1 BARBARA LAWALL

2 PIMA COUNTY ATTORNEY

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

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

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BARBARA LAWALL

CIVIL DIVISION

12 Benny White, a citizen and qualified No. C20193542

elector of Tucson, Arizona, et al.,
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PIMA COUNTY DEFENDANTS’
14 Plaintiffs MOTION TO DISMISS
vs. PLAINTIFFS’ VERIFIED
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AMENDED COMPLAINT
16 Roger Randolph, in his official capacity
as City Clerk of the City of Tucson, et al., Assigned to: Hon. D. Douglas Metcalf
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18 Defendants (Civil - Election)
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19 vs.
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People’s Defense Committee, an
21 unincorporated association, et al.,
22 Real Parties in Interest
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24 The Pima County Recorder F. Ann Rodriguez, Pima County Director of
25 Elections, Brad Nelson, Pima County Supervisor Ally Miller, Pima County
26 Supervisor Ramón Valadez, Pima County Supervisor Sharon Bronson, Pima County

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 1 Supervisor Steve Christy, and Pima County Supervisor Richard Elías (“Pima County
2 Defendants”), hereby move to dismiss Plaintiffs’ Amended Complaint as to Pima
3 County Defendants pursuant to Ariz. R. Civ. P. 12(b)(6) and 21.
4 Plaintiffs have filed this action pursuant to A.R.S. § 19-122(C) challenging the
5 certification of the City Clerk of an initiative measure to be voted upon during the
6 City of Tucson’s general election on November 5, 2019. Pursuant to A.R.S. § 19-141,
7 the City Clerk serves the same function for city initiatives as the Secretary of State
8 does for statewide initiatives. This is not a federal, state, or county election. It is
9 purely a City of Tucson election.
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PIMA COUNTY ATTORNEY

11 I. The Pima County Supervisors and Pima County Elections Director

BARBARA LAWALL

are not necessary or proper parties to this action.

CIVIL DIVISION

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13 As this is a City of Tucson election, the City can choose to conduct the election
14 itself or contract with the County for election services. In the past, the City has
15 chosen to conduct its own elections. For this particular election cycle, it has chosen to
16 contract with Pima County for election services through an Intergovernmental
17 Agreement authorized by A.R.S. §§ 11-952 et seq., 16-172, 16-205(C), 16-409 and
18 16-450. The allegations in paragraphs 8 and 9 of the Amended Complaint recognize
19 that the Pima County Board of Supervisors and the Pima County Elections Director
20 have election responsibilities in “county-wide” elections. This election however is
21 purely a City of Tucson election and those individuals do not have any statutory
22 responsibilities in this election. The Pima County Supervisors and the Pima County
23 Elections Director do not have a cognizable legal interest in this action and are not
24 necessary for any relief that may be accorded by the Court. The Board of Supervisors
25 and the Elections Director are necessary parties in candidate petition challenges under
26 A.R.S. § 16-351(C). They are not, however, necessary parties in city initiative

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 1 petition challenges under A.R.S. § 19-122(C). Applying the statutory construction
2 maxim of expressio unius est exclusio alterius, the expression of one thing means the
3 exclusion of the other, the Board of Supervisors and the Elections Director are not
4 necessary or proper parties to this action. Lewis v. Industrial Commission, 93 Ariz.
5 324 (1963). Accordingly, they should be dismissed as parties to this action.
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7 II. The Pima County Recorder is not a necessary or proper party to
this action.
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9 Pursuant to A.R.S. § 19-121.02, the Pima County Recorder received a random
10 sample of signatures for verification, determined which signatures in that sample
PIMA COUNTY ATTORNEY

11 should be disqualified for a statutory reason, and certified a result to the City Clerk on
BARBARA LAWALL

CIVIL DIVISION

12 July 15, 2019. Contrary to the allegation in paragraph 32 of the Amended Complaint,
13 the Pima County Recorder only verified 625 signatures and did not certify 12,488
14 signatures. See attached Exhibit A. A challenge to the Recorder’s certification had to
15 have been filed within 5 calendar days under A.R.S. § 19-121.03(B). No such
16 challenge was filed and the instant action does not contest the verifications made by
17 the County Recorder.
18 If the Court decides that the City Clerk’s determination under A.R.S. § 19-
19 121.04 to place the initiative on the ballot was improper and orders amendments to
20 the City Clerk’s process under A.R.S. § 19-121.01, including the submission of a new
21 random sample, the Pima County Recorder will perform her statutory duty under
22 A.R.S. § 19-121.02 and verify the signatures in the new sample. However, the Pima
23 County Recorder is only a necessary and proper party to a challenge under A.R.S. §
24 19-121.03(B). She does not have a cognizable legal interest in this action and is not
25 necessary for any relief that may be accorded by the Court. She should not be subject
26 to the duties of a party in this action such as discovery. For the reasons previously

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 1 provided, the Pima County Recorder is not a necessary or proper party to this action
2 under A.R.S. § 19-122(C). Accordingly, she should be dismissed as a party to this
3 action.
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WHEREFORE, County Defendants request the following:
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6 1. That they be dismissed as parties to this action.
7 2. Such other and further relief as the Court deems just and proper.
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9 RESPECTFULLY SUBMITTED July 31, 2019.
10 BARBARA LAWALL,
PIMA COUNTY ATTORNEY

11 PIMA COUNTY ATTORNEY

BARBARA LAWALL

CIVIL DIVISION

12 By: /s/ Daniel Jurkowitz

Daniel Jurkowitz,
13 Deputy County Attorney
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 1 CERTIFICATE OF SERVICE
2 I hereby certify that on July 31, 2019, I electronically transmitted the attached
3 document to the Clerk’s Office using the TurboCourt System for filing and transmittal
4 of a Notice of Electronic Filing to the following TurboCourt registrants:
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6 John G. Anderson, Esq.
Zachary L. Cohen, Esq.
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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

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BARBARA LAWALL

CIVIL DIVISION

12 Dennis P. McLaughlin, Esq.

Jennifer Stash, Esq.
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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
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Tucson, AZ 85701
19 GattoneCivilRightsLaw@gmail.com
Attorney for Real Party in Interest
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21 By: /s/ Katherine T. Syverson
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