IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

YOLANDA PARKER;

JOHN SPRINGER JR.;

AND CHRIS ANDERSON,

QUALIFIED ELECTORS,

Plaintiffs/Appellants/Cross-Appellees,

v.

CITY OF TUCSON;

ROGER W. RANDOLPH,

IN HIS CAPACITY AS CITY CLERK FOR THE CITY OF TUCSON;

F. ANN RODRIGUEZ,

IN HER OFFICIAL CAPACITY AS PIMA COUNTY RECORDER;

JONATHAN ROTHSCHILD,

IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF TUCSON;

TUCSON CITY COUNCIL, A GOVERNING BODY;

REGINA ROMERO,

IN HER OFFICIAL CAPACITY AS MEMBER OF THE 

TUCSON CITY COUNCIL;

PAUL CUNNINGHAM,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

TUCSON CITY COUNCIL;

KARIN UHLICH,

IN HER OFFICIAL CAPACITY AS MEMBER OF THE 

TUCSON CITY COUNCIL;

SHIRLEY SCOTT,

IN HER OFFICIAL CAPACITY AS MEMBER OF THE 

TUCSON CITY COUNCIL;

RICHARD FIMBRES,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

TUCSON CITY COUNCIL;

STEVE KOZACHIK,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

TUCSON CITY COUNCIL;

PIMA COUNTY BOARD OF SUPERVISORS,

A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA;

ALLY MILLER,
PARKER v. CITY OF TUCSON

Opinion of the Court

2

IN HER OFFICIAL CAPACITY AS MEMBER OF THE

PIMA COUNTY BOARD OF SUPERVISORS;

RAMON VALADEZ,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

PIMA COUNTY BOARD OF SUPERVISORS;

SHARON BRONSON,

IN HER OFFICIAL CAPACITY AS MEMBER OF THE

PIMA COUNTY BOARD OF SUPERVISORS;

RAY CARROLL,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

PIMA COUNTY BOARD OF SUPERVISORS;

RICHARD ELIAS,

IN HIS OFFICIAL CAPACITY AS MEMBER OF THE

PIMA COUNTY BOARD OF SUPERVISORS,

Defendants/Appellees.

COMMITTEE FOR SUSTAINABLE RETIREMENT

IN SUPPORT OF INITIATIVE PETITION 2013-I004

AND IN SUPPORT OF THE BALLOT MEASURE,

Real Party in Interest/Appellee/Cross-Appellant.

NO. 2 CA-CV 2013-0120

Filed November 19, 2013

Appeal from the Superior Court in Pima County

No. C20134029

The Honorable James E. Marner, Judge

REVERSED AND REMANDED
PARKER v. CITY OF TUCSON

Opinion of the Court

3

COUNSEL

Coppersmith Schermer & Brockelman PLC, Phoenix

By Andrew S. Gordon, Roopali H. Desai, John C. Kelly, 

and Melissa A. Soliz

Counsel for Plaintiffs/Appellants/Cross-Appellees

Gammage & Burnham P.L.L.C., Phoenix

By Lisa T. Hauser and Christopher L. Hering

Counsel for Real Party in Interest/Appellee/Cross-Appellant

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in which 

Chief Judge Howard and Judge Kelly concurred.

V Á S Q U E Z, Presiding Judge:

¶1 In this expedited election appeal, Yolanda Parker, John 

Springer Jr., and Chris Anderson (jointly, the Employees)1 challenge 

the trial court’s September 3, 2013 order denying their request for 

injunctive and mandamus relief, entering judgment in favor of the 

Committee for Sustainable Retirement in Support of Initiative Petition 

2013-I004 and in Support of the Ballot Measure (the Committee) and 

numerous government defendants,2 and permitting the City of Tucson 

Initiative Petition 2013-I004 (the Initiative) to be placed on the 

 

1Although Parker and Anderson are “currently employed by the 

City of Tucson,” Springer is not.

2The Employees’ complaint also named as defendants the City of 

Tucson, the Mayor and City Clerk of the City of Tucson, the Pima 

County Recorder, and members of the Tucson City Council and Pima 

County Board of Supervisors. Those entities and individuals are not 

parties to this appeal.
PARKER v. CITY OF TUCSON

Opinion of the Court

4

November 5, 2013 ballot. Although the trial court invalidated some of 

the signatures obtained in support of the Initiative, it nevertheless 

found there were a sufficient number of valid signatures. In its crossappeal, the Committee argues the court erred by disqualifying certain 

petition sheets and invalidating the corresponding signatures, 

permitting the Employees to amend their pleadings during trial, and 

denying the Committee’s motion to dismiss the complaint as untimely.

¶2 By order dated September 12, 2013, this court reversed the 

judgment and remanded the case to the trial court with directions to 

enter an injunction pursuant to A.R.S. § 19-122(C) to prevent the 

Tucson City Clerk from “certifying or printing” the Initiative on the 

ballot, with a written opinion to follow.3 This is that opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 The Committee is an unincorporated association and 

political committee organized for the purpose of promoting and 

sponsoring the Initiative, which sought to amend the Tucson City 

Charter to eliminate the City’s non-public safety employee pension 

system. See A.R.S. § 16-902.01 (providing requirements for registration 

of political committees). The Committee filed a statement of 

organization with the City, took out initiative petitions, and collected 

signatures that were submitted to the Tucson City Clerk and 

 

3In its August 16, 2013 order, the trial court found certain 

petition sheets and signatures invalid and enjoined the defendants 

from placing the Initiative on the ballot until the parties performed 

various tasks and satisfied certain conditions set forth in the order. The 

Committee appealed that ruling and the Employees filed a notice of 

cross-appeal. This court stayed that appeal and revested jurisdiction in 

the trial court so that it could enter a final order in the case, which it 

did on September 3; the current appeal and cross-appeal have been 

taken from that ruling. Pursuant to the parties’ stipulation, we 

dismissed the initial cross-appeal on August 28 and dismissed the 

initial appeal as moot on September 18.
PARKER v. CITY OF TUCSON

Opinion of the Court

5

transmitted to the Pima County Recorder for verification, in order to 

place the Initiative on the City’s November 5, 2013 ballot.4

¶4 The Committee hired political consulting firm 

Zimmerman Public Affairs, owned by Carol and Peter Zimmerman, to 

direct and monitor the campaign to qualify the Initiative for the ballot, 

hire petition circulators, and obtain petition signatures. On July 2, 

2013, the Committee submitted to the City Clerk 1,857 petition 

signature sheets containing 23,364 signatures; 12,730 valid signatures 

were required to place the Initiative on the ballot. The deadline for 

printing ballots for the November 2013 election was September 16, 

2013. The City Clerk issued an “Interim Facially Sufficient Petition 

Receipt” to the Committee, stating 22,693 signatures were “eligible for 

verification” under A.R.S. § 19-121.01(A), and transmitted the 

signatures to the Pima County Recorder for the requisite five-percent 

random sample. See § 19-121.01(B), (C). On July 16, 2013, the Pima 

County Recorder issued a certification stating it had received 1,135 

 

4The provisions of A.R.S. § 19-101 and related statutes, including 

A.R.S. § 19-121.01(A), “shall apply to the legislation of cities, . . . [and] 

duties required of the secretary of state as to state legislation shall be 

performed in connection with such legislation by the city or town clerk 

. . . [or] officer in charge of elections.” A.R.S. § 19-141(A). Section 19-

121.01(A) provides that the city clerk has twenty business days to 

complete a facial review of the petitions submitted to determine the 

number of petition signatures “eligible for verification.” Section 19-

121.01(A)(1) requires the removal of petition sheets with a missing or 

incomplete circulator affidavit or if circulated by an individual 

prohibited from circulating petitions based on conviction of petition 

signature fraud. If a petition contains a missing signature, address, or 

date, § 19-121.01(A)(3) requires the removal of signatures. Section 19-

121.01(A)(6) requires the city clerk to determine and issue a receipt for 

the number of signatures deemed “eligible for verification.” And, § 19-

121.01(B) and (C) prescribe the process through which selection is 

made at random five percent of the total signatures and copies of 

petitions bearing those signatures are transmitted to the county 

recorder for verification. Finally, A.R.S. § 19-121.02 prescribes the 

review process and deadline for the county recorder.
PARKER v. CITY OF TUCSON

Opinion of the Court

6

signatures for verification and “was able to verify 893 signatures versus 

242 that were invalidated.” That same day, the City Clerk issued a 

certificate stating the Initiative had sufficient signatures to qualify for 

the ballot.

¶5 On July 22, 2013, the Employees filed a complaint 

pursuant to § 19-122(C), an expedited challenge to the sufficiency of the 

Initiative, requesting an immediate trial and seeking injunctive and 

mandamus relief. They alleged certain petition sheets and individual 

signatures were invalid because nine of the circulators were ineligible 

to circulate petitions. They maintained that six of the circulators had 

prior felony convictions and were ineligible to register to vote and 

three were not registered as out-of-state petition circulators. The 

Employees also asserted some of the petitions were defective because 

they had been accompanied by incomplete circulator affidavits and 

that various individual signatures were invalid because they were 

incomplete or otherwise defective.

¶6 The trial court held an expedited evidentiary hearing 

pursuant to § 19-122(C) on August 2 and 6. In its August 16 ruling, the 

court entered preliminary findings of fact and conclusions of law. The 

court found that petitions circulated and signatures obtained by two of 

the circulators were defective because the circulators were convicted 

felons. It therefore concluded the 1,196 signatures those circulators had 

obtained were invalid. The court also found that 4,456 signatures were 

invalid because the signatures themselves were defective, either 

because they had been obtained by out-of-state circulators or because 

the accompanying circulator affidavit was false. The court ordered the 

City Clerk to remove the disqualified signatures, prepare a new 

random sample, and recalculate the projected number of valid 

signatures; it temporarily enjoined the City Clerk from placing the 

Initiative on the ballot.

¶7 Based on the new random sample and its having found 

157 of the 853 signatures invalid, the Pima County Recorder calculated 

a new error rate of 18.4 percent. On September 3, the City Clerk issued 

a new certification after concluding the Initiative qualified for the ballot 

by 1,047 signatures. That same day, the trial court entered a final order 

that incorporated its August 16 order and took into account the City 
PARKER v. CITY OF TUCSON

Opinion of the Court

7

Clerk’s new tabulations and certification. The court invalidated 5,652 

signatures: 4,857 signatures that had been collected by ineligible 

circulators, 794 signatures from defective petition sheets, and one 

signature that was defective on another specified sheet. Based on this 

determination and the error rate provided by the Pima County 

Recorder, the court found there were sufficient signatures to place the 

Initiative on the November 5, 2013 election ballot. This expedited 

appeal by the Employees and the Committee’s cross-appeal followed. 

See Ariz. R. Civ. App. P. 8.1; § 19-122(C).

DISCUSSION

A. The Employees’ Appeal

1. Eligibility of Convicted Felons to Circulate Petitions

¶8 The Employees alleged in their complaint that Thomas 

Coombes, Daryl Oberg, Josephine Leonardi, James Greer, Mark 

Klepacki, and Gary Robinson were convicted felons who were not 

qualified to serve as petition circulators based on the requirements of 

A.R.S. § 19-112(D) because they were ineligible to register to vote 

according to the criteria established by the Arizona legislature.

Specifically, they alleged the civil rights of these individuals had been 

suspended as a result of their convictions and had not been restored.

The Committee stipulated Klepacki had been convicted of felonies in 

Florida and that his civil rights had not been restored. The court found 

there was clear and convincing evidence Greer also was not qualified 

to circulate petitions as a consequence of his felony convictions. Thus, 

the court found the signatures Greer and Klepacki had obtained were 

invalid.

¶9 The trial court found there was no evidence establishing 

Coombes, Oberg, or Leonardi had applied for a restoration of the civil 

rights suspended because of their felony convictions. Nevertheless, it 

determined all three were eligible to vote in the states where they had 

been convicted of felonies—California, Ohio, and Illinois—and, 

consequently, they were eligible to serve as circulators in Arizona.
PARKER v. CITY OF TUCSON

Opinion of the Court

8

¶10 The Employees argue on appeal that eligibility to vote in 

another state is insufficient and that the three individuals were not 

qualified to serve as circulators in Arizona because their civil rights 

had not been fully restored. The Employees maintain that, had the trial 

court correctly invalidated the signatures collected by these 

individuals, the court necessarily would have found the Committee 

had failed to submit the requisite 12,730 signatures to place the 

Initiative on the November 2013 ballot. The Employees also assert that,

in addition to “confusi[ng] . . . the restoration of civil rights and the 

restoration of voting rights,” the court erred by (1) “fail[ing] to shift the 

burden of production to [the Committee] to prove restoration of civil 

rights once [the Employees] demonstrated that Coombes, Oberg, and 

Leonardi were convicted felons,” and, (2) requiring the Employees to 

meet that burden with clear and convincing evidence rather than a 

preponderance of the evidence.

¶11 We review a trial court’s decision on a request for 

injunctive or mandamus relief under § 19-122 for an abuse of 

discretion. Harris v. City of Bisbee, 219 Ariz. 36, ¶ 13, 192 P.3d 162, 165 

(App. 2008). An abuse of discretion includes an error of law. City of 

Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 58, 181 P.3d 219, 

236 (App. 2008). We review de novo the legal question of whether the 

court applied the proper burden of proof. Am. Pepper Supply Co. v. Fed. 

Ins. Co., 208 Ariz. 307, ¶ 8, 93 P.3d 507, 509 (2004). And when, as here, 

an issue involves the interpretation of a statute, it is a question of law 

we review de novo. Harris, 219 Ariz. 36, ¶ 13, 192 P.3d at 165-66; see 

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

649, 652 (1998); State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, 

¶ 5, 3 P.3d 1040, 1042 (App. 1999).

¶12 Our primary purpose in interpreting a statute is to give 

effect to the legislature’s intent. See Sierra Tucson, Inc. v. Lee, 230 Ariz. 

255, ¶ 9, 282 P.3d 1275, 1278 (App. 2012). Because the plain language of 

a statute is the best reflection of that intent, when a statute is clear and 

unambiguous we need look no further than the statute’s terms to 

determine its meaning and do not employ other principles of statutory 

construction. Id.; see also In re Wilputte S., 209 Ariz. 318, ¶ 10, 100 P.3d 

929, 931 (App. 2004). And, “we assume that when the legislature uses 

different language within a statutory scheme, it does so with the intent 
PARKER v. CITY OF TUCSON

Opinion of the Court

9

of ascribing different meanings and consequences to that language.” 

Comm. for Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 247, ¶ 8, 

141 P.3d 422, 424-25 (App. 2006).

¶13 The same principles of construction apply when 

interpreting provisions of Arizona’s constitution. Thus, our goal is “to 

effectuate the intent of those who framed the provision.” Jett v. City of 

Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). If the language of a 

provision of the constitution is “unambiguous, we generally must 

follow the text as written.” Tumacacori Mission Land Dev., Ltd. v. Union 

Pac. R.R. Co., 228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App. 2011). When 

the words are plain and clear, “‘judicial construction is neither 

necessary nor proper,’ and we will not consider any extrinsic matter 

supporting a construction that would vary the provision’s apparent 

meaning.” Id., quoting Jett, 180 Ariz. at 119, 882 P.2d at 430.

¶14 In addition to these basic principles of construction and 

review, we are equally mindful of special principles regarding the 

interpretation and application of the portions of the Arizona 

Constitution and statutes pertaining to initiatives and the initiative 

process. See Ariz. Const. art. IV, pt. 1, § 1(1), (2). “Arizona has a strong 

policy [of] supporting the people’s exercise of” the power granted to 

them by the constitution “to propose laws through initiative process.” 

Pedersen v. Bennett, 230 Ariz. 556, ¶ 7, 288 P.3d 760, 762 (2012). Thus, 

“courts liberally construe initiative requirements and do not interfere 

with the people’s right to initiate laws ‘unless the Constitution 

expressly and explicitly makes any departure [from initiative filing 

requirements] fatal.’” Id., quoting Kromko v. Superior Court, 168 Ariz. 51, 

58, 811 P.2d 12, 19 (1991) (alteration in Pedersen).

¶15 Because of these underlying policies, “once initiative 

petitions are circulated, signed and filed, they are presumed valid.” 

Harris v. Purcell, 193 Ariz. 409, ¶ 15, 973 P.2d 1166, 1169 (1998). Thus, 

although § 19-122(C) expressly authorizes a citizen to bring an action 

challenging the legal sufficiency of an initiative petition and/or 

signatures, in interpreting the requirements imposed by the 

constitution or a statute, “courts must exercise restraint before 

imposing unreasonable restrictions on the people’s legislative 

authority.” Kromko, 168 Ariz. at 57, 811 P.2d at 18. “The term ‘legal 
PARKER v. CITY OF TUCSON

Opinion of the Court

10

sufficiency,’ as used in § 19-122(C), requires substantial, not necessarily 

technical, compliance with the requirements of the law.” Id. at 58, 811 

P.2d at 19 (citations omitted); see also Feldmeier v. Watson, 211 Ariz. 444, 

¶ 14, 123 P.3d 180, 183 (2005) (test for initiatives, unlike referenda, is 

whether petition substantially complies with requirements of 

constitution and statute). “Courts may remove a measure from the 

ballot only ‘when it appears affirmatively the constitutional and 

statutory rules in regard to the manner in which initiative . . . petitions 

should be submitted have been so far violated that there has been no 

substantial compliance therewith . . . .’” Kromko, 168 Ariz. at 58, 811 

P.2d at 19, quoting Iman v. Bolin, 98 Ariz. 358, 366, 404 P.2d 705, 710

(1965) (alterations in Kromko). With all of these principles in mind, we 

now turn to the statutes and provisions of the constitution implicated 

here.

¶16 Section 19-114, A.R.S., which disqualifies certain 

individuals from serving as petition circulators, provides in subsection 

(A), “no person other than a person who is qualified to register to vote 

pursuant to [A.R.S.] § 16-101 may circulate an initiative or referendum 

petition and all signatures verified by any such person shall be void 

and shall not be counted in determining the legal sufficiency of the 

petition.” See also Tucson City Code §§ 12-54(b), 12-58(a)(1). Section 16-

101 sets forth the criteria that qualify a person to register to vote, 

providing in subsection (A)(5) that a person is qualified if he or she 

“[h]as not been convicted of . . . a felony, unless restored to civil 

rights.” The parallel provision in the Arizona Constitution expressly 

disqualifies certain persons from serving as an elector, stating, “nor 

shall any person convicted of . . . [a] felony, be qualified to vote at any 

election unless restored to civil rights.” Ariz. Const. art. VII, § 2(C). “A 

person is presumed to be properly registered to vote [in Arizona] on 

completion of a registration form as prescribed by [A.R.S.] § 16-152,”

but that presumption may be rebutted by clear and convincing 

evidence. A.R.S. § 16-121.01.

¶17 Based on the plain language of § 16-101(A)(5), and article 

VII, § 2(C) of the Arizona Constitution, a person is not qualified to 

register to vote in Arizona if the person has been convicted of a felony, 

unless his or her civil rights have been restored. See Rocking K Holdings, 

Ltd. v. Pima Cnty., 170 Ariz. 134, 136, 822 P.2d 487, 489 (App. 1991). 
PARKER v. CITY OF TUCSON

Opinion of the Court

11

Because there is nothing ambiguous or unclear about the statute or the 

constitution, we “must follow the text as written.” Canon Sch. Dist. No. 

50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994); see 

also Jett, 180 Ariz. at 119, 882 P.2d at 430 (requiring court to follow plain 

language of constitutional provisions unless terms ambiguous or 

unclear). Section 19-114(A) specifies the person must be “qualified to 

register to vote pursuant to § 16-101.” And § 16-101(A)(5), like article 

VII, § 2(C) of the Arizona Constitution, could not be more clear: a 

person who has been convicted of a felony is not qualified to register to 

vote unless that person’s civil rights have been restored.

¶18 The Committee relies on A.R.S. § 13-912(A) in arguing a 

literal application of the clear terms in § 16-101 would result in an 

absurdity. Section 13-912 applies to first-time felony offenders and 

provides for the automatic restoration of any civil rights “lost or 

suspended by the conviction,” except the right to possess a gun or 

firearm upon completion of the sentence or probation and payment of

any outstanding fines or restitution.5 See Rocking K Holdings, Ltd., 170 

Ariz. at 136, 822 P.2d at 489 (§ 13-912 provides for automatic 

restoration of rights of first-time felony offenders but inapplicable 

when person convicted of more than one felony, even if convictions on 

same occasion; other convicted felons must apply for restoration of 

rights before eligible to circulate referendum petition). Section 13-

904(A), A.R.S., specifies the rights that are suspended upon conviction 

of a felony, of which the right to vote is only one: the right to vote, the 

right to hold public office of trust or profit, the right to serve as a juror, 

and the right to possess a gun or other firearm.

¶19 The Committee contends that construing § 19-114(A) and 

§ 16-101(A)(5) to mean restoration of all civil rights instead of 

restoration of the right to vote only is contrary to the most “sensibl[e]”

interpretation of these statutes when they are considered together and 

in context and “utterly eviscerates and defeats the Legislature’s goal of 

automatically restoring a first-time felon’s right to vote,” as expressed 

 

5In order to regain the right to possess a gun or firearm, a 

convicted felon must apply for such restoration in the superior court in 

the county where the conviction occurred. See A.R.S. §§ 13-905, 13-906.
PARKER v. CITY OF TUCSON

Opinion of the Court

12

in § 13-912(A). The Committee asks this court to disregard the plain 

language of both § 19-114(A) and § 16-101(A)(5), as well as the Arizona 

Constitution. The Committee argues, too, that although the restoration 

statutes vary from state to state, if we were to construe Arizona’s 

statutes in a manner consistent with its plain language, a person might 

be eligible to register to vote in the state where his or her conviction 

occurred but would be “disenfranchised in Arizona,” a result the 

Committee characterizes as “absurd.”6

¶20 We find these arguments unpersuasive. As we stated

previously, when the legislature’s intent is reflected in plain and 

unambiguous language, we need not and, indeed, should not employ 

other principles of construction to determine the legislature’s intent. 

See Winterbottom v. Ronan, 227 Ariz. 364, ¶ 5, 258 P.3d 182, 183-84 (App. 

2011). We will not rewrite statutes to effectuate a meaning different 

than the one the legislature intended. See State v. Gonzalez, 216 Ariz. 11, 

¶ 10, 162 P.3d 650, 653 (App. 2007); see also State v. Tarango, 185 Ariz. 

208, 210-11, 914 P.2d 1300, 1302-03 (1996) (courts must follow plain, 

unambiguous text and may not “rewrite statutes”); State v. Patchin, 125 

Ariz. 501, 502, 610 P.2d 1062, 1063 (App. 1980) (“[T]his court is not at 

liberty to rewrite the statute under the guise of judicial 

interpretation.”). The Committee is correct that we will not apply clear 

terms of a statute literally if the result would be absurd. See

Winterbottom, 227 Ariz. 364, ¶ 5, 258 P.3d at 183 (“If the language of 

those provisions is clear, [it is] the best indicator of the authors’ intent 

and as a matter of judicial restraint we ‘must apply it without resorting 

to other methods of statutory interpretation, unless application of the 

plain meaning would lead to impossible or absurd results.’”), quoting 

N. Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, ¶ 9, 93 

P.3d 501, 503 (2004) (internal citation omitted); Reeves v. Barlow, 227 

Ariz. 38, ¶ 12, 251 P.3d 417, 420 (App. 2011) (clear and unambiguous

language of statute normally conclusive evidence of meaning unless 

there is express evidence of contrary legislative intent or application of 

 

6Contrary to the Committee’s suggestion, this case does not 

involve the issue whether the particular convicted felons are being 

disenfranchised from eligibility to vote. Rather, here, we address only 

whether they are qualified under Arizona law to circulate petitions.
PARKER v. CITY OF TUCSON

Opinion of the Court

13

such language results in impossible or absurd consequences). But we 

disagree with the Committee’s contention that the results of applying 

the terms “civil rights” literally to mean all civil rights, not just the 

right to register to vote, would be absurd or nonsensical.

¶21 The Arizona legislature has imposed upon convicted 

felons a standard for the restoration of the felon’s civil rights that is, 

perhaps, more stringent than the standard imposed by other states in 

requiring a convicted felon to have all civil rights restored before the 

person may be eligible to register to vote and, consequently, eligible to 

serve as a petition circulator. See Jean Chung, The Sentencing Project,

Felony Disenfranchisement: A Primer (June 2013), available at

http://sentencingproject.org/doc/publications/fd_Felony%20Disen

franchisement%20Primer.pdf. It is the legislature’s prerogative to 

impose strict requirements for petition circulators. See generally Arizona 

v. Inter Tribal Council of Ariz., Inc., ___ U.S. ___, ___, 133 S. Ct. 2247, 

2257-58 (2013) (recognizing states have power to establish voting 

requirements). And the legislature’s decision—as clearly evinced by 

the plain language of the relevant statutes—cannot reasonably be 

characterized as absurd.

¶22 Section 13-912(A), by its plain language, applies only to 

first-time felony offenders whose convictions occurred in Arizona and, 

with the exception of the right to possess firearms, “restore[s] any civil 

rights” to those offenders. That the legislature has provided an 

automatic restoration of certain civil rights for first-time felony

offenders under Arizona law does not make § 13-912(A) incompatible 

with § 16-101(A)(5).7 Rather, it merely provides that those convicted of 

multiple felonies in Arizona or whose convictions occurred in other 

jurisdictions will not benefit from the narrow provision the legislature 

has created for Arizona first-time offenders.

 

7We need not decide today whether the legislature’s requirement 

that even first-time felony offenders must apply separately for the 

restoration of the right to possess a gun or firearm renders the person 

ineligible to register to vote in Arizona; that is not the issue in this case.
PARKER v. CITY OF TUCSON

Opinion of the Court

14

¶23 Thus, we hold that in order to circulate initiative petitions 

in Arizona, the circulator’s civil rights must have been restored by the 

state in which he or she was convicted.8 Cf. State v. Prince, 226 Ariz. 

516, ¶ 40, 250 P.3d 1145, 1159 (2011) (“A juror convicted of an out-ofstate felony whose civil rights have not been restored is disqualified 

from jury service by [A.R.S.] § 21-201(3).”).

2. Employees’ Burden of Proof

¶24 The trial court preliminarily determined that the 

Employees had the burden to prove by clear and convincing evidence 

that the petition sheets and signatures were legally insufficient. See 

Blaine v. McSpadden, 111 Ariz. 147, 149, 526 P.2d 390, 392 (1974). The 

Employees contend they were only required to prove by a 

preponderance of the evidence that Coombes, Oberg, and Leonardi 

were not qualified to serve as petition circulators. They argue the 

heightened standard in the election context only applies, pursuant to 

§ 16-121.01, to rebut the presumption that a person who has completed 

the registration form is properly registered to vote in Arizona. We 

need not address this issue or the related question whether the court 

erred in not shifting the burden to the Committee to establish the 

circulators’ civil rights had been restored after the Employees 

presented prima facie evidence that they had been convicted of a 

felony, resulting in the suspension of those rights, and the absence of 

evidence that those rights had been restored. Even assuming, without 

deciding, the heightened standard of proof applies and the Employees 

must demonstrate the circulators’ civil rights had not been restored, 

they sustained that burden. The Employees presented clear and 

convincing evidence that Coombes and Oberg had been convicted of 

 

8We need not resolve the question whether a person with a 

felony conviction in another state whose civil rights had been fully 

restored except the right to own or possess weapons would be eligible 

to serve as a petition circulator. Although the Committee insists the 

only right that must be restored is the right to vote, it agrees that the 

restoration of rights is determined by the law of the jurisdiction in 

which the conviction occurred and the rights consequently were 

suspended.
PARKER v. CITY OF TUCSON

Opinion of the Court

15

felonies and, although their rights to register to vote under the law of 

the states where their convictions occurred were restored by operation 

of law, the Employees demonstrated their remaining civil rights had 

not been fully restored.

9

3. Eligibility of Circulator Coombes

¶25 The record establishes and the trial court found that

Thomas Coombes had been convicted of “two drug-related felonies in 

Orange County, California on July 25, 2000.”10 The court further found 

Coombes had been sentenced to a sixteen-month prison term; the 

Orange County Superior Court docket reflected the case had been

closed, “at the latest, on March 9, 2008”; and Coombes subsequently 

had been convicted of misdemeanors. The court concluded that, based

 

9We further observe that the Committee plainly had superior 

access to information about the restoration of the circulators’ civil 

rights and chose to produce no such evidence. As the Employees point 

out, there is support for the notion that a party with superior 

knowledge about and access to evidence regarding certain facts should 

bear the burden of producing that evidence, rather than charging the 

adverse party with the task of proving a negative. See, e.g., Woerth v. 

City of Flagstaff, 167 Ariz. 412, 419, 808 P.2d 297, 304 (App. 1990).

10The Committee asserts in its answering brief that it objected to 

the use of uncertified court documents to establish these prior felony 

convictions. But the Committee does not meaningfully develop an 

argument in its answering brief or opening brief of its cross-appeal that 

the admission of this evidence was error. Thus, the argument is 

waived on appeal, and we view the evidence as properly admitted and, 

consequently, the fact of the convictions essentially undisputed. See 

Ariz. R. Civ. App. P. 13(a)(6) (brief shall contain arguments with 

“citations to the authorities, statutes and parts of the record relied on”); 

Polanco v. Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 

2007) (finding issue waived on appeal because party mentioned it in 

passing, cited no supporting legal authority, and failed to develop it 

further); cf. State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982)

(noting majority rule “that if hearsay evidence is admitted without 

objection, it becomes competent evidence admissible for all purposes”).
PARKER v. CITY OF TUCSON

Opinion of the Court

16

on California law, the passage of time, and the absence of evidence to 

suggest Coombes still was on parole, he was eligible to register to vote 

in California. Consequently, the court reasoned, he is eligible to 

register to vote in Arizona for purposes of § 19-114(A) and § 16-

101(A)(5) and was qualified to circulate initiative petitions.

¶26 The parties do not dispute that under California law, the 

civil rights of a person convicted of a felony are automatically 

suspended. See generally Cal. Penal Code § 2600(a) (“A person 

sentenced to imprisonment in a state prison . . . may during that period 

of confinement be deprived of such rights, and only such rights, as is 

reasonably related to legitimate penological interests.”); see also Cal. 

Const. art. II, § 4 (requiring legislature to “prohibit improper practices 

that affect elections and . . . provide for the disqualification of electors 

while . . . imprisoned or on parole for the conviction of a felony”). The 

California legislature has specified those rights that cannot be restored 

in the absence of a full pardon. For example, a convicted felon “whose 

civil rights have not been restored” is not eligible to serve on a jury. 

Cal. Civ. Proc. Code § 203(a)(5). And without a general pardon, “[a]ny 

person who has been convicted of a felony” is “disqualified from 

holding office as a peace officer or being employed as a peace officer”

and is “disqualified from any office or employment by the state, 

county, city, city and county or other political subdivision, . . . which 

confers upon the holder or employee the powers and duties of a peace 

officer.” Cal. Gov’t Code § 1029(a)(1). Similarly, under Cal. Gov’t 

Code § 1029(c):

Any person who has been convicted of 

a felony, other than a felony punishable by 

death, . . . and who demonstrates the ability 

to assist persons in programs of 

rehabilitation may hold office and be 

employed as a parole officer of the 

Department of Corrections or the 

Department of the Youth Authority, or as a 

probation officer in a county probation 

department, if he or she has been granted a 

full and unconditional pardon . . . .
PARKER v. CITY OF TUCSON

Opinion of the Court

17

¶27 Under California law, a convicted felon may seek 

restoration of all civil rights suspended by a felony conviction by filing 

a petition for rehabilitation and pardon in the court where the 

conviction occurred. Cal. Penal Code § 4852.01. Subsection (a) of Cal. 

Penal Code § 4852.01 provides:

Any person convicted of a felony who 

has been released from a state prison or other 

state penal institution or agency in 

California, whether discharged on 

completion of the term for which he or she 

was sentenced or released on parole prior to 

May 13, 1943, who has not been incarcerated 

in a state prison or other state penal 

institution or agency since his or her release 

and who presents satisfactory evidence of a 

three-year residence in this state immediately 

prior to the filing of the petition for a 

certificate of rehabilitation and pardon 

provided for by this chapter, may file the 

petition pursuant to the provisions of this 

chapter.

If granted, the court’s recommendation is sent to the Governor of the 

State of California for a full pardon. See Cal. Penal Code § 4852.13(a). 

If the convicted felon obtains a full pardon, he or she is restored to a 

variety of rights suspended by the conviction, including the right to 

vote, Cal. Penal Code § 4852.17, the right to possess a firearm, under 

certain circumstances, Cal. Penal Code § 4854, the right to apply for 

licensing by the state’s various professional and occupational licensing 

boards, Cal. Penal Code § 4853, the right to serve on a jury, Cal. Civ. 

Proc. Code § 203(a)(5), and the right to apply for a position as a county 

probation officer or state parole agent, Cal. Gov. Code § 1029(c). The 

fact that a person’s right to vote under Cal. Elec. Code §§ 2201, 2212, or 

even the right to hold public office, has been restored by operation of 

law does not permit the inference that the person’s civil rights, 

including the right to serve on a jury, have been fully restored. See 

United States. v. Horodner, 91 F.3d 1317, 1319 (9thCir. 1996) (noting that 

“defendant’s civil rights were not substantially restored because he 
PARKER v. CITY OF TUCSON

Opinion of the Court

18

was barred from serving on a jury, even though he could vote and hold 

office”).

¶28 Additionally, Cal. Penal Code § 4852.17 states that various 

agencies and courts are to receive notice of the certification of 

rehabilitation and pardon, providing as follows:

Whenever a person is issued a 

certificate of rehabilitation or granted a 

pardon from the Governor under this 

chapter, the fact shall be immediately 

reported to the Department of Justice by the 

court, Governor, officer, or governmental 

agency by whose official action the certificate 

is issued or the pardon granted. The 

Department of Justice shall immediately 

record the facts so reported on the former 

criminal record of the person, and transmit 

those facts to the Federal Bureau of 

Investigation at Washington, D.C. When the 

criminal record is thereafter reported by the 

department, it shall also report the fact that 

the person has received a certificate of 

rehabilitation, or pardon, or both.

(Emphasis added.)

¶29 Don Vogel, a private investigator hired by the Employees,

testified about his investigation of certain circulators and their criminal 

histories as reflected in various state records. With respect to 

Coombes, Vogel testified that, after discovering Coombes had been 

convicted of two felonies in July 2000, he attempted to find out if 

Coombes’s civil rights had been restored in California. Vogel stated he

had “found no evidence that they were restored” and had checked the 

“Orange County Superior Court docket for any information in the 

original case or in any follow-up documents indicating that the process 

had been started or completed.” Thus, after looking in precisely the 

place where any pardon or certificate of rehabilitation would have 

been, Vogel found no evidence that Coombes’s rights had been 
PARKER v. CITY OF TUCSON

Opinion of the Court

19

restored. This constitutes clear and convincing evidence that Coombes 

is a convicted felon whose civil rights have not been fully restored. The 

Employees therefore sustained their burden of establishing under any 

standard of proof applicable in a civil proceeding that Coombes was 

ineligible to circulate initiative petitions pursuant to § 19-114(A).

¶30 As we stated previously, statutory requirements for 

initiatives must be liberally construed, and compliance need only be 

substantial. See Pedersen, 230 Ariz. 556, ¶ 7, 288 P.3d at 762. Based on 

the evidence introduced at the hearing, particularly Vogel’s testimony, 

the Employees established a lack of substantial compliance with § 19-

114(A), § 16-101(A)(5), and article VII, § 2(C) of the Arizona 

Constitution by showing Coombes was a convicted felon whose civil 

rights had not been restored.

11

4. Eligibility of Circulator Oberg

¶31 We reach the same conclusion with respect to Daryl 

Oberg. Oberg pled guilty to one count of grand theft in Cuyahoga 

County, Ohio, in 1994, and was sentenced to a one-year prison term;

that term was suspended pending Oberg’s completion of a two-year 

term of probation and payment of restitution. The trial court 

concluded Oberg was eligible to vote in Ohio because “his ability to 

register as a voter was restored after completion” of his probationary 

term and there had been a “significant passage of time since Mr. 

Oberg’s conviction” and there was no evidence that “his file remains 

open.”

 

11Because these statutes and the Arizona Constitution require 

such specific criteria for convicted felons who wish to circulate 

petitions, arguably the lack of compliance is, for all practical purposes, 

expressly “fatal,” warranting technical and strict compliance rather 

than mere substantial compliance. Pedersen, 230 Ariz. 556, ¶ 7, 288 P.3d 

at 762. But, having established a lack of substantial compliance, the 

Employees clearly showed the Committee did not satisfy the 

requirements of the statutes and the constitution under a more 

technical review and even the requirement of strict compliance.
PARKER v. CITY OF TUCSON

Opinion of the Court

20

¶32 Under Ohio law, a person convicted of a felony “is 

incompetent to be an elector or juror or to hold an office of honor, trust,

or profit.” Ohio Rev. Code Ann. § 2961.01(A)(1). Subsection (A)(2) of 

that statute provides that a person whose civil rights have been 

suspended because of a felony conviction is competent to be an elector 

if “granted parole, judicial release, or a conditional pardon or is 

released under a non-jail community control sanction or a post-release 

control sanction.” A “full pardon” restores the remainder of the rights 

and privileges specified in subsection (A)(1). Ohio Rev. Code Ann. 

§ 2961.01(A)(2). So, too, does an order of expungement. See Ohio Rev. 

Code Ann. § 2953.33(A) (providing expungement order restores “all 

rights and privileges not otherwise restored by termination of the 

sentence or community control sanction or by final release on parole or 

post-release control”).

¶33 A full pardon or commutation must be sought pursuant to 

Ohio Rev. Code Ann. § 2967.07. See also Ohio Rev. Code Ann. 

§ 2967.01(B) (“‘Pardon’ means the remission of penalty by the governor 

in accordance with the power vested in the governor by the 

constitution.”). The governor may grant the pardon or commutation 

“upon such conditions precedent or subsequent as the governor may 

impose.” Ohio Rev. Code Ann. § 2967.04(A). An unconditional 

pardon, which includes “a conditional pardon with respect to which all 

conditions have been performed or have transpired,” also “relieves the 

person to whom it is granted of all disabilities arising out of the 

conviction or convictions from which it is granted.” Ohio Rev. Code 

Ann. § 2967.04(B). Significantly, Ohio Rev. Code Ann. § 2967.04(A)

provides that a pardon or commutation does not take effect until the 

convicted felon accepts any conditions, attested to by one witness who 

shall go before the clerk of the court of 

common pleas in whose office the sentence is 

recorded and prove the signature of the 

convict. The clerk shall thereupon record the 

warrant, indorsement, and proof in the 

journal of the court, which record, or a duly 

certified transcript thereof, shall be evidence 

of such pardon or commutation, the 
PARKER v. CITY OF TUCSON

Opinion of the Court

21

conditions thereof, and the acceptance of the 

conditions.

¶34 Thus, if Oberg had sought or been granted a full pardon, 

the pardon or application for pardon would have been in the record of 

the court where his conviction occurred. See State ex rel. Gains v. Rossi, 

716 N.E.2d 204, 207-08 (1999) (convicted felon’s right to hold public 

office can be restored only through pardon or expungement processes 

and is not automatically restored by “termination of sentence or 

probation or by final release on parole”). Vogel investigated the 

restoration of Oberg’s civil rights by asking the court in which the 

conviction had occurred whether Oberg had applied for such a 

restoration and was told the court had no information establishing his 

civil rights had been restored. Had Oberg’s civil rights been fully 

restored, Vogel would have found that information in the records of 

the court of conviction. Thus, the evidence established a lack of 

compliance with the requirements of § 19-114(A), § 16-101(A)(5), and 

article VII, § 2(C) of the Arizona Constitution based on the evidence 

that Oberg had been convicted of a felony and his civil rights had not 

been restored.

¶35 For the foregoing reasons, we conclude the trial court 

erred in finding that Coombes and Oberg were qualified to circulate 

initiative petitions under Arizona law. Thus, pursuant to § 19-

121.01(A)(1)(g), the 2,978 signatures collected by Coombes and Oberg 

are invalid. After subtracting those signatures and taking into account 

the error rate provided by the Pima County Recorder, the Committee 

falls far short of the 12,730 valid signatures required to place the 

Initiative on the ballot.

5. Eligibility of Circulator Leonardi

¶36 Vogel testified, with respect to Josephine Leonardi, that 

she had been convicted in Carroll County, Illinois, in 2001 of 

possession of methamphetamine, a class-two felony. Vogel testified 

further that he had investigated whether Leonardi’s civil rights had 

been restored and, based on his communication with the rural county 

in Illinois where the conviction had occurred, there was no such 

information. But, for the reasons discussed below, because we reject 
PARKER v. CITY OF TUCSON

Opinion of the Court

22

the issues raised in the Committee’s cross-appeal, we need not address 

whether, by operation of the law of Illinois, Leonardi’s civil rights, 

including but not limited to her right to register to vote, were 

restored.12 Even assuming the 476 signatures she collected were 

properly considered, the Committee did not collect sufficient 

signatures to qualify the Initiative for the ballot.

B. The Committee’s Cross-Appeal

¶37 In its cross-appeal13 from the trial court’s ruling, the 

Committee argues: (1) there was no legal basis for the court to 

 

12A person convicted of a felony “shall be ineligible to hold an 

office created by the Constitution of this State until the completion of

his sentence” and that “[a] person sentenced to imprisonment shall lose 

his right to vote until released from imprisonment.” 730 Ill. Comp. 

Stat. 5/5-5-5(b), (c). Other civil rights are suspended as well, as 

provided in the state’s election code. 730 Ill. Comp. Stat. 5/5-5-5(a). 

Section 5/5-5-5(d) provides, however, that, except with regard to the 

suspension or revocation of a person’s driver license, all license rights 

and privileges are restored once the person is released from prison or 

discharged from probation, “unless the authority having jurisdiction of 

such license rights finds after investigation and hearing that restoration 

is not in the public interest.” We note, however, that under Illinois law, 

“[i]t is unlawful for a person to knowingly possess . . . any firearm or 

any firearm ammunition if the person has been convicted of a felony 

under the laws of this State or any other jurisdiction.” 720 Ill. Comp. 

Stat. 5/24-1.1(a). That right may be restored only upon application to 

the director of the Department of State Police. See 430 Ill. Comp. Stat. 

65/10(c).

13It was not necessary for the Committee to file a cross-appeal. 

None of the issues raised would “enlarge the rights of the appellee or 

. . . lessen the rights of the appellant” and instead only offer alternative 

means to affirm the trial court’s judgment in favor of the Committee. 

Ariz. R. Civ. App. P. 13(b)(3). We nonetheless treat the Committee’s 

claims as cross-issues and address their merits. See Town of Miami v. 

City of Globe, 195 Ariz. 176, n.1, 985 P.2d 1035, 1036 n.1 (App. 1998) 

(addressing claims improperly raised on cross-appeal as cross-issues).
PARKER v. CITY OF TUCSON

Opinion of the Court

23

disqualify petition sheets circulated by non-resident circulators; 

(2) insufficient evidence supported the court’s finding that circulators

Stephen Laws, Renee Gordon, and Louise Breneiser were not Arizona 

residents; (3) the court erred in disqualifying an additional sixty 

petition sheets because the errors were merely technical; (4) the court 

erred by permitting the Employees to amend their pleadings during 

trial to include an argument that a circulator was not an Arizona 

resident; and, (5) the court erred in denying the Committee’s motion to 

dismiss the complaint as untimely. We address each argument in turn.

1. Non-Resident Circulators

¶38 The Employees alleged in their complaint, and the trial 

court found, that three circulators—Stephen Laws, Renee Gordon, and 

Louise Breneiser—did not live in Arizona and had not registered with 

the Secretary of State as out-of-state circulators as required by § 19-

112(C). The court thus disqualified the petition sheets circulated by 

those circulators. The Committee argues on appeal the court had no 

authority to do so because the legislature did not provide

disqualification as a penalty for noncompliance with § 19-112(C). In 

our discretion, we decline to address this argument because the 

Committee did not raise it below. See Airfreight Express Ltd. v. Evergreen 

Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238-39 (App. 2007)

(arguments raised for first time on appeal generally waived).

¶39 The Committee further argues the trial court erred in 

concluding there was clear and convincing evidence that Laws, 

Gordon, and Breneiser were not Arizona residents.

14 Evidence is clear 

and convincing if it makes “‘the thing to be proved . . . highly probable 

or reasonably certain.’” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 25, 110 

P.3d 1013, 1018-19 (2005), quoting Black’s Law Dictionary 577 (7th ed. 

1999). We will affirm the court’s determination unless it is clearly 

erroneous. See Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 33, 20 

P.3d 1158, 1168 (App. 2001).

 

14The Employees assert they were only required to demonstrate 

the circulators’ non-residence by a preponderance of the evidence. 

Because we determine there was clear and convincing evidence of nonresidence, we do not address this argument.
PARKER v. CITY OF TUCSON

Opinion of the Court

24

¶40 Section 19-112(C) requires that “[c]irculators who are not 

residents of this state must be registered as circulators with the 

secretary of state before circulating petitions.” Arizona election law 

provides that a resident is a person who has “actual physical presence 

in this state . . . combined with an intent to remain.” § 16-101(B). “A 

temporary absence,” however, “does not result in a loss of residence if 

the individual has an intent to return following his [or her] absence.” 

Id. The Committee first suggests the trial court erred because it did not 

expressly examine the factors listed in A.R.S. § 16-593 and should have 

considered “where the individual’s family resides” while a person is 

absent from the state and “[w]here the person’s children go to school.”

We reject this argument. Section 16-593 relates only to the scope of 

examination conducted by the election board pursuant to a challenge 

to an individual elector’s residence pursuant to A.R.S. §§ 16-591 and 

16-592. It does not purport to create a list of factors a trial court must 

consider in determining a person’s residence. Although the factors 

listed in § 16-593 may be relevant to the court’s decision, the absence of 

evidence related to specific factors does not require the court to 

conclude the person is a resident.

2. Eligibility of Circulator Laws

¶41 In finding Laws was not an Arizona resident, the trial 

court noted he had provided two addresses for his residence in 

Arizona. One address is a high-rise apartment complex, but at the 

other address there is no residence or structure of any kind. The court

also noted Vogel’s testimony that the complex manager15 did not know 

Laws, had told Vogel that Laws did not receive mail there, and had 

checked the complex’s computer database listing the name of residents 

 

15To the extent the Committee challenges the testimony of the 

complex manager as inadmissible hearsay, it does not adequately 

develop this argument, and we do not consider it further. See Ariz. R. 

Civ. App. P. 13(a)(6) (brief shall contain arguments with “citations to 

the authorities, statutes and parts of the record relied on”); Polanco v. 

Indus. Comm’n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) 

(finding issue waived on appeal because party mentioned it in passing, 

cited no supporting legal authority, and failed to develop it further).
PARKER v. CITY OF TUCSON

Opinion of the Court

25

without finding an entry for Laws. Additionally, the court observed, 

Andrew Chavez—the owner of a petition-circulating company—

testified that he knew Laws, that Laws traveled from state to state as a 

circulator, and that Laws would have described his state of residence 

as either Ohio or California. Chavez additionally testified Laws had 

arrived in Arizona just before he began circulating signature sheets and 

had left the day after the sheets were submitted.

¶42 The Committee argues there was insufficient evidence that 

Laws was not a resident because he had been registered to vote in 

Maricopa County since 2007 and because Vogel “false[ly] assum[ed]” 

that Laws lived alone at the apartment complex, thus explaining why 

he was not listed in the complex’s registry. The Committee further 

asserts Chavez’s testimony that Laws “travels from one temporary 

location to another in his work as a petition circulator has no legal 

bearing on his residence.” We disagree, particularly in light of the 

dearth of evidence connecting Laws with the apartment address he had 

provided and Chavez’s testimony that Laws would not characterize 

himself as an Arizona resident. In short, the trial court reasonably 

could conclude Laws did not live at the address he had listed. The 

Committee essentially is asking us to reweigh the evidence, which we 

will not do. See Pro Finish USA, Ltd. v. Johnson, 204 Ariz. 257, ¶ 23, 63 

P.2d 288, 294 (App. 2003).

3. Eligibility of Circulator Gordon

¶43 The Committee further argues the trial court erred in 

finding Gordon was a non-resident because “[t]he record is devoid of 

any evidence” about her residency, noting that Vogel did not 

investigate her. The court concluded Gordon was a non-resident, 

observing that Chavez had testified she had traveled with Laws to 

circulate petitions and had left with him. Thus, the Committee reasons, 

the court improperly disqualified Gordon based on her “association” 

with Laws. But the Committee again discounts Chavez’s testimony, 

which the court found credible. Although Chavez acknowledged he 

did not know Gordon “personally,” he testified that he knew of her, 

was familiar with her residency status, knew she did not live at the 

address she had listed, and knew she and Laws were in a relationship 

and travelled together. And Gordon provided the same address as 
PARKER v. CITY OF TUCSON

Opinion of the Court

26

Laws on her petition signature sheet, despite there being no evidence 

she lived at that address and only limited evidence tying Laws to that 

address. This amply supports the court’s conclusion that Gordon was 

not an Arizona resident.

4. Eligibility of Circulator Breneiser

¶44 Finally, the Committee contends the trial court erred in 

finding Breneiser a non-resident based solely on the fact that she had 

filed a non-resident registration form for another election with the 

Secretary of State approximately forty-five days before the Initiative 

was assigned a serial number from the City Clerk. The Committee 

speculates that “[a] lot could have happened in that period of time” 

and that Brenheiser “may well have decided to re-establish residency 

in Arizona after” filing the registration form. We cannot agree with the 

Committee that, in light of plain evidence that Brenheiser was not a 

resident in April, the court could not conclude she also was not a 

resident in May.

5. Additional Disqualified Signature Sheets

¶45 The Committee next asserts the trial court erred by 

excluding signature sheets based on faults in the accompanying 

circulator’s affidavit—specifically, that the circulator had avowed that 

“each individual [signer] printed the individual’s own name and 

address” when the evidence showed that someone other than the 

signer had done so. The Committee argues that, pursuant to § 19-

121.01(A)(3)(f), the court was permitted to remove only the defective

entries and had no authority to disqualify the entire petition sheet. It

further argues, in the alternative, that the defective entries constituted 

only “technical” violations that did not warrant disqualification of the 

entire sheet. Whether the court had authority to exclude the signature 

sheets is a question of law that we review de novo. See Harris, 219 Ariz. 

36, ¶ 13, 192 P.3d at 165-66.

¶46 Section 19-112(A) governs the signing of petition signature 

sheets and requires, inter alia, that the qualified elector “print his first 

and last names and write, in the appropriate spaces following the 

signature, the signer’s residence address, giving street and number, 
PARKER v. CITY OF TUCSON

Opinion of the Court

27

and if he has no street address, a description of his residence location.” 

Each petition signature sheet must be accompanied by an affidavit 

signed by the circulator, avowing that the signer has complied with 

§ 19-112(A). See § 19-112(C). Section 19-121.01(A)(3)(f) requires the 

Secretary of State, or in this case the City Clerk, to mark as ineligible for 

verification any signature “for which the secretary of state determines 

that the petition circulator has printed the elector’s first and last names 

or other information in violation of § 19-112.”

¶47 We disagree with the Committee’s contention that a trial 

court is limited to this remedy under the circumstances presented here. 

Section 19-121.01(A) describes the procedure to be used and the sheets 

and signatures subject to removal by the Secretary of State for various 

faults in the signatures and/or petition sheets. It does not purport to 

limit the remedies available to a trial court and, critically, does not 

address the issue of fraudulent affidavits. Our supreme court made 

clear in Brousseau v. Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 

(1984), that “petitions containing false certifications by circulators are 

void, and the signatures on such petitions may not be considered in 

determining the sufficiency of the number of signatures to qualify for 

placement on the ballot.” The circulator affidavits on the petition 

sheets used here stated, among other things, that “each individual 

printed the individual’s own name and address.” Because the petition 

circulators avowed that each signer wrote his or her own address, and 

the evidence demonstrated that avowal was false, the signature sheets

are void pursuant to the rule announced in Brousseau.

¶48 The Committee further argues, however, that our supreme 

court abrogated the Brousseau rule in Ross v. Bennett, 228 Ariz. 174, 265 

P.3d 356 (2011). The Committee misreads Ross. There, the court 

rejected the argument that Brousseau required the trial court to strike 

signature sheets “because the county recorder could not certify 

individual signatures on them.” Ross, 228 Ariz. 174, ¶ 34, 265 P.2d at 

362. The court clarified that omissions and irregularities did not 

require an entire signature sheet to be discarded and that Brousseau did 

not “stand for the proposition that the Court should disqualify all 

petitions with affidavits based on any false information.” Ross, 228 

Ariz. 174, ¶ 36, 265 P.3d at 363. Instead, the court explained, although 

the signature sheets “may contain some signatures from electors who 
PARKER v. CITY OF TUCSON

Opinion of the Court

28

are not qualified to vote,” that did not mean “the circulator’s oath was 

itself fraudulent” because there was no evidence the circulators were 

aware the electors were not qualified and “[f]raud requires an element 

of knowledge—a guilty mental state.” Id. ¶ 37. Here, in contrast, the 

circulator’s affidavit was necessarily false. It was apparent from the 

signature sheets that the elector did not print his or her own address—

a fact the circulator must have known if the affidavit’s statement that 

each elector filled out the signature sheet “in my presence on the date 

indicated” were true. The false affidavits rendered the signature sheets

void. Brousseau, 138 Ariz. at 456, 675 P.2d at 716.

6. Amended Complaint

¶49 The Committee further claims the trial court improperly 

permitted the Employees “to amend their pleadings during trial” to 

challenge Gordon’s residency status. On the first day of the evidentiary 

hearing, the court heard testimony from Carol Zimmerman, the 

political consultant hired by the Committee to organize and supervise 

the petition circulators. During cross-examination, counsel for the 

Committee asked Zimmerman about Laws’s “living arrangements.” 

She testified that Laws had “traveled” with Gordon and that Gordon 

“is also registered at that address in Phoenix.” On the second day of 

the hearing, counsel for the Employees asked Chavez about 

Zimmerman’s testimony concerning Gordon, and Chavez confirmed 

Gordon was a paid circulator who had traveled from California to 

Arizona with Laws. Chavez further stated that Gordon’s affidavit 

claiming she lived at the Phoenix address was not “a truthful 

statement.” The Committee did not object to this testimony. During 

cross-examination, counsel for the Committee asked Chavez about 

“property” owned by Gordon. When the Employees sought admission 

of signature sheets circulated by Gordon, however, the Committee 

objected, stating it opposed the use of the exhibit “for the purpose of 

trying to amend the Complaint and adding another allegation to it.”

¶50 The Employees agreed they were seeking to amend their 

complaint to include a claim that Gordon was ineligible to serve as a 

circulator and argued, “this is an area that was opened up by the 

Committee in the questioning of their own witness [Ms. Zimmerman]”

because she had offered the Phoenix address “as proof of Ms. Gordon’s 
PARKER v. CITY OF TUCSON

Opinion of the Court

29

location” and the Employees’ “research[]” showed Gordon did not live 

there. The Committee responded that it did not “know what that 

research is,” that there had not been “a witness to testify as to that 

research,” and that it “is very late in the process to bring in” a claim 

related to another circulator. The trial court, noting that amendments 

should be liberally granted and that a pleading can be amended to 

conform to the evidence presented, overruled the Committee’s 

objection.

¶51 Rule 15(b), Ariz. R. Civ. P., automatically amends 

pleadings to “conform to the evidence” and to raise additional issues 

“[w]hen [such] issues . . . are tried by express or implied consent of the 

parties.” However, the pleadings still may be amended even when a 

party objects to evidence related to the new issue “on the ground that it 

is not within the issues made by the pleadings.” Id. A trial court is 

required to permit such an amendment “when the presentation of the 

merits of the action will be subserved thereby and the objecting party 

fails to satisfy the court that the admission of such evidence would 

prejudice the party in maintaining the party’s action or defense upon 

the merits.” Id. “Failure to object to the introduction of evidence on 

the ground that it is not within the issues is sufficient to imply consent 

to try such issues.” In re Estate of McCauley, 101 Ariz. 8, 18, 415 P.2d 

431, 441 (1966). “Permitting evidence relevant to an existing issue to be 

admitted without objection does not constitute ‘implied consent’ to 

trial of an issue which has not been raised.” Magma Copper Co. v. Indus. 

Comm’n, 139 Ariz. 38, 47, 676 P.2d 1096, 1106 (1983). An amendment 

nonetheless is permitted absent a showing of “prejudice, i.e. surprise.” 

Estate of McCauley, 101 Ariz. at 18, 415 P.2d at 441. We review the trial 

court’s decision to permit amendment of the pleadings under 

Rule 15(b) for an abuse of discretion.16 Bujanda v. Montgomery Ward & 

Co., 125 Ariz. 314, 315, 609 P.2d 584, 585 (App. 1980).

 

16The Committee also argues that “Rule 15’s ‘liberal policy of 

amendment’” does not apply to election cases because it would have 

had no opportunity for additional discovery and “trial continuances 

are typically unavailable.” The Committee did not raise this argument 

below nor did it suggest that a continuance would permit it to 

adequately contest the Employees’ claim concerning Gordon’s 
PARKER v. CITY OF TUCSON

Opinion of the Court

30

¶52 The Committee contends it did not “open[] the door” to 

the issue whether Gordon was a qualified circulator because the 

evidence related to Gordon’s address was introduced “to support an 

existing claim.” We need not address this argument, however, because 

the Committee has not shown resulting prejudice. The amendment did 

nothing to change the Employees’ theory of the case—the issue of nonresident circulators had been raised and thoroughly addressed by the 

parties. See Bujanda, 125 Ariz. at 316, 609 P.2d at 586 (amendment 

improper because it “would have changed the theory of the case”). 

And, the Committee cannot reasonably claim surprise, given that 

evidence was produced on the first day of the evidentiary hearing that 

Gordon was a circulator who claimed to live at the same address as 

and was in a relationship with Laws—whom the Employees had 

specifically identified as a non-resident circulator. Indeed, the 

Committee chose to use that evidence in an apparent attempt to bolster 

its defense of Laws’s residency status by suggesting that Gordon and 

not Laws might have owned a condominium at the address both had 

listed. Thus, the Committee reasonably should have anticipated the 

Employees would assert Gordon was not a qualified circulator as well. 

Accordingly, we conclude the trial court did not err by permitting the 

Employees to amend their complaint to conform to evidence that 

Gordon was not an Arizona resident.17

7. Denial of Motion to Dismiss

¶53 Last, the Committee argues the trial court erred by 

denying its motion to dismiss the Employees’ complaint because they 

 

residency status. Thus, we do not address the issue further. See

Airfreight Express Ltd., 215 Ariz. 103, ¶ 17, 158 P.3d at 238-39.

17Because we conclude the Committee has not shown resulting 

surprise, we need not separately address its argument that the 

amendment violated its due process rights. See Cook v. Losnegard, 228 

Ariz. 202, ¶ 18, 265 P.2d 384, 388 (App. 2011) (“‘Due process entitles a 

party to notice and an opportunity to be heard at a meaningful time 

and in a meaningful manner.’”), quoting Curtis v. Richardson, 212 Ariz. 

308, ¶ 16, 131 P.3d 480, 484 (App. 2006).
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Opinion of the Court

31

did not file it within the five-day time limit prescribed by § 19-122(A)

and, in the alternative, did not timely seek mandamus relief pursuant 

to § 19-122(C) and § 12-2021. Pursuant to § 19-122(A):

If the secretary of state refuses to accept and 

file a petition for the initiative or referendum, 

or proposal for a constitutional amendment 

that has been presented within the time 

prescribed, or if the secretary of state refuses 

to transmit the facsimiles of a signature sheet 

or sheets or affidavits of circulators to the 

county recorders for certification under § 19-

121.01, the secretary of state shall provide the 

person who submitted the petition, proposal, 

signature sheet or affidavit with a written 

statement of the reason for the refusal. 

Within five calendar days after the refusal 

any citizen may apply to the superior court 

for a writ of mandamus to compel the 

secretary of state to file the petition or 

proposal or transmit the facsimiles.

¶54 Relying on Transportation Infrastructure Moving Arizona’s 

Economy v. Brewer, 219 Ariz. 207, 196 P.3d 229 (2008) (“TIME”), the 

Committee argues, as it did below, that our supreme court held that 

the time limit prescribed by § 19-122(A) was “applicable to any

challenge” to the Secretary of State’s actions under § 19-121.01. Thus, 

the Committee concludes, although the Employees’ claim was brought 

pursuant to § 19-122(C), the five-day time limit in § 19-122(A)

nonetheless applies. Section 19-122(C) permits an action “by any 

citizen” to challenge a petition that is not legally sufficient and to 

“enjoin the secretary or other officers from certifying or printing on the 

official ballot for the ensuing election the amendment or measure 

proposed or referred.” The subsection contains no express time limit

for bringing that action.

¶55 Questions of statutory interpretation are reviewed de 

novo. Mejak v. Granville, 212 Ariz. 555, ¶ 7, 136 P.3d 874, 875 (2006). 

Here, the Committee’s position is belied by the statutory language. See 
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Opinion of the Court

32

id. ¶ 8 (statutory language best indicator of legislative intent). By its 

plain language, § 19-122(A) applies only to the Secretary of State’s 

refusal to “accept and file” a valid initiative petition. The Employees’ 

challenge here was precisely the opposite and is encompassed by the 

plain language of § 19-122(C).

¶56 We find nothing in TIME that supports the Committee’s 

argument and certainly nothing that suggests we should ignore the 

plain language of § 19-122. The Committee relies on portions of TIME

that, when read in isolation, obliquely suggest that § 19-122(A) could 

apply to any challenge to the actions of the Secretary of State under 

§ 19-121.01. But the Committee does not considerthose portions of the 

court’s decision in context and in light of the issues that were raised in 

that case and addressed by the court; the court in TIME simply did not 

discuss whether § 19-122(C) should be governed by the five-day limit 

in § 19-122(A). Indeed, the court cited with approval its decision in 

Kromko v. Superior Court, 168 Ariz. 51, 55, 811 P.2d 12, 16 (1991), in 

which the court expressly determined that the time limit in § 19-122(A)

does not apply to a challenge under § 19-122(C). TIME, 219 Ariz. 207,

¶¶ 18, 28, 196 P.3d at 233-35.

¶57 The Committee alternatively contends that the “principles 

enunciated in TIME” nonetheless required dismissal of the Employees’ 

complaint. Specifically, based on TIME and Kromko, it asserts the 

Employees were required to challenge the City Clerk’s calculations 

before the Clerk sent the petition sheets to the County Recorder to 

determine the error rate. The Committee is correct that our supreme 

court recognized and discussed the potential problems caused by the 

short timeframes often present in election challenges. TIME, 219 Ariz. 

207, ¶¶ 33-35, 196 P.3d at 235-36. Thus, the court has determined that 

such actions cannot be unreasonably delayed. Id. ¶ 33; see also Kromko, 

168 Ariz. at 57, 811 P.2d at 18 (“[D]isputes 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.”).

¶58 We agree with the trial court that there was no 

unreasonable delay here. The Employees filed their action nearly two 

months before the deadline for printing the ballots. See Kromko, 168 

Ariz. at 57, 811 P.2d at 18 (challenge filed “more than a month and a 
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Opinion of the Court

33

half before absentee voting began” timely). Although the Employees 

conceivably could have filed their action between two and three weeks 

earlier, after the City Clerk had issued its initial finding that some 

22,000 signatures were eligible for verification, the Committee has 

identified no resulting prejudice. Moreover, despite the Committee’s 

fears, there was time for thorough proceedings in both the trial court 

and before this court, and the Committee had the opportunity to seek 

review from our supreme court.

DISPOSITION

¶59 For the reasons stated, pursuant to this court’s order dated 

September 12, 2013, the judgment is reversed.