06/17/2010 — CV2010017915 MENDEZ, JUAN 06/17/2010 HON. EDWARD O. BURKE View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Filed ***
06/21/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/17/2010
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
L. Nixon
Deputy
JUAN MENDEZ
CRAIG A MORGAN
v.
AUGUSTUS SHAW, et al.
JAMES R HUNTWORK
BARBARA A BAILEY
MARY JO FOSTER
COLLEEN CONNOR
MINUTE ENTRY
Prior to the commencement of the hearing, plaintiff’s exhibits 1 through 25 are marked
for identification.
3:02 p.m. This is the time set for Hearing re: election challenge. Plaintiff, Juan Mendez
is represented by counsel, Craig A. Morgan, Kirstin T. Eidenbach, Rhonda L. Barnes and Daniel
C. Barr. Defendant, Augustus Shaw is present on his own behalf and represented by counsel,
James R. Huntwork. M. Colleen Connor is present on behalf of the Maricopa County Board of
Supervisors and the Maricopa County Recorder. Mary Jo Foster is present on behalf of the
Secretary of State.
Court Reporter Scott Coniam is present and a recording of the proceedings is made by
audio and/or videotape.
The rule of exclusion of witnesses is invoked and the following persons are sworn:
Andrada Shaw, Peter Bergsneider, Timothy M. Palmer and Brian Kidd.
Plaintiff’s case:
Brian Kidd is sworn and testifies.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/17/2010
Docket Code 020
Form V000A
Page 2
3:14 p.m. Court stands at recess. Counsel and defendant Mr. Shaw assemble in the jury
room and view plaintiff’s exhibit 2, outside the presence of the court.
3:22 p.m. Court reconvenes with respective parties and counsel.
Court Reporter Scott Coniam is present and a recording of the proceedings is made by
audio and/or videotape.
Plaintiff’s exhibit 2 is received in evidence and played in open court.
Brian Kidd continues to testify.
Plaintiff’s exhibit 3 is received in evidence.
Mr. Kidd testifies further.
Mr. Kidd is excused.
Upon stipulation of counsel, plaintiff’s exhibits 1 and 4-10 are received in evidence.
Timothy M. Palmer is called to the stand and testifies.
Mr. Palmer is excused.
Andrada Shaw is called to the stand and testifies.
Plaintiff’s exhibits 12 and 13 are received in evidence.
Andrada Shaw testifies further.
Ms. Shaw is excused.
Peter Bergsneider is called to the stand and testifies.
Plaintiff’s exhibit 11 is received in evidence.
Mr. Bergsneider continues to testify.
Mr. Bergsneider is excused.
Plaintiff rests.
Defendants’ case:
Augustus Shaw is sworn and testifies.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/17/2010
Docket Code 020
Form V000A
Page 3
LET THE RECORD REFLECT the Court has excused the court reporter and courtroom
clerk at 5:00 p.m. and a record of the proceedings is made by audio and/or videotape.
Mr. Shaw continues to testify.
Augustus Shaw is excused.
Defendants rests.
Both sides rest.
Closing arguments are presented.
IT IS ORDERED the court shall take this matter under advisement.
5:14 p.m. Hearing concludes.
/ s / HON. EDWARD O. BURKE
JUDICIAL OFFICER OF THE SUPERIOR COURT
06/18/2010 — CV2010017915 MENDEZ, JUAN 06/18/2010 HON. EDWARD O. BURKE View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
06/21/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/18/2010
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
L. Nixon
Deputy
JUAN MENDEZ
CRAIG A MORGAN
v.
AUGUSTUS SHAW, et al.
JAMES R HUNTWORK
BARBARA A BAILEY
MARY JO FOSTER
COLLEEN CONNOR
MINUTE ENTRY
The court has had plaintiff’s complaint for special action and injunctive relief pursuant to
A.R.S. § 16-351 challenging Augustus H. Shaw IV’s (“SHAW”) nominating petitions to run for
the Republican nomination for the Arizona House of Representatives for Legislative District 17
under advisement and enters the following rulings.
Plaintiff’s request for injunctive relief is GRANTED.
Facts
The following facts were established at the hearing:
1.
For more than three years, SHAW has owned a house at 7920 S. Stephanie Lane,
Tempe, Arizona with his wife, Andrada Shaw which is in Legislative District 20.
(the “District 20 House”).
2.
SHAW’s father-in-law, Peter Bergsneider and his mother-in-law own a house at
5088 E. Laguna Drive, Tempe, Arizona which is in Legislative District 17 (the
“District 17 House”). The two houses are 10 to15 miles apart.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/18/2010
Docket Code 019
Form V000A
Page 2
3.
On June 5, 6, and 7, 2010, Brian Kidd, a private investigator conducted a
surveillance of SHAW and presented a DVD of portions of his surveillance
which was received in evidence as Exhibit 2. The DVD shows that SHAW spent
the weekend coming and going from the District 20 House. Mr. Kidd reported
that during the entire surveillance he never saw SHAW enter or leave the District
17 House on Laguna Drive.
4.
SHAW’s District 20 House is not now and has never been placed on the market
for sale.
5.
On Monday, June 7, 2010, at 9:00 p.m. Mr. Kidd called the District 20 House
and asked to speak to SHAW who was called to and came to the phone
identifying himself as “Augustus.” This testimony was not challenged.
6.
Andrada Shaw and SHAW have been married for 10 years and have two
children, ages 6 and 3. They are not legally separated and there are no divorce
proceedings pending.
7.
Mrs. Shaw testified that SHAW is at home with her at the District 20 House four
to five days a week when they are not at their cabin and that he sleeps at the
District 20 House five to seven nights a week.
8.
The Shaws’ 2008 joint income tax return was filed using the District 20 House
address.
9.
The parties stipulated that SHAW’s business address at Shaw & Lines, LLC is
7920 S. Stephanie Lane, Tempe, Arizona, the District 20 House and further
stipulated that all utilities for the District 20 House are addressed to and paid by
SHAW.
10.
Mr. Bergsneider testified that a couple of weeks before SHAW decided to run for
the State House of Representatives; SHAW asked him if he could use his house
as a legal residence to run for office from. He testified in part:
“THE COURT:
… do you consider Mr. Shaw a resident of your home?
THE WITNESS: Yes.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/18/2010
Docket Code 019
Form V000A
Page 3
THE COURT: How long has he been a resident?
THE WITNESS: Since right before he decided to run for office.
THE COURT: Which office?
THE COURT: For – he was thinking of running for state house of
representatives.
THE COURT: This election that we’re involved with?
THE WITNESS: Yes.
THE COURT: How much before he decided to run?
THE WITNESS: He – it was probably a couple of weeks.
THE COURT: How long ago was that, sir?
THE WITNESS: I don’t remember. I just remember that he was thinking of
running and asked me about you know running for office.
THE COURT: What did he say about it?
THE WITNESS: He said that he wanted to run for office and he wanted to
represent my district.
THE COURT: And?
THE WITNESS: And asked me if he could use my house for his legal residence
and I told him that I already thought that he resided there as family. When he
moved back from Omaha, my daughter and him moved into my house for close
to two months while they were looking for a place and at that time he got all his
mail there also, so –
THE COURT: How many nights a week does Mr. Shaw spend at your house?
THE WITNESS: A couple of nights. He comes and goes. I don’t pay attention to
him as he has a lot different – I know he works late. I normally go to bed at
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/18/2010
Docket Code 019
Form V000A
Page 4
10:30 so I don’t pay much attention to his comings and goings. He has a key.”
(trial transcript: p. 59, l. 21 to p. 59, l. 21).
Conclusions of Law
The court finds that SHAW is a resident of the District 20 House and not a qualified
elector in District 17. Therefore defendants are enjoined from allowing SHAW’s name to
appear on the Republican Party primary ballot for the State House of Representatives for
Legislative District 17.
A.R.S. § 16-101(B) defines a “resident” as:
“… an individual who has actual physical presence in this state, or for the purpose
of a political subdivision actual physical presence in the political subdivision, combined
with intent to remain.”
A person’s statement as to his place of residence in an affidavit of registration to vote is
not conclusive, but constitutes strong proof of the correctness of the residence and post office
address given therein. Kauzlarich v. Board of Trustees of Oak Creek School District Number 16,
Yavapai County, 78 Ariz. 267, 270-271, 278 P.2d 888 (1955).
A.R.S. § 16-593(A) states:
“The election board, in determining the place of residence of a person, shall be governed
by the following rules, so far as applicable:
1.
The residence of a person is that place in which his habitation is fixed and to
which he has the intention of returning when absent.
7.
The place where a person's family permanently resides is his residence, unless he
is separated from his family, but if it is a place of temporary establishment for his
family, or for transient purposes, it is otherwise.”
The above rules have been interpreted by the Attorney General as being the general rule
for determining residence where ever that may be an issue, even though the rules in that section
apply specifically only to voters. Op. Att. Gen. No. 71-15-L.
In reaching its decision, the court reasons as follows.
SHAW’s testimony regarding the reason for staying at his in-laws’ house i.e. his son’s
condition was compelling. Because it was so compelling, the court would think that his father-
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/18/2010
Docket Code 019
Form V000A
Page 5
in-law would have known of this reason and have been able to articulate it while on the stand
when asked by the court. He did not.
The testimony of Mrs. Shaw that SHAW slept at their home five to seven nights a week
was very persuasive and indicates that the District 20 House is the residence to which SHAW
intends to and regularly returns when absent.
The mere fact of a voter’s registration and driver’s license addresses, although strong,
does not alone compel the court to rule for SHAW. id. Kauzlarich.
For the above reasons the court finds for plaintiff.
Plaintiff’s Amended Complaint also raised the issue that SHAW failed to qualify for the
Republican Primary because he collected his signatures before forming a candidate campaign
committee in violation of A.R.S. § 16-903, which was neither argued nor was any evidence
presented concerning it.
Had such evidence been presented, the court believes that A.R.S. § 16-903(G) provides
the remedy for a violation of that section i.e. a civil penalty. Compare that with A.R.S. § 19-114
which states:
“…no person other than a person who is qualified to register to vote … may
circulate an initiative or referendum petition and all signatures verified by any
such person shall be void and shall not be counted …”
This section indicates that the legislature, had it wanted to, could have provided in § 16-
903 that any signatures collected before a candidate campaign committee was formed were void.
Because the legislature did not do so, the court would probably not have found that SHAW’s
petitions were invalid for that reason had the question been presented to the court.
/ s / HON. EDWARD O. BURKE
JUDICIAL OFFICER OF THE SUPERIOR COURT
06/23/2010 — CV2010017915 MENDEZ, JUAN 06/23/2010 HON. EDWARD O. BURKE View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/24/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
06/23/2010
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
L. Nixon
Deputy
JUAN MENDEZ
CRAIG A MORGAN
v.
AUGUSTUS SHAW, et al.
JAMES R HUNTWORK
BARBARA A BAILEY
MARY JO FOSTER
COLLEEN CONNOR
MINUTE ENTRY
The court has received and reviewed Defendant, Augustus Shaw’s Motion to Dismiss
Portions of Verified Complaint which was misfiled and sent to Judge Rea’s division in error.
Defendant’s Motion to Dismiss Portions of Verified Complaint is DENIED. The motion
was misfiled but is now denied as moot.
07/08/2010 — CV2010017915 MENDEZ, JUAN 07/08/2010 HON. EDWARD O. BURKE View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/09/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
07/08/2010
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
L. Nixon
Deputy
JUAN MENDEZ
CRAIG A MORGAN
v.
AUGUSTUS SHAW, et al.
JAMES R HUNTWORK
BARBARA A BAILEY
COLLEEN CONNOR
MARY JO FOSTER
MINUTE ENTRY
On June 23, 2010, this division received defendant, Augustus Shaw’s Motion to Dismiss
Portions of Verified Complaint which was misfiled and sent to another division. The court
enters the following ruling.
Defendant’s Motion to Dismiss Portions of Verified Complaint is DENIED as moot.
11/19/2019 — CV2010017915 MENDEZ, JUAN 11/19/2019 EXHIBITS UNIT View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
12/02/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-017915
11/19/2019
Docket Code LED
Form EXHCVREL
Page 1
CLERK OF THE COURT
EXHIBITS UNIT
J. Baldon (Exh)
Deputy
JUAN MENDEZ
CRAIG A MORGAN
v.
AUGUSTUS SHAW, et al.
JAMES R HUNTWORK
BARBARA A BAILEY
MARY JO FOSTER
COLLEEN CONNOR
NOTICE REGARDING DISPOSITION OF EXHIBITS
The Clerk of the Superior Court is in possession of exhibits in the above captioned case.
This case has been reviewed pursuant to Rules of Court Criminal Procedure, Rule 28.1; Superior
Court - Local Rules of Maricopa County, Rule 2.8(d); Rules of Civil Appellate Procedures, Rule
11(a)(6); and is not subject to further modification.
The exhibits should be claimed at the South Court Tower, Exhibits, 175 W. Madison, 4th
Fl., Phoenix AZ 85003, Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m.
If the exhibits need to be retained, a request must be made in writing within ten (10) days of the
mailing of this notice.
The subject exhibits will not be eligible for release until 12/16/2019 and must be
collected by 02/03/2020 or the exhibits shall be disposed. The following party(ies) have exhibits
that need to be collected: Plaintiff. Exhibits may only be released to the party which presented
the exhibits. For further verification please contact the Exhibits Unit at 602-372-2284.
This notice serves as the only written notification regarding disposition of these exhibits.
