Michael K.

Jeanes, Clerk of Court *** Electronically Filed *** 08/14/2013 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC2013-000137-001 DT 08/10/2013

HONORABLE LISA DANIEL FLORES

CLERK OF THE COURT S. Uppendahl Deputy

JAMES WISE JEFF LICHTER CITIZENS TO PROTECT FAIR ELECTION RESULTS v. RESPECT ARIZONA (001) WILLIAM JAMES FISCHER (001) ROBERT UNFERTH (001) MARY LOU BOETTCHER (001)

DAVID BURNELL SMITH

CHRISTOPHER B FORD WILLIAM JAMES FISCHER 125 E CORONADO RD PHOENIX AZ 85004 ROBERT UNFERTH 5110 N CENTRAL AVE #330 PHOENIX AZ 85060 MARY LOU BOETTCHER 5110 N CENTRAL AVE #330 PHOENIX AZ 85060 REMAND DESK-LCA-CCC

MINUTE ENTRY

This matter was filed March 21, 2013 as a Special Action and Writ of Mandamus and Application for Preliminary and Permanent Injunction related to Defendant Respect Arizonas circulation of recall petitions against Maricopa County Sheriff Joseph Arpaio. The Complaint sought an injunction to stop the circulation of petitions on the theory that the recall statute (ARS 19-202) was unconstitutional, and also asked the Court to declare that the statute was unconstitutional.

Docket Code 019

Form L000

Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC2013-000137-001 DT 08/10/2013

As of June 21, 2013, when the matter was assigned to this judicial officer, the May 30, 2013 deadline for the recall committee to submit its signatures had passed and the committee had been unable to gather sufficient signatures to qualify for a recall election. The request for injunctive relief became moot. However, both sides requested the Court to issue a declaratory judgment as to the constitutionality of ARS 19-202. Defendants also sought an award of attorneys fees. Both parties also withdrew their earlier requests for oral argument. Declaratory Relief The general rule is that declaratory judgment actions must be based on actual controversies. There must be a justiciable issue between the parties before a declaratory judgment will be granted. Courts will not hear cases that seek declaratory judgments that are advisory or answer moot or abstract questions. Declaratory relief should be based on an existing state of facts, not facts that may or may not arise in the future. An exception is that a court may decide a moot question or abstract proposition if the issue is one of great public importance or one that is capable of repetition yet evading review. Thomas v. City of Phoenix, 171 Ariz. 69, 74, 828 P.2d 1210, 1215 (App. 1991) (internal citations omitted). The Court finds that this issue would arise again only in a very limited circumstance the filing of a recall petition within the first six months of an elected officials re-election to an office he previously held. In the unlikely event that the situation arises again in the very near future, the issue could be raised in state court and there is no reason to believe it would evade review. The Court further finds that, even if the issue is one of public importance, the appropriate body to address it is the Legislature. There is no compelling reason for the Court to consider the constitutionality of a statute in this situation, where the issue is now moot, and the Legislature is free to consider whether to take any action with regard to the statute1. The Court declines to exercise its discretion to enter a declaratory judgment as to the constitutionality of ARS 19-202. IT IS ORDERED denying both parties requests for declaratory judgment.

Plaintiffs also apparently failed to serve the complaint on the Attorney General, President of the Senate and Speaker of the House, which is required by ARS 12-1841 when a party seeks declaratory relief that a statute is unconstitutional. This failure was raised in Defendants Response to Plaintiffs Motion for Declaratory Judgment and for Preliminary Injunction. Plaintiffs did not file a reply in support of that motion and there is nothing in docket to reflect service of any documents on the required State officers. Form L000 Docket Code 019 Page 2

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC2013-000137-001 DT 08/10/2013

Attorneys Fees and Sanctions Defendants sought sanctions and attorneys fees against Plaintiffs or their counsel pursuant to ARS 12-349 and Rule 11(a), based on Defendants assertion that Plaintiffs complaint was frivolous and an abuse of process. This matter is about to be dismissed for mootness, and not based on any finding on the merits of the parties' arguments. The Court cannot, on the parties' papers alone, find that Plaintiffs' claims were frivolous or improperly motivated. IT IS ORDERED denying Defendants' Motion for Sanctions and Attorney Fees Against Plaintiffs or Their Counsel Per ARS 12-349 and Rule 11(a), filed April 24, 2013.

Docket Code 019

Form L000

Page 3