Appellate court remands Recall Them All lawsuit back to trial court

Those whose signatures were declared ineligible on petitions seeking to recall two Yuma City Council members will have their day in court after all.

A three-judge panel of the Arizona Court of Appeals has reversed a lower court's dismissal of a lawsuit brought by backers of the recall effort. The lawsuit filed by Mitchell Dunn, chairman of Recall Them All 2012, challenged the striking by city and county officials of several signatures from their recall petitions.

In the lawsuit, Dunn alleged that Yuma City Clerk Lynda Bushong and Yuma County Recorder Robin Stallworth Pouquette illegally removed several signatures from the petitions collected by the committee. As a result, there were insufficient valid signatures to force a recall election of Councilmen Paul Johnson and Jerry Stuart.

Yuma County Superior Court Judge John Nelson in September dismissed the special action filed by Recall Them All 2012, citing lack of jurisdiction “over the case as pled” and granting relief to Bushong and Stallworth Pouquette.

Dunn appealed Nelson's ruling to the state appellate court, claiming that the rights of 118 registered voters in the city were violated when their signatures were removed from the petitions.

In its memorandum, the appellate court wrote that “the relevant statutory provisions do not seem to provide a direct statutory basis for challenging signatures that have been struck. We disagree, however, that the relevant statutes do not allow a challenge to stricken signatures.”

The memorandum continued: “ ... such a myopic construction would undermine the Constitutional guarantee of the people's right to attempt to recall public officials. Consequently, the committee can challenge the signatures stricken by the receiving officer (Bushong) and Recorder from the recall petitions' signature sheets.”

In conclusion, the memorandum states: “Consequently, we reverse the dismissal with prejudice and remand this matter for a hearing to allow the court to determine whether any of the stricken signatures were struck contrary to the applicable statutes.”

Joshua Carden, the attorney representing Recall Them All 2012, responded: “Now we will have the hearing we prepared for in the first place ... reviewing the eligibility of the signatures that had been stricken.”

Mayor Al Krieger said he thinks the court's “language was very clear and direct that elected officials at all levels of government ought to be focused on protecting the rights of citizens. That ought to be their primary purpose.”

The city has 10 days to appeal the appellate court's decision to the Arizona Supreme Court.

City Administrator Greg Wilkinson declined to comment on the decision or whether the city would appeal the decision.

The law firm Snell & Wilmer, which represented Bushong on the case, did not return a phone call seeking comment by press time.

According to the appellate court's memorandum, Recorder Stallworth Pouquette filed a notice with the court that she “will abide by the direction provided by the Court in its resolution of the issues.”

The appellate court also denied a request by Johnson and Stuart for attorney's fees and costs they have incurred. “They are not entitled to fees because this is not a case involving a contract,” the court wrote. “Moreover, they are not entitled to fees as a sanction for filing a meritless appeal because it was not meritless.”

Johnson said he hasn't seen a copy of the decision “but I trust the courts and am sure they'll do the right thing.”

“It's now back in Judge Nelson's court for his decision,” said Stuart. “We'll see how he handles their request.”