1 Paul Gattone

State Bar #012482

2 Law Office of Paul Gattone
301 S. Convent
Tucson, AZ 85701
3 (520) 623-1922
pgattone@aol.com
4 Counsel for Real Parties in Interest
5 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
6 IN AND FOR THE COUNTY OF PIMA
7
Benny White, et al., )
8 )
Plaintiffs, ) Case No. C-2019-3542
9 )
v. ) REAL PARTIES IN INTEREST
10 ) RESPONSE TO FIRST AMENDED
) COMPLAINT AND REPLY IN
11 Roger Randolph, in his official capacity, et ) SUPPORT OF
) MOTION TO DISMISS
12 al., )
, )
13 )
Defendants. )
14 )
)
15 )
16
REAL PARTIES IN INTEREST PEOPLE’S DEFENSE COMMITTEE’S,
17 MARION CHUBON’S, STEVE DIAMOND’S, AND JOEL FEINMAN’S
RESPONSE TO FIRST AMENDED COMPLAINT
18
19 Real Parties in Interest People’s Defense Committee, Marion Chubon, Steve

20 Diamond, and Joel Feinman respond to Plaintiff’s Complaint and reply in support of
21
their pending Motion to Dismiss, as follows:
22
23 I. 9,241 IS THE APPROPRIATE NUMBER OF REQUIRED VALID
SIGNATURES.
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 1 Real Parties in Interest re-assert their arguments presented in their Motion to
2 Dismiss filed on July 25. Real Parties in Interest continue to assert that the Arizona
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Constitution and Title 16, A.R.S., permitted the City Clerk to calculate the minimum
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5
number of valid signatures in the manner that he did. Moreover, Real Parties in

6 Interest continue to assert that the City Clerk rationally and faithfully applied the
7 procedures and methodology prescribed by the Tucson City Charter and Tucson City
8
Code. For all the reasons set forth in the July 25th Motion to Dismiss, the proper
9
number of required signatures stands at 9,241.
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11
II. PLAINTIFFS FAIL TO DEMONSTRATE THE EXISTENCE OF
12 INADEQUATE CIRCULATOR AFFIDAVITS.
13 Real Parties in Interest re-assert their arguments presented in their Motion to
14
Dismiss filed on July 25. Additionally, Real Parties in Interest reply below to specific
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arguments raised in Plaintiffs’ August 2nd Response:
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17 Plaintiffs continue to assert that 14,667 signatures should be invalidated solely
18 because the accompanying circulator affidavits “did not include the circulators’
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residence city, state, or zip code.” Pltfs’ Br. at 12; See also Compl. at ¶ 83. Real
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Parties in Interest noted in their motion to dismiss that “A.R.S. § 19-112 is
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22 unambiguous on this point: . . . Nowhere does the statute mention city, state, or zip
23 code.” Plaintiff’s response briefing does nothing to change this, and they cite no
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alternative statute that supports their desired outcome. Instead, Plaintiffs cite a
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purported online dictionary definition of the term “residence address”. Pltfs’ Br. at 12.
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 1 Dictionary definitions are appropriate only from “an established, widely respected
2 dictionary,” State v. Wise, 137 Ariz. 468, 470 (1983), or from “a widely used
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dictionary.” Files v. Bernal, 200 Ariz. 64, 66 (Ct. App. 2001). Plaintiff’s source is
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neither. Lawinsider.com is “a subscription-based contract and clause database” and

6 does not claim to be a dictionary at all. Available at:

7 http://www.lawinsider.com/about. Even during the internet age, Arizona courts do not
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consider definitions from such sources. United Dairymen of Arizona v. Rawlings, 217
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Ariz. 592, 596 (Ct. App. 2008) (consulting Webster’s New College Dictionary,
10
11 Oxford English Dictionary, and Black’s Law Dictionary); Ariz. Structural Pest
12 Control Comm'n v. Taylor, 223 Ariz. 486, 488 (Ct. App. 2010) (same). Furthermore,
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“[r]eliance on secondary interpretive tools is appropriate only if the pertinent
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language remains open to conflicting reasonable interpretations.” Piccioli v. City of
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16 Phoenix, 246 Ariz. 371, 439 (Ct. App. 2019). Here, the Legislature’s intent is clear:
17 the term “residence address” in Title 19 consists of the “street and number of affiant,
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or if no street address, a description of residence location.” A.R.S. § 19-112.
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Plaintiffs also cite a 2009 attorney general opinion to support their contention.
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21 Although the “reasoned opinion of a state attorney general should be accorded
22 respectful consideration,” such opinions are “not binding.” Ruiz v. Hull, 191 Ariz.
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441, 449 (1998). Even so, it is not clear how Plaintiffs’ proffered Attorney General
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opinion supports their preferred interpretation of Title 19. Plaintiffs draw attention to
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26 a portion of that opinion requiring that “signatures on [initiative] petitions . . . that
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 1 include only a post office address . . . must be disqualified.” Pltfs’ Br. at 12. This
2 opinion does not govern the categories of information that a circulator must provide
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on an initiative petition. First, the Attorney General opinion and the Arizona Supreme
4
5
Court case upon which it relies interpret Title 16 rather than Title 19. Ariz. Op. Att’y

6 Gen. No. I09-011 (Dec. 9, 2009) (“Signatures on petitions governed by Title 19

7 should be processed in accordance with that title.”); Jenkins v. Hale, 218 Ariz. 561,
8
565, n.3 (2008) (“Our analysis deals only with nominating petitions. Initiative,
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referendum, or recall petitions are governed by different statutes.”). Second, the
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11 Attorney General opinion deals with the adequacy of information provided by petition
12 signers, not that of circulators. Jenkins v. Hale, 218 Ariz. 561, 563 (2008) (“We must
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first determine what address information the legislature intended signers to provide on
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nominating petitions.”) (emphasis added). Finally, the Attorney General opinion deals
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16 with the adequacy of a post office address. The parties agree that the circulators
17 provided street addresses and not PO boxes. Pltfs’ Br. at 12-13 (omitting any
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discussion of circulators’ listing of PO Box addresses). Had there been PO Boxes
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among the circulator affidavits, presumably the City Clerk would have disqualified
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21 them during his initial review on July 3, 2019.
22 Because the Legislature has required city and zip code in other contexts
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(including in other elections contexts), it is reasonable to conclude that the Legislature
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did not intend to require it in this instance. For example, the Legislature required
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26 those registering to vote to include “the complete address . . . including street name
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 1 and number, apartment or space number, city or town and zip code.” A.R.S. § 16-152.
2 Thus, the Legislature “surely knows how to require” city and zip code when it wants
3
to. McGill v. Albrecht, 203 Ariz. 525, 531 (2002). The Legislature simply did not so
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require in this instance. See also Ballesteros v. Am. Standard Ins. Co. of Wisconsin,

6 226 Ariz. 345, 349 (2011) (“That the legislature included this requirement in some
7 statutes, but not in [the statute at issue], indicates that the omission of any such
8
requirement [was] intentional.”)
9
Unable to point to a specific statute, Plaintiffs theorize why the Legislature
10
11 may have intended to require city and zip code (although it failed to require it in the
12 plain language of the statute). Plaintiffs argue that without city and zip code,
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“challengers cannot effectively subpoena petition circulators.” Pltfs’ Br. at 14. A zip
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code is useful only when effectuating notice by mail, Ruiz v. Lopez, 225 Ariz. 217,
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16 221 (Ct. App. 2010), and in Arizona service by mail is the disfavored method. Ariz.
17 R.Civ.P. 4.1(k) (allowing an individual to be served by mail within state boundaries
18
only “on motion” where the “party shows that the means of service provided in Rule
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4.1(c) through Rule 4.1(j) are impracticable.”); See also Bank of New York Mellon v.
20
21 Dodev, 246 Ariz. 1 (Ct. App. 2018) (noting that alternative methods of service are
22 appropriate only where personal service “would be extremely difficult or
23
inconvenient.”). Absent a showing of extreme difficulty, Plaintiffs would need to
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serve each of the circulators by “delivering a copy . . . to that individual personally”
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26 or by “leaving a copy at that individual’s dwelling.” Ariz.R.Civ.P. 4.1 and 45;
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 1 Stanwitz v. Reagan, 245 Ariz. 344, 351 (2018). In short, a subpoena can be served
2 without knowing that person’s zip code. This is especially true where, as here, the
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circulator’s street address is accompanied by the circulator’s county of residence.
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Tucson City Code Sec. 12-112 (“the following language shall be included [within the

6 circulator affidavit]: I . . . a person who is . . . qualified to register to vote in the

7 County of ______.”) Plaintiffs do not challenge that Real Parties in Interest included
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this language on each circulator affidavit.
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III. PLAINTIFFS FAIL TO DEMONSTRATE THAT WARD NUMBERS
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ARE REQUIRED.
11
Real Parties in Interest re-assert their arguments presented in their Motion to
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13 Dismiss filed on July 25. Additionally, Real Parties in Interest reply below to specific

14 arguments raised in Plaintiffs’ August 2nd Response:

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Plaintiffs continue to seek the disqualification of 4,248 signatures because “the
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column for the petition signers’ ward number [was] left blank.” Pltfs’ Br. at 15. In
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18 their response brief, Plaintiffs agree with the Real Parties in Interest that “there is no

19 statute expressly requiring city initiative petition signers to list their ward number.”
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Id. at 15. Nevertheless, Plaintiffs assert that “it is clearly required by the form.”
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Plaintiffs cite no case law to explain why a qualified elector who otherwise complies
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23 with all applicable statutes and City Code provisions nevertheless invites

24 disqualification simply because he failed to complete a line that all parties agree
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serves no useful purpose. As described in Section II, above, the Legislature “surely
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 1 knows how to require” pieces of information from petition signers when it wants to.
2 McGill v. Albrecht, 203 Ariz. 525, 531 (2002). The parties here agree that the
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Legislature did not “expressly” require this information from signers. Nor does any
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party point to any provision of the Tucson Charter or Tucson City Code. Because

6 ordinances are interpreted using “the same general rules and principles as when
7 interpreting a statute,” City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172,
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183 (Ct. App. 2008), there is no rule of construction that would permit adding a
9
requirement that does not appear in the plain text.
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12 IV. IN THE EVENT THIS COURT FINDS THAT THE REQUIRED
13 NUMBER OF VALID SIGNATURES IS GREATER THAN 9,241, THIS
COURT SHOULD GRANT EQUITABLE ESTOPPEL AN
14 AFFIRMATIVE DEFENSE.
15
16 Real Parties in Interest continue to assert that the Tucson City Charter is not
17 contrary to state law and that the City Clerk faithfully followed all applicable laws
18
when calculating the required number of valid signatures as 9,241. Nevertheless, if
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this Court rules in favor of Plaintiffs on either Counts I, II, or III (thereby requiring
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21 some larger number of valid signatures), the Court should grant equitable estoppel as
22 an affirmative defense, hereby raised by Real Parties in Interest. All parties appear to
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agree that on December 4, 2018, the City Clerk provided to Real Parties in Interest a
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document setting forth the minimum number as 9,241, and that Real Parties in Interest
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 1 subsequently relied on this information in its seven-month-long process of gathering
2 signatures.
3
Equitable estoppel is appropriate as an affirmative defense. City of Tucson v.
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Clear Channel Outdoor, Inc., 218 Ariz. 172, 193 (Ct. App. 2008). Courts may invoke

6 equitable estoppel when “justice dictates” or when refusal to do so would “work a

7 serious injustice.” Freightways, Inc. v. Arizona Corp. Comm'n, 129 Ariz. 245, 248
8
(1981). Because the 9,241figure was presented to the Real Parties in Interest in a
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written document “bearing some considerable degree of formalism,” Valencia Energy
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11 Co. v. Arizona Dept. of Revenue, 191 Ariz. 565, 577 (1998), equitable estoppel is
12 appropriate. See also John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208
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Ariz. 532, 537 (2004) (applying equitable estoppel where the local government entity
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gave written assurances that “carried the requisite formality.”). Furthermore, equitable
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16 estoppel is appropriate because granting it in this instance would not prevent the City
17 from using a different formula in the future as to future citizen’s initiatives. See, e.g.,
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John C. Lincoln, 208 Ariz. at 538.
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Real Parties in Interest have the burden to show that “the [City] engaged in
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21 affirmative conduct . . . [that Real Parties in Interest] actually and reasonably relied on
22 . . . [and that their reasonable reliance caused them] to suffer a substantial detriment.”
23
Luther Const. Co., Inc. v. Arizona Dept. of Revenue, 205 Ariz. 602, 605 (App. 2003)
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(quoting Valencia, 191 Ariz. at 576-78). As described above, the Real Parties in
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26 Interest reasonably relied on the City’s December 2018 written assurance that 9,241
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 1 was the correct number. Had Real Parties in Interest known that the minimum number
2 of valid signatures were more than 9,241, it would have embarked on a more
3
ambitious and substantively different plan for collecting signatures dating back to
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December 2018. Thus, Real Parties in Interest can demonstrate that it “changed its

6 position . . . as a result of representations” made by the City Clerk in December 2018.

7 Truitt v. Truitt, 2012 WL 907080, at *3 (Ariz. Ct. App. Mar. 16, 2012).
8
Finally, the Real Parties in Interest actually relied on the December 2018
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written assurances because Real Parties in Interest set in motion a series of steps to
10
11 collect 9,241 valid signatures – not the 12,800 valid signatures that Plaintiffs claim is
12 necessary.
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CONCLUSION
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Real Parties in Interest respectfully request that this case be resolved in favor
15
16 of Real Parties in Interest as a matter of law.
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Dated August 8, 2019
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22 By: /s/ Paul Gattone_____________
23 Paul Gattone
Counsel for Real Parties in Interest
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 1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 8, 2019, I transmitted the attached document to
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all other counsel in this case, using electronic mail, to the following attorneys of
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record:

6
7 John G. Anderson, Esq.
Zachary L. Cohen, Esq.
8 Munger, Chadwick & Denker, P.L.C.
9 333 North Wilmot Road, Suite 300
Tucson, AZ 85711
10 JGAnderson@mcdplc.com
ZLCohen@mcdplc.com
11
Attorneys for Plaintiffs
12
Dennis P. McLaughlin, Esq.
13 Jennifer Stash, Esq.
14 Tucson City Attorney’s Office
P.O. Box 27210
15 Tucson, AZ 85726
Dennis.McLaughlin@tucsonaz.gov
16
Attorneys for City Defendants
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18 Barbara LaWall, Pima County Attorney
Civil Division
19 Daniel Jurkowitz
20 Deputy County Attorney
32 North Stone Avenue, Suite 2100
21 Tucson, Arizona 85701
Daniel.Jurkowitz@pcao.pima.gov
22
Attorney for Pima County Defendants
23
24 By: /s/ William Peard
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