Chris DeRose, Clerk of Court *** Electronically Filed *** 09/06/2018 8:00 AM SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 CLERK OF THE COURT L. Stogsdill Deputy HONORABLE CHRISTOPHER COURY ROBERT MCGEE KORY A LANGHOFER v. MARK SYMS, et al. JEREMY PHILLIPS MARK D GOLDMAN COLLEEN CONNOR KARA MARIE KARLSON JOSEPH KANEFIELD RULING The Court has reviewed and considered the following: A. Plaintiff’s Motion to Amend the Judgment, filed June 28, 2018; B. Plaintiff’s Notice of Filing Proposed Form of Amended Final Judgment, filed June 28, 2018; C. Defendant’s Response in Opposition to Plaintiff’s Motion to Amend the Judgment, filed July 2, 2018; D. Plaintiff’s Motion for Attorneys’ Fees and Costs, dated July 12, 2018; E. Statement of Costs, dated July 12, 2018; E. Plaintiff’s Reply in Support of Motion to Amend Judgment, filed July 16, 2018; Docket Code 019 Form V000A Page 1 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 F. Defendant’s Initial Response to Plaintiff’s Motion for Costs, filed July 19, 2018; G. Maricopa County Defendants’ Response Opposing Plaintiff’s Motion for Attorneys’ Fees, If Asserted Against the Maricopa County Defendants, filed July 18, 2018; H. Plaintiff’s Reply in Support of Motion for Attorneys’ Fees and Costs, dated July 26, 2018; I. Defendant Syms (sic) Response to Motion for Attorney Fees and Costs, dated July 26, 2018; J. Plaintiff’s Separate Reply In Support of Motion for Attorneys’ Fees and Costs, filed August 6, 2018; K. Defendant Syms’ Motion to Strike “Plaintiff’s Separate Reply in Support of Motion for Attorneys’ Fees and Costs,” and proposed form of Order, filed August 9, 2018. L. Plaintiff’s Response to Defendant Syms’ Motion to Strike, filed on August 13, 2018. Three issues are pending for the Court’s determination: (i) whether Plaintiff’s Separate Reply In Support of Motion for Attorneys’ Fees and Costs, filed August 6, 2018, is timely; (ii) whether an award of attorneys’ fees and costs is warranted; and (iii) the form of final judgment. Oral argument would not be helpful. I. TIMELINESS OF PLAINTIFF’S SEPARATE REPLY. Defendant contends that Plaintiff’s Separate Reply In Support of Motion for Attorneys’ Fees and Costs should be stricken as untimely. THE COURT FINDS that there is no merit to Defendant Syms’ argument for the following reasons: 1. Defendant Syms (sic) Response to Motion for Attorney Fees and Costs, was filed on July 26, 2018. It was delivered to counsel for Plaintiff by U.S. Mail and e-mail, pursuant to Rule 5(C)(2)(c) and (d), Arizona Rules of Civil Procedure. Docket Code 019 Form V000A Page 2 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 2. Without considering the method of service, Plaintiff had five days – or until August 2, 2018 – to file a Reply. Rule 7.1(a)(3), Arizona Rules of Civil Procedure. The date Defendant Syms filed his Response (July 26) was excluded, as were the Saturday and Sunday of the intervening weekend (August 3 and 4). Rule 6(a)(1) and (2), Arizona Rules of Civil Procedure. 3. Defendant Syms’ decision to serve counsel for Plaintiff by U.S. mail and email afforded Plaintiff an additional five (5) calendar days after “the specified period would otherwise expire.” Rule 6(c), Arizona Rules of Civil Procedure. Consequently, the deadline for Plaintiff to file a Reply was extended to August 7, 2018. 4. Plaintiff’s Separate Reply In Support of Motion for Attorneys’ Fees and Costs was filed on August 6, 2018. It, therefore, is timely. Good cause appearing, IT IS ORDERED denying Defendant Syms’ Motion to Strike “Plaintiff’s Separate Reply in Support of Motion for Attorneys’ Fees and Costs,” filed August 9, 2018. II. ATTORNEYS’ FEES AND COSTS Plaintiff seeks an award of attorneys’ fees and costs only from Defendant Syms. THE COURT FINDS as follows: 1. Plaintiff incurred $733.00 in taxable costs. A.R.S. §12-332. 2. Defendant Syms’ endeavors to justify his defense in this case by focusing on the review conducted by the Maricopa County Recorder’s Office (“MCRO”). MCRO was inundated with election challenges in June 2018 – it had over 45 such challenges – and only had the ability to conduct a “first pass check” of the signatures submitted by Defendant Syms. After identifying the challenged signatures that were invalid, and given the compressed timetables, MCRO was unable to conduct verification checks. Maricopa County Recorder Adrian Fontes testified about how the number of ballot challenges in this contentious election cycle taxed the resources of his office. Defendant Syms’ questioning the sufficiency of MCRO’s “first pass check” might represent a facially plausible argument, in the abstract, if there was a reasonable, educated and good faith basis to believe a sufficient number of valid signatures had been submitted on his Nominating Petitions. Docket Code 019 Form V000A Page 3 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 3. An evaluation of whether Defendant Syms’ defense here was facially plausible or groundless cannot occur in a vacuum. Rather, the propriety of his defense needs to be evaluated within the context of the facts of this case: a. Despite Defendant Syms’ protests that MCRO’s review was completed only one day before the hearing, Defendant Syms was on notice of what signatures were challenged, and why, for much longer. The Complaint was filed on June 11, 2018, and it identified with particularity each of the challenged signatures, including hundreds of signatures specifically alleged to be forgeries. [Complaint, ¶ 18, and Exhibit A attached thereto] Defendant attempted to rehabilitate less than 15 of these individuals. b. Defendant Syms was on notice of the allegation that hundreds of signatures on his Nomination Petitions were obtained by a circulator who falsely called himself “Anthony Garcia” and who forged Mr. Garcia’s signature and address. [Complaint ¶¶ 39-46 and Exhibit “A” attached thereto] Mr. Garcia credibly testified at the hearing that he did not circulate any of Defendant Syms’ Nomination Petitions. Defendant Syms provided no evidence to contradict this. c. Defendant Syms was on notice that his Nomination Petitions contained forgeries and duplicate signatures. Perhaps the most notable forgery was the signature of the mother of Arizona’s Attorney General. Defendant Syms provided no evidence to dispute this. d. The sheer number of problematic signatures cannot be ignored. Plaintiff challenged 1,675 signatures. The Court upheld Plaintiff’s challenge to 1,665 of these 1,675 signatures, determining them to be invalid. Rephrased, the Court ruled in Plaintiff’s favor on 99.4% of the signatures that Plaintiff had challenged. e. The number of invalid signatures submitted by Defendant Syms also must be considered in light of the number of valid signatures required and actually submitted. (A showing that 1,665 signatures were invalid is significantly different in a case where 2,000 signatures are required as compared to another case where 20,000 signatures are required.) Here, Defendant Syms needed 1,250 valid signatures for his name to appear on the ballot. He submitted 2,158 total signatures, of which 1,665 signatures were invalid – a notable 77% of the total number of signatures submitted by Defendant Syms. Docket Code 019 Form V000A Page 4 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 f. 09/05/2018 From a larger perspective, Defendant Syms submitted only 493 valid signatures of the required 1,250 valid signatures required by law – a mere 41% of the requirement. 4. Simply put, within the context of this case, Defendant Syms’ defense was implausible and unreasonable. Defendant Syms was nowhere close to submitting the legally required number of valid signatures. Faced with these facts, no rational candidate in Defendant Syms’ position could reasonably expect that he or she had submitted a sufficient number of signatures to meet the legal requirement for placement on the November 2018 ballot. Moreover, no evidence was presented that suggested that any further review or validation process would have made a material difference. Defendant Syms knew this, or had good reason to know this. 5. Defendant Syms ignored and consciously disregarded the likelihood that he had submitted a significant number of invalid signatures, and Plaintiff incurred attorneys’ fees, costs and expenses as a result. Although Defendant Syms testified that he had no actual knowledge about the number of fraudulent signatures that he had submitted, there is scant evidence that he took any reasonable steps to educate himself about the authenticity of the signatures on his Nominating Petitions, either before submission, or after fraud had been alleged by Plaintiff. The lack of due diligence by Defendant Syms in this case is particularly troubling. Although candidates are free to set the rates of compensation for signature collectors in accordance with Arizona law, Defendant Syms’ campaign was “paying a lot of money” to his Nomination Petition circulators. This fact, coupled with the similarity of handwriting, the consecutive addresses, and the large number of signatures purportedly obtained by one signature gatherer in one day, are reasons that support the conclusion that Defendant filed his Nomination Petitions without regard for the risk of forged or fraudulent signatures. Thereafter, Defendant Syms conducted little to no meaningful review or re-assessment of the validity and legal sufficiency of the signatures he had submitted on his Nomination Petitions either (a) when the facts set forth in the Complaint were asserted against him, (b) when faced with allegations from the media about possible forgery, or (c) when confronted by the fact that the signature of the mother of Arizona’s Attorney General had been forged. Defendant essentially played “ostrich” and pressed on toward the hearing. Defendant Syms’ approach was perhaps best articulated by his attorney’s response to Plaintiff’s counsel when confronted with these deficiencies: “our succinct and unambiguous response to you is, in the words of General McAullife (sic) at Bastogne, “Nuts”.” [Plaintiff’s Separate Reply In Support of Motion for Attorneys’ Fees and Costs, filed August 6, 2018, Exhibit B, p. 4 (italics in original)] 6. The Court cannot overlook the context within which all of this occurred. Statutorily, the time periods for bringing and adjudicating Nomination Petition challenges are exceptionally compressed. The litigiousness of the 2018 election cycle taxed resources – both MCRO’s resources and the resources of the Judicial Branch in Maricopa County – like never before. The issues involved in election challenges touch the core of our nation’s democracy – the Docket Code 019 Form V000A Page 5 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 right of self-governance – and it is essential for our system of government to ensure that the Judicial Branch is available to afford due process and resolve election challenges on an expedited basis. When hearing these cases, just as the Court must remain mindful to not judicially create a chilling effect on a citizen’s legitimate right to appear as a candidate on the ballot, so too must the Court fairly and vigilantly enforce the law to protect Arizona elections from charlatans seeking to cozen their way onto the ballot. Our system of government demands nothing less. 7. An award of fees is mandatory under A.R.S. § 12-349 upon a showing that a party defended a claim without substantial justification, or defended a claim primarily for delay and harassment, or unreasonably expanded and delayed the proceedings. 8. Defendant Syms defended Plaintiff’s claims without substantial justification. 9. Defendant Syms defended Plaintiff’s claims primarily for delay and harassment. 10. Defendant Syms unreasonably expanded and delayed the proceedings. 11. Defendant Syms recklessly filed a substantial number of invalid signatures. 12. The record is incomplete as to whether Defendant Syms engaged in an abuse of discovery. Without question, the rhetoric of certain counsel for Defendant Syms was caustic and unprofessional. Professionalism concerns, however, can be addressed by the State Bar of Arizona. No discovery sanctions are warranted pursuant to Rule 37, Arizona Rules of Civil Procedure based on the records before the Court. 13. A.R.S. § 16-351.01 provides in pertinent part: “For any challenge of a candidate’s nominating petition for which the county recorder . . . is required to conduct signature verification and to which the county recorder . . . is a party, the court may award to the county recorder . . . the reasonable expenses incurred in signature verification if the court determines . . . that the candidate who submitted the petition knowingly or recklessly filed a substantial number of invalid signatures.” The Court cannot contemplate a clearer case justifying a discretionary award of expenses to MCRO than the present matter. However, the Court does not believe it is legally authorized to award such expenses to MCRO given the plain language of A.R.S. § 16-351.01. The only evidence before the Court is the testimony of Maricopa County Recorder Fontes that MCRO is not required to conduct signature verification in these types of cases, but instead conducts such verifications as a courtesy. Docket Code 019 Form V000A Page 6 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2018-008775 09/05/2018 If subsequently determined on appeal that MCRO is required to conduct signature verification, the Court will consider awarding expenses to MCRO at a later date, if requested. 14. Plaintiff incurred attorneys’ fees in the amount of $45,000 to Ballard Spahr LLP and in the amount of $7,500 to Statecraft. Each of these arrangements was a “flat fee” billing arrangement. Ballard Spahr has documented its attorneys’ fees and provided copies of its bills, which evidence that, had Plaintiff’s been charged hourly, reasonable attorneys’ fees in excess of $55,000 would have been expended on this matter. Statecraft did not keep hourly records of the time incurred by its attorneys. On balance, and in light of the complexity of the matter, billing rates in Phoenix, the experience and education of the professionals involved, the time period involved, the skill of the attorneys, and the remaining factors set forth under Arizona law, Plaintiff incurred reasonable attorneys’ fees in the amount of $45,000 in this matter. 15. With respect to expenses and damages, Plaintiff incurred $9,578 for the preparation of “spreadsheets summarizing defects in the nomination petition” of Defendant Syms. [Plaintiff’s Motion for Attorneys’ Fees and Costs, dated July 12, 2018, at Exhibit “B”, ¶3]. Whether construed as “double damages” or as expenses, the Court believes that $5,000 of this amount are justifiably paid by Defendant Syms. A.R.S. § 12-349. Good cause appearing, IT IS ORDERED awarding Plaintiff attorneys’ fees and double damages in the total amount of $50,000.00, and taxable costs in the amount of $733.00. III. FORM OF JUDGMENT THE COURT FINDS that the form of judgment recognizing Rule 54(c), Arizona Rules of Civil Procedure is warranted. THE COURT FURTHER FINDS that Defendant’s objections lack merit. Good cause appearing, IT IS ORDERED granting in part Plaintiff’s Motion to Amend Judgment. Because no further matters remain pending in this case, a final judgment pursuant to Rule 54(c), Arizona Rules of Civil Procedure, is entered. Docket Code 019 Form V000A Page 7