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BARBARA LAWALL PIMA COUNTY ATTORNEY CIVIL DIVISION Daniel Jurkowitz, SBN 018428 Deputy County Attorney 32 North Stone Avenue, Suite 2100 Tucson, Arizona 85701 Telephone: 520-740-5750 [email protected] Attorney for Pima County Defendants
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Ron Barber for Congress; Lea Goodwine-
Cesarec, Laura Alessandra Breckenridge,
Josh Adam Cohen,
Plaintiffs,
vs.
Ken Bennett, in his official capacity as
Secretary of State of the State of Arizona;
et al.
Defendants.
No. 4:14-CV-02489-CKJ
Pima County Defendants’ Answer to
Complaint
(The Hon. Cindy K. Jorgenson)
Defendants Pima County Board of Supervisors, Ally Miller, Ramón Valadez,
Sharon Bronson, Ray Carroll, and Richard Elías (hereinafter “Pima County Defendants”)
answer Plaintiffs’ Verified Complaint for Injunctive and Declaratory Relief (“Plaintiffs’
Complaint’) as follows:
Introduction
1. With respect to the allegations contained in paragraph 1 of Plaintiffs’
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Complaint, Pima County Defendants admit that the initial returns for the 2014 election
for United States House of Representatives in Arizona’s second congressional district
have Martha McSally leading Ron Barber by 161 votes.
2. With respect to the allegations contained in paragraph 2 of Plaintiffs’
Complaint, Pima County Defendants admit that, pursuant to applicable Arizona law, the
133 contested ballots have not been counted. Pima County Defendants deny that under
federal and state law, that these ballots must be counted. Pima County Defendants are
without sufficient knowledge to form a belief as to the truth of the remaining allegations,
and therefore deny them.
3. With respect to the allegations contained in paragraphs 3, 4, 5, 6, 7, and 8 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations.
Parties
4. With respect to the allegations contained in paragraphs 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, and 23 Pima County Defendants admit the allegations.
Jurisdiction and Venue
5. With respect to the allegations contained in paragraphs 24, 25, 26, 27, 28, and
29, Pima County Defendants admit the allegations.
Factual Allegations
A. The November 4, 2014 General Election
6. With respect to the allegations contained in paragraphs 30 and 31 of Plaintiffs’
Complaint, Defendants admit the allegations.
B. Overview of The Post-Election Canvass Process
7. With respect to the allegations contained in paragraphs 32, 33, and 34 of
Plaintiffs’ Complaint, Pima County Defendants admit the allegations.
8. With respect to the allegations contained in paragraph 35 of Plaintiffs’
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Complaint, Pima County Defendants admit that they had just completed the process of
canvassing the election returns as of the date of the Complaint. Pima County Defendants
deny the remaining allegations contained in paragraph 35 of Plaintiffs’ Complaint.
C. Overview of Arizona’s Early Voting System
36. With respect to the allegations contained in paragraphs 36 and 38 of
Plaintiffs’ Complaint, Pima County Defendants admit the allegations.
37. With respect to the allegations contained in paragraphs 37, 39 and 40 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,
Affidavit of Christopher J. Roads].
D. Overview of Arizona’s Provisional Ballot System
38. With respect to the allegations contained in paragraphs 41, 42, and 43 of
Plaintiffs’ Complaint, Pima County Defendants admit the allegations.
39. With respect to the allegations contained in paragraph 44 of Plaintiffs’
Complaint, Pima County Defendants admit that if the voter has moved to a different
residence within the county but outside the precinct, the election official “shall direct” the
voter to the polling place for the new address. A.R.S. § 16-583(A). Pima County
Defendants admit the remaining allegations within paragraph 44. [See Exhibit A,
Affidavit of Christopher J. Roads].
40. With respect to the allegations contained in paragraphs 45 and 46 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations.
E. Election Officials Have Wrongfully Rejected a Substantial Number of
Early and Provisional Ballots
41. With respect to the allegations contained in paragraph 47 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations, and affirmatively assert that
the challenged ballots were not counted in accordance with Arizona law. [See Exhibit A,
Affidavit of Christopher J. Roads].
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1. Voters Who Moved Within Pima County and Nonetheless Had Their
Provisional Ballot Rejected.
42. With respect to the allegations contained in paragraph 48 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations and affirmatively assert that
voters who have moved, but did not update their residence address, must go to the polling
place for their new address to vote a provisional ballot at the new polling location. A.R.S.
§§ 16-135(B) and 16-584(C). [See Exhibit A, Affidavit of Christopher J. Roads].
43. With respect to the allegations contained in paragraph 49 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
44. With respect to the allegations contained in paragraph 50 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
45. With respect to the allegations contained in paragraph 51 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because Ms. Pasch is registered
to vote at 1206 N. Howard Blvd in Tucson and has been since August 15, 2014. She did
not request an early ballot in this election and therefore would have received three
mailings indicating the correct polling place for that address. That address is within the
boundaries of precinct/voting area 075. Ms. Pasch went to the polling place assigned to
voting area 078 and voted by provisional ballot since she was not on a voter list in that
precinct. The provisional ballot form indicates that her residence address is 1206 N.
Howard Blvd and that she has a mailing address of 2317 E. 3rd Street in Tucson. The
provisional ballot was invalidated since she had not moved and was in the wrong polling
place. Ms. Pasch’s declaration indicates that she moved to the 2317 E. Third Street
address within 30 days of signing the declaration. The Third street address is within the
boundaries of precinct/voting area 078. Had Pasch completed the provisional ballot form
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indicating that her residence address was the Third Street address, her provisional ballot
would have counted. However, she completed the form indicating that the Third Street
address was only a mailing address and that her residence address had remained at the
Howard Blvd address. [See Exhibit A, Affidavit of Christopher J. Roads].
46. With respect to the allegations contained in paragraph 52 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
2. Voters Who Signed Both Their Registration Form and Their Ballot
Affidavit and Nonetheless Had Their Ballot Rejected Due to a
Purported “Signature Mismatch”
47. With respect to the allegations contained in paragraphs 53 and 54 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,
Affidavit of Christopher J. Roads].
48. With respect to the allegations contained in paragraph 55 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because the early ballot was
received by the Recorder’s Office on Election Day, November 4, 2014. Her signature
could not be verified. On November 5, 2014, a message was left on the voice mail for
the contact phone number on the early ballot affidavit. A letter was also mailed to her on
November 5, 2014. A message was received in the Recorder’s Office voice mail system
on November 7, 2014, at approximately 9:27 p.m. On November 8, 2014, the Recorder’s
office attempted to contact Ms. Breckenridge by phone again and again left a message.
No further contact was received from the voter before close of business on November 9,
2014. The declaration submitted by Breckenridge does not indicate any other attempts
she made to contact the Recorder’s Office. [See Exhibit A, Affidavit of Christopher J.
Roads].
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49. With respect to the allegations contained in paragraphs 56 and 57 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,
Affidavit of Christopher J. Roads].
50. With respect to the allegations contained in paragraphs 58 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations as all staff of the Pima County
Recorder’s Office assigned to signature verification tasks are required to attend training
from a Forensic Document Examiner before they conduct the signature comparison. Pima
County Defendants further affirmatively assert that two signature verification workers
and the problem ballot team review any signature comparison issues. [See Exhibit A,
Affidavit of Christopher J. Roads].
3. Unsigned Early and Provisional Ballots
51. With respect to the allegations contained in paragraph 59 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because with respect to
unsigned early ballot affidavits, it is the Pima County Recorder’s Office procedure to
return any unsigned early ballot affidavits (with the ballots sealed inside) to the voter so
that the voter can sign the affidavit provided there is sufficient time prior to Election Day
for the voter to sign and return the ballot. If there is insufficient time prior to the election
for return by mail, the staff will attempt to call the voter to either have them come in
person to sign the affidavit or to have them go to the polls on Election Day to vote by
provisional ballot. With respect to unsigned provisional ballots, the State of Arizona
Elections Procedures Manual (June, 2014) states at page 185-186:
“The [provisional] ballot shall remain unopened and shall not be counted if:
• the voter is not registered to vote, or
• the voter is in the wrong precinct/voting area, or
• the voter has not produced sufficient identification, or
• the voter’s signature does not match the signature on his/her voter
registration form, or
• the voter voted their early ballot.”
(emphasis in original) [See Exhibit A, Affidavit of Christopher J. Roads].
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52. With respect to the allegations contained in paragraph 60 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because if there is insufficient
time prior to the election for return by mail, the Pima County Recorder’s staff will
attempt to call the voter to either have them come in person to sign the affidavit or to
have them go to the polls on Election Day to vote by provisional ballot. Under Arizona
law, an early ballot may be dropped off at any polling place in the county on Election
Day. While that ballot is timely under state law, in reality the Recorder’s Office does not
obtain possession of those ballots from the Elections Department until very late on
election night or early the next morning. If the Recorder’ Office receives the ballot after
7:00 p.m. on Election Day, there are no steps that can be taken to have the voter sign the
early ballot affidavit since the statutory deadline is 7:00 p.m. on Election Day. A.R.S. §
16-548(A). Pima County Defendants lack sufficient information from which to form a
belief as to the truth or falsity of the allegations pertaining to Cochise County and,
therefore, deny those allegations. [See Exhibit A, Affidavit of Christopher J. Roads].
53. With respect to the allegations contained in paragraph 61 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations. Pima County Defendants lack
sufficient information from which to form a belief as to the truth or falsity of the
allegations pertaining to Cochise County and, therefore, deny those allegations.
54. With respect to the allegations contained in paragraph 62 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because Elle Troutman failed
to sign the provisional ballot form. Consequently, her provisional ballot could not be
counted under Arizona law. [See Exhibit A, Affidavit of Christopher J. Roads].
55. With respect to the allegations contained in paragraph 63 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations pertaining to Pima County.
[See Exhibit A, Affidavit of Christopher J. Roads].
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4. Failure by Election Officials to Direct Voters Who Had Moved to the
Proper Precinct.
56. With respect to the allegations contained in paragraph 64 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. The word “shall” in Arizona
statutes does not necessarily mean a duty is mandatory. It may be directory and indicate
merely “desirability, preference or permission.” Forino v. Arizona. Department of
Transportation, 191 Ariz. 77, 81, 952 P.2d 315, 319 (App. 1997). Nevertheless, Pima
County elections officials made many efforts to direct voters to the correct polling
location. Prior to the start of early voting for the November 4, 2014 election, every
household with a registered voter in Pima County was sent a publicity pamphlet relating
to propositions on the ballot. Each of those publicity pamphlets identified the polling
place for the voters residing at the address where the information pamphlet was mailed.
The polling place information was listed on the front cover of the information pamphlet.
In addition, the Pima County Elections Department mailed sample ballots to every
household that included any voter not on the Permanent Early Voting list. Any voter who
did not request an early ballot was also sent a yellow polling place card just prior to
Election Day. The sample ballots and yellow cards all included the voter’s polling place
information. Starting approximately 45 days prior to Election Day, the Pima County
Recorder’s Office website, www.recorder.pima.gov includes a polling place finder for
any voter in Pima County. The voter merely has to click on the “Polling Location” icon
under voter services and enter their current address. The site will immediately return the
address and location for the assigned polling place for the entered address. The Pima
County Recorder’s Office also operates a phone bank to assist voters in all aspects of
voting, including finding their correct polling place, both before and on Election Day.
[See Exhibit A, Affidavit of Christopher J. Roads].
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57. With respect to the allegations contained in paragraph 65 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because Plaintiff Cohen is
registered to vote at 3300 N. Paseo de los Rios and has been since June 8, 2012. That
address is within the boundaries of precinct/voting area 099. He did not request an early
ballot for this election. On Election Day he went to the polling place for voting area 099
and voted a provisional ballot. On that provisional ballot form he indicated that his
residence address was 5745 E. Burns Street in Tucson. That address is within the
boundaries of precinct/voting area 108. He was therefore in the wrong polling place for
his new address and his provisional ballot was invalid. The declaration signed by Cohen
indicates that he moved in January and chose to go to the old polling place to vote. [See
Exhibit A, Affidavit of Christopher J. Roads].
58. With respect to the allegations contained in paragraph 66 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because Plaintiff Goodwine-
Cesarec is registered to vote at 8111 E. Broadway Blvd in Tucson and has been since
July 19, 2014. That address is within the boundaries of precinct 116. She is enrolled on
the Permanent Early Voting List and was mailed an early ballot for the 2014 General
Election. That early ballot was not returned to the Recorder’s Office by the United States
Postal Service. Goodwine-Cesarec went to the polling place for precinct 116 and was
required to vote by provisional ballot due to the early ballot. When she completed the
provisional ballot form, Goodwine-Cesarec noted a new address at 6199 E. Broadway.
That address is within the boundaries of precinct 108. Goodwine-Cesarec cast her ballot
in the wrong polling place for her new address and the provisional ballot was invalidated.
In her declaration Goodwine-Cesarec states that she called the voter registration office to
change her address about a month prior to the election. However, the Recorder’s Office
does not modify any voter registration residence address by phone. She would have been
instructed to submit a new voter registration form or to submit a written and signed notice
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that she had moved to a new address before her record could have been updated. No
written notice of the address change was received by the Recorder’s Office prior to
Election Day. [See Exhibit A, Affidavit of Christopher J. Roads].
59. With respect to the allegations contained in paragraph 67 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations. Pima County Defendants
lack sufficient information from which to form a belief as to the truth or falsity of the
allegations pertaining to Cochise County and, therefore, deny those allegations.
5. Misleading or Erroneous Statements by Elections Officials regarding
Voting in Proper Precinct.
60. With respect to the allegations contained in paragraph 68 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
61. With respect to the allegations contained in paragraph 69 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations because Rankin is registered to
vote at 10183 E. Desert Crossings Way in Tucson and has been since September 16,
2000. That address is within the boundaries of precinct 224. Rankin is enrolled on the
Permanent Early Voting List and was mailed an early ballot for the 2014 General
Election. That early ballot has not been returned to the Pima County Recorder’s Office.
On Election Day Rankin went to the polling place for precinct 090. She voted a
provisional vote at that location listing her residence address as the Desert Crossings
address listed above. Since she was in the wrong polling place for her residence address,
her provisional ballot was properly invalidated. [See Exhibit A, Affidavit of Christopher
J. Roads].
62. With respect to the allegations contained in paragraph 70 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations. Pima County Defendants lack
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sufficient information from which to form a belief as to the truth or falsity of the
allegations pertaining to Cochise County and, therefore, deny those allegations.
6. Voters Who Were Not Told They Were in the Wrong Precinct
63. With respect to the allegations contained in paragraphs 71 and 72 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County
Defendants lack sufficient information from which to form a belief as to the truth or
falsity of the allegations pertaining to Cochise County and, therefore, deny those
allegations. [See Exhibit A, Affidavit of Christopher J. Roads].
F. Election Officials Have Refused to Correct These Errors
64. With respect to the allegations contained in paragraphs 73, 74, and 75 of
Plaintiffs’ Complaint, Pima County Defendants admit the allegations. Pima County
Defendants affirmatively assert that the last date to legally verify a provisional ballot was
November 14, 2014, or ten days after Election Day. STATE OF ARIZONA ELECTIONS
PROCEDURES MANUAL 185 (June, 2014). Before a conditional ballot may be verified,
the County Recorder must determine whether the voter cast an early ballot. Id. at 182.
Consequently, all early ballots must have been verified by November 14, 2014, as well.
By the time Pima County Defendants canvassed the General Election on November 18,
2014, it would have been legally impermissible to make further changes to early or
provisional ballot verifications.
65. With respect to the allegations contained in paragraph 74, Pima County
Defendants admit that the canvass of the 2012 General Election was conducted at a
special meeting of the Board of Supervisors on November 26, 2012. The canvass for the
2014 General Election was conducted on November 18, 2014, the last regular meeting
date of the Board of Supervisors before the deadline, as all election returns were
complete.
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65. With respect to the allegations contained in paragraph 76 of Plaintiffs’
Complaint, Pima County Defendants lack sufficient information from which to form a
belief as to the truth or falsity of the allegations pertaining to Cochise County and,
therefore, deny those allegations.
66. With respect to the allegations contained in paragraph 77 of Plaintiffs’
Complaint, Pima County Defendants are without knowledge sufficient to know the truth
or falsity of the allegations, and therefore deny them.
First Claim for Relief
Equal Protection
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Arbitrary and Disparate Treatment of Similarly-Situated Voters
(Bush v. Gore)
67. With respect to the allegations contained in Paragraph 78 of Plaintiffs’
Complaint, Pima County Defendants incorporate their responses as set forth above, as if
set forth in full herein.
68. With respect to the allegations contained in paragraph 79 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations.
69. With respect to the allegations contained in paragraph 80 of Plaintiffs’
Complaint, Pima County Defendants deny that they violated the Equal Protection Clause.
[See Exhibit A, Affidavit of Christopher J. Roads].
70. With respect to the allegations contained in paragraph 81 of Plaintiffs’
Complaint, Pima County Defendants admit the allegations.
71. With respect to the allegations contained in paragraphs 82, 83, and 84 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County
Defendants are not responding on behalf of Cochise County Defendants or the Secretary
of State. [See Exhibit A, Affidavit of Christopher J. Roads].
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Second Claim for Relief
Equal Protection
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Undue Burden on the Right to Vote
(Burdick v. Takushi)
72. With respect to the allegations contained in Paragraph 85 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
73. With respect to the allegations contained in paragraphs 86, 87, and 88 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,
Affidavit of Christopher J. Roads].
Third Claim for Relief
Due Process
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
74. With respect to the allegations contained in Paragraph 89 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
75. With respect to the allegations contained in paragraphs 90 and 91 of
Plaintiffs’ Complaint, Pima County Defendants admit the allegations.
76. With respect to the allegations contained in paragraphs 92 and 93 of
Plaintiffs’ Complaint, Pima County Defendants deny the allegations. [See Exhibit A,
Affidavit of Christopher J. Roads].
Fourth Claim for Relief
Ariz. Const. Art. II, § 21
77. With respect to the allegations contained in Paragraph 94 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
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78. With respect to the allegations contained in paragraph 95 of Plaintiffs’
Complaint, Pima County Defendants admits the Arizona Constitution protects the right to
vote.
79. With respect to the allegations contained in paragraph 96 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
Fifth Claim for Relief
Help America Vote Act
52 U.S.C. § 21082(a)(4)
80. With respect to the allegations contained in Paragraph 97 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
81. With respect to the allegations contained in paragraph 98 of Plaintiffs’
Complaint, Pima County Defendants admit that Plaintiffs have quoted from the statute.
82. With respect to the allegations contained in paragraph 99 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. [See Exhibit A, Affidavit of
Christopher J. Roads].
Sixth Claim for Relief
Violations of Arizona Elections Law
A.R.S. §§ 16-579, 16-583, 16-584, Elections Procedures Manual (2014)
83. With respect to the allegations contained in Paragraph 100 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
84. With respect to the allegations contained in paragraphs 101 and 102 of
Plaintiffs’ Complaint, Pima County Defendants admit that Plaintiffs have quoted from
applicable Arizona law.
85. With respect to the allegations contained in paragraph 103 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. Pima County Defendants are
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not responding on behalf of Cochise County Defendants. [See Exhibit A, Affidavit of
Christopher J. Roads].
86. With respect to the allegations contained in paragraph 104 of Plaintiffs’
Complaint, Pima County Defendants admit that Plaintiffs have quoted from the statute,
but deny the provision is a mandatory obligation. [See Exhibit A, Affidavit of
Christopher J. Roads].
87. With respect to the allegations contained in paragraph 105 of Plaintiffs’
Complaint, Pima County Defendants deny the allegations. Pima County Defendants are
not responding on behalf of Cochise County Defendants. [See Exhibit A, Affidavit of
Christopher J. Roads].
Declaratory and Injunctive Relief
28 U.S.C. §§ 2201 and 2202, Fed. R. Civ. P. 57 and 65
88. With respect to the allegations contained in Paragraph 106 of Plaintiffs’
Complaint, Pima County Defendants incorporate its responses as set forth above, as if set
forth in full herein.
89. With respect to the allegations contained in paragraphs 107, 108, and 109
of Plaintiffs’ Complaint, Pima County Defendants deny the allegations. Pima County
Defendants are not responding on behalf of Cochise County Defendants.
90. Pima County Defendants deny any allegations not specifically admitted to
herein.
91. Pima County Defendants deny Plaintiffs are entitled to any of the relief
requested in the Prayer for Relief on pages 24 and 25 of Plaintiffs’ Complaint.
WHEREFORE, having fully responded to Plaintiffs’ Complaint, Pima County
Defendants request the following:
1. enter a Judgment in favor of Pima County; and,
2. award Pima County its reasonable attorney’s fees, costs, and other expenses
incurred in the defense of this action; and
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3. such other findings and relief as the Court deems just and proper and enter an
Order confirming the same.
RESPECTFULLY SUBMITTED December 11, 2014. BARBARA LAWALL PIMA COUNTY ATTORNEY
By /s/: Daniel Jurkowitz Daniel Jurkowitz Deputy County Attorney
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CERTIFICATE OF SERVICE
I hereby certify that on December 11, 2014, I electronically transmitted the
foregoing document to the Clerk’s Office using the CM/ECF System which will
send notification of such filing to all counsel of record:
BARBARA LAWALL PIMA COUNTY ATTORNEY
By /s/ Daniel Jurkowitz Daniel Jurkowitz Deputy County Attorney
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EXHIBIT A
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