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Grounds for appeal: Affidavits defective

Published/Last Modified on Thursday, Oct 25, 2007 - 05:13:00 am MST

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To the Editor:

The Bisbee City Council recently decided to appeal a court decision that it should accept petitions requesting a referendum on ordinances passed by the council last year. Some are spinning this appeal as nothing more than an attempt to crush citizen input. This begs for a reply. I am but a mere citizen, but please let me try.

The true objective of the appeal is not to silence voters, but to uphold the rule of law and the integrity of the referendum process.

Arizona law requires that “the person before whom the signatures and addresses were written on the signature sheet shall, on the affidavit form pursuant to this section, subscribe and swear before a notary public that each of the names on the sheet was signed and the name and address were printed in the presence of the elector and the circulator on the date indicated.”

Jeff Harris’s affidavits were defective because he knew he altered addresses on the petition signature sheets.

In his conclusions of law, Judge Wallace Hoggatt found that, “[a]lthough a circulator’s unauthorized addition or modification of a printed name or address renders the relevant entry void, no authority has been presented to this court to enable it to conclude that an entire petition is void because certain entries contained on the petition are void.”

The grounds for an appeal arise because, although an entire petition is not void when certain entries are void, in this case, the petitions should be void because of the false affidavit certifications by the circulator.

Case law is very clear on this matter — petition sheets containing defective affidavits of circulators are invalid. In the case Brousseau v. Fitzgerald, 1984, the Arizona Supreme Court found, “[w]e hold 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.”

Some will say that allowing the will of the people to be expressed is more important than fulfilling mere technical procedures. But Mr. Harris’s action was no mere error. Falsely certifying a petition is a serious matter involving more than a technicality. It’s unfortunate that 300 signers should be punished for Mr. Harris’s actions, but the surest way to keep petitions free from fraud is to let it be known that any taint of fraud will wholly invalidate them.

Eric C. Fahrner

Bisbee and Tempe

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Eric C. Fahrner wrote on Nov 11, 2007 11:49 PM:

" Mike Jackson is confusing the case of Brousseau v. Fitzgerald, 1984, with Moreno v. Jones, 2006. And as for 'Bad Spin's' commentary, yes, we are all of course aware of the trial court's various and several findings; it is precisely because those findings, and the informed belief that they are probably faulty, that an appeal is being pursued. "

Observer wrote on Oct 31, 2007 1:44 PM:

" Mr. Jackson, you're engaging in a distracting ad hominem attack in an effort to create a red-herring. So let's get back on track: the core issue here is the defective affidavit which the petitioner rendered when he turned in the petition; that's what I called 'tinkering.' This is a simple case that Hoggatt mishandled, for obscure reasons, which I can only attribute to his attempt to meddle with the strict provisions of the law. Let's quit being 'lawyerly cute' and instead render rulings based on the law and the facts--not on your own or on behalf of another's agenda. "

Mike Jackson wrote on Oct 30, 2007 4:46 PM:

" Yes, need to wade through the comments of people who know how to read a statute. The law says that the city clerk can't strike every petition because some of them are bad. That's the law. The city ignored it before, and is ignoring it on appeal. The city should try following it. And people who find the plain words of statutes too obscure to understand are disqualifying themselves as serious observers. "

Observer wrote on Oct 30, 2007 7:56 AM:

" The two comments below are examples of tortured hair-splitting of lawyers. No need to try to wade through the obscurities presented in their comments. Fahrner is absolutely correct: The law is the law, which in this case, defines a petition invalid if their promulgators tinker with the input. Hoggatt's erroneous finding is a good example of today's trend among judges to exceed their authority by applying 'creative thinking.' In this case, the city would be negligent not to challenge the judge's creative finding. A successful appeal will remind Hoggatt to stick to the letter of the law. "

Mike Jackson wrote on Oct 29, 2007 9:51 AM:

" Judge Hoggatt did what the law says: remove petitions with bad affidavits, and signatures with altered addresses? Why is Fahrner nagging the judge to do more than the law says? ---- Also, in Fahrner's Brousseau case, signatures from Yuma were certified by a person who was in Phoenix at the time. That's no precedent for the present case. The city may well commit frivolous conduct if it cites Brousseau. ---- Finally, if Fahrner wants to uphold the rule of law, why not start by making the town clerk obey the law? "

Bad Spin wrote on Oct 25, 2007 7:13 PM:

" Your argument is specious. You try to make it look like the aggrieved party (who won in court) is somehow guilty. Contrary to your assertions, the Court found that the affidavits were *not* false. What you completely ignore is that the Court found that the former Bisbee City Clerk exceeded her legal authority -- just as the aggrieved party alleged from the start. The City abused its power by "crushing citizen input" (as you put it) and--as a result--*lost* in Superior Court the challenge mounted against this abuse. "