shnitzle, nor any other potential out-of-state
12
circulators of the instant petition, registered with the Secretary of State.
13
III. CONCLUSION
14
For the foregoing reasons, the Plaintiffs object to the Court taking Judicial Notice
15
of, or otherwise considering, the untimely disclosed evidence submitted by the City
16
Defendants, and further request that the Court not consider any arguments based thereon.
17
In the alternative, the Plaintiffs ask that the Court take judicial notice of the attached
18
exhibits and consider the Plaintiffs' rebuttal of the new evidence attached to the City
19
Defendants' requests.
20
RESPECTFULLYSUBMITTEDthisj^^y ofAugust,2019.
21

22

23 MUNGER CHADWICK,
John G. Anderson
24
Zachary L. Cohen
25 Attorneys for Plaintiffs

26

27
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Original of the foregoing filed with the Clerk
2 Of the Court and a copy hand-delivered on
August 14, 2019, to:
3
Honorable D. Douglas Metcalf
4
Division 16
5 Pima County Superior Courts Building
110 West Congress
6 Tucson, AZ 85701
7
Copy of the foregoing emailed and mailed on
8 August 14, 2019, to:
9
Daniel Jurkowitz
10 Deputy County Attorney
Pima County Attorney Civil Division
11 32 North Stone Ave., Suite 2100
Tucson, AZ 85701
12
Daniel.Jurkowitz cao. ima. ov
13
Dennis P. McLaughlin
14 Jennifer Stash
15 Tucson City Attorney's Office
P. O. Box 27120
16 Tucson, AZ 85726-7210
Dennis. McLau hlin tucsonaz. ov
17
Jennifer. stash tucsonaz. ov
18
Paul Gattone
19 301 South Convent Avenue
20 Tucson, AZ 85701
GattoneCivilRi htsLaw mail.com
21
22
By:
23

24

25

26

27
28
It is unlawful to sign this petition before it has a serial number.
Initiative Description PAID CIRCULATOR" " VOLUNTEER"
(Insert a description of no more than one hundred words ofthe principal provisions ofthe proposed measure or constitutional amendment.)

Notice: This is onlya description ofthe proposed measure (orconstitutional amendment) prepared bythesponsor ofthe measure. It maynot includeevery provision contained inthemeasure. Beforesigning, makesurethetitle andtextofthe measure areattached.
Youhavetherightto readorexaminethetitle andtext beforesigning. ..... . ------, ^---. -...-...--......-... -. -. -.-. --.».....», ..."."""."...».,., "", "."". ", ",<, ,.,T.,u. oa, <, o,uu,ou.
InitiativeMeasureto be Submitted Directlyto Electors

We,theundersigned, citizensandqualifiedelectorsofthestateofArizona,respectfullydemandthatthefollowingproposedlaw(oramendmenttotheconstitution, orotherinitiativemeasure),shallbesubmittedtothequalifiedelectorsofthestateofArizona(county,city


°Ltow"-of-. -.... __. _ . ^.. .. ..... .. ta their^Prcral orreiediond 1henedre9"larseneralelection (orcounty, cityortownelection) andeachforhimselfsays: I havepersonallysignedthispedtionwrth
other petition forthesame measure. I am a qualified elector ofthestate ofArizona, county of (orcityortown andcounty of, asthecase maybe).
.
Warning
K is a class 1 misdemeanor for any person to knowingly sign an initiative or referendum petition with a name other than hisown, except in a circumstance where he signsfor a person, inthe presence ofand atthe specffi
signinghisownnamebecauseofphysicalinfirmity,ortoknowinglysignhisnamemorethanonceforthesamemeasure,ortoknowinglysignsuchpetitionwhenheisnota qualifiedelector."
Name Arizonapostoffice
Si nature first and last name rint Actual address street S no. and if no street address, describe residence location address &zi code C' or town if an Date ' ned

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

Secretaiy of State Thevalidity ofsignatures on thissheet must besworn to bythecirculator beforea notary public ontheform appearing onthe backofthissheet.
Revised 10/23/2014
Number
Instructions for Circulators
1. All petitions shall be signed by circulator.
2. Paidcirculators,whethera residentofArizonaoranotherstate,circulatingfora statewideinitiativeshallregisterwiththesecretaryofstatebeforecirculatingpetitions.
3. Circulator isnot requiredto bea resident ofthisstate but otherwise must bequalified to registerto vote inthisstate and, ifnota resident ofthisstate, shall register as a
circulator with the secretary of state.
4. Circulator's name shall be typed or printed under the circulator's signature.
5. Circulator's actual residence address or, Ifno street address, a description of residence location shall be included on the petition.

Affidavit of Circulator
State of Arizona

County of
(Wherenotarized)

I, , a personwhois not requiredto bea residentofthisstatebutwhois otherwisequalifiedto registertovoteinthecountyof


(Print Name)

inthestateofArizonaat all times during my circulation of this petition sheet, and under the penalty of a class 1 misdemeanor, depose and say that subject to § 19-115, Arizona Revised Statutes, each
Individualprintedtheindividual's ownnameandaddress andsignedthissheetoftheforegoing petition Inmypresence onthedateindicatedandI believethateachsigner's nameand residenceaddressorpostofficeaddressarecorrectly
statedandthateachsignerisa qualifiedelectorofthestateofArizona(orinthecaseofa city,townorcountymeasure, ofthecity,townorcountyaffectedbythemeasureproposedtobeinitiatedorreferredtothepeople)andthatatall
times duringcirculationofthissignaturesheeta copyofthetitle andtextwasattachedto thesignaturesheet.
(Signature of affiant)

(Residence address, street and number of affiant, or


if no street address, a description of residence location)

Subscribed and sworn to before me on


(Date)

NotaryPublic

, Arizona.

My commission expires on
(Date)
SecretaryofState Number
Revised 10/23/2014
I
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