Bahney Dedolph v. Lois Jean McDermott , 230 Ariz. 130 ( 2012 )

SUPREME COURT OF ARIZONA
In Division
BAHNEY DEDOLPH, ) Arizona Supreme Court
) No. CV-12-0226-AP/EL
Plaintiff/Appellee, )
) Maricopa County
v. ) Superior Court
) No. CV2012-009302
LOIS JEAN McDERMOTT, Democratic )
Primary Candidate for Arizona )
House of Representatives, )
Legislative District 24; KEN ) O P I N I O N
BENNETT, Secretary of State; )
HELEN PURCELL, Maricopa County )
Recorder; KAREN OSBORNE, )
Maricopa County Director of )
Elections; FULTON BROCK, )
Maricopa County Supervisor; )
DON STAPLEY, Maricopa County )
Supervisor; ANDY KUNASEK, )
Maricopa County Supervisor; )
MAX WILSON, Maricopa County )
Supervisor; MARY ROSE WILCOX, )
Maricopa County Supervisor, )
)
Defendants/Appellants. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge
AFFIRMED IN PART, REVERSED IN PART
________________________________________________________________
COPPERSMITH SCHERMER & BROCKELMAN PLC Phoenix
By Andrew S. Gordon
Roopali H. Desai
Attorneys for Bahney Dedolph
SNELL & WILMER, L.L.P. Phoenix
By Kory A. Langhofer
Ian M. Fischer
Attorneys for Lois Jean McDermott
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor
J. Kenneth Mangum
Attorneys for Helen Purcell, Karen Osborne, Fulton Brock,
Donald T. Stapley, Jr., Andrew Kunasek, Max Wilson, and
Mary Rose Wilcox
_______________________________________________________________
B A L E S, Vice Chief Justice
¶1 This case concerns a challenge to the nomination of
Lois Jean McDermott, a Democratic candidate for the Arizona
House of Representatives in Legislative District 24. McDermott
appealed from a superior court judgment striking her from the
primary election ballot because she incorrectly identified her
surname as “Cheuvront-McDermott” in her nomination paper. We
issued an order affirming in part and reversing in part,
concluding that McDermott could appear on the ballot as
“McDermott, Jean Cheuvront.” This opinion explains our
reasoning.
I.
¶2 A person seeking to appear on the ballot for a
partisan primary election must file a nomination paper that
identifies, among other things, “the exact manner in which the
person desires to have the person’s name printed on the official
ballot pursuant to subsection G.” A.R.S. § 16-311(A).
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Subsection G further provides that the person’s name
shall be limited to the candidate's surname and given
name or names, an abbreviated version of such names or
appropriate initials such as “Bob” for “Robert”, “Jim”
for “James”, “Wm.” for “William” or “S.” for “Samuel”.
Nicknames are permissible, but in no event shall
nicknames, abbreviated versions or initials of given
names suggest reference to professional, fraternal,
religious or military titles. No other descriptive
name or names shall be printed on the official ballot,
except as provided in this section. Candidates’
abbreviated names or nicknames may be printed within
quotation marks. The candidate's surname shall be
printed first, followed by the given name or names.
¶3 “A person who does not file a timely nomination paper
that complies with [§ 16-311] is not eligible to have the
person’s name printed on the official ballot for that office.”
Id. § 16-311(H). Under well-settled law, however, “we do not
remove candidates from the ballot for mere technical departures”
from the statutorily required forms. Bee v. Day, 218 Ariz. 505,
507 ¶¶ 9-10, 189 P.3d 1078, 1080 (2008). Respecting the
electors’ right to nominate legitimate candidates, we assess
whether nominating papers substantially comply with the
statutory requirements. See id.
¶4 Bahney Dedolph brought this action seeking to
disqualify McDermott because her nomination paper stated that
she desired to appear on the ballot as “Cheuvront-McDermott,
Jean” when her legal surname is McDermott. McDermott responded
by arguing that this challenge was untimely under A.R.S. § 16-
351; that § 16-311(G) allowed her to identify herself as
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“Cheuvront-McDermott” as a nickname; and, in any event, that she
had substantially complied with the statutory requirements.
¶5 The trial court held an evidentiary hearing, at which
the following facts were undisputed. In 1957, McDermott, who
had moved to Phoenix the preceding year, married Jerry Cheuvront
and changed her name to Lois Jean Cheuvront. The next year, the
couple moved into the area that is now District 24, where they
lived until the 1970s and McDermott taught in public schools.
Students and parents knew her under her married name Cheuvront.
In the mid-1970s, McDermott moved out of District 24, but she
continued working at a hospital and art museum there. She also
maintained business dealings in the district under the name of
Cheuvront, both as a realtor and through her husband’s
construction company. In 1984, she moved back to District 24
for several years before relocating to Massachusetts in 1988.
¶6 In 1989, McDermott remarried and changed her legal
surname from Cheuvront to McDermott. After Mr. McDermott became
ill in 1993, the couple moved to Phoenix. In 1998, she
successfully ran for precinct committeewoman as Jean McDermott.
After Mr. McDermott died in 2002, she again ran for precinct
committeewoman as Jean McDermott in 2002, 2004, and 2006.
¶7 McDermott now again lives in District 24. She
testified that, because she was known as Jean Cheuvront when she
previously lived in this district, she often introduces herself
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as Jean Cheuvront-McDermott or clarifies that her previous name
was Cheuvront. As a candidate for the House of Representatives
for District 24, McDermott circulated nomination petition forms
for electors to sign that identified her as “Jean Cheuvront
McDermott.” Dedolph does not dispute that McDermott obtained
sufficient signatures to qualify for the ballot.
¶8 The superior court ruled that Dedolph’s challenge was
timely, that McDermott had not complied with § 16-311 because
“Cheuvront-McDermott” is not her surname, and that she also had
not substantially complied with the statute. Accordingly, the
superior court ordered that McDermott not be listed as a
candidate on the 2012 primary election ballot. McDermott filed
a timely appeal with this Court pursuant to § 16-351(A) and
ARCAP 8.1.
II.
¶9 McDermott first argues that Dedolph’s challenge to her
nomination was untimely under § 16-351(A), which provides that
such actions must be filed “no later than 5:00 p.m. of the tenth
day, excluding Saturday, Sunday and other legal holidays, after
the last day for filing nominating papers and petitions.” The
deadline for filing nominating papers and petitions was May 30,
2012. See § 16-311(A). Because the tenth day after May 30 was
June 9, a Saturday, McDermott concludes that the deadline for
filing a challenge to her nomination was Monday, June 11, 2012.
5
Dedolph filed this action on Wednesday, June 13.
¶10 Before 2003, § 16-351(A) required that nomination
challenges be filed “within ten days, excluding Saturday, Sunday
and other legal holidays, after the last day for filing
nomination papers and petitions.” We construed that language as
“giv[ing] an elector ten business days after the petition filing
deadline to challenge the validity of signatures on nomination
petitions.” Powers v. Carpenter, 203 Ariz. 116, 119 ¶ 15, 51
P.3d 338, 341 (2002). Dedolph filed her challenge on the tenth
business day after the May 30 petition filing deadline.
¶11 McDermott argues that § 16-351(A) no longer allows
nomination challenges to be filed within ten business days after
the petition filing deadline. In 2003, the legislature amended
the statute by replacing “within ten days” with the phrase “no
later than 5:00 p.m. of the tenth day.” 2003 Ariz. Sess. Laws,
ch. 233, § 5 (1st Reg. Sess.). Based on this amendment,
McDermott contends that challenges now must be filed within ten
calendar days after the petition filing deadline, unless the
tenth day falls on a Saturday, Sunday, or other legal holiday.
¶12 We disagree. Under McDermott’s interpretation, the
phrase “excluding Saturday, Sunday and other legal holidays”
would effectively be rendered superfluous. Even without this
language, if the deadline falls on one of the identified days, a
challenge filed on the next business day would be timely. See
6
Bohart v. Hannah, 213 Ariz. 480, 482 n.2 ¶ 7, 143 P.3d 1021,
1023 n.2 (2006) (noting that under § 16-351(A), if five-
calendar-day deadline falls on Saturday, Sunday, or a holiday,
notice of appeal is timely when filed on the next business day);
A.R.S. § 1-303 (allowing performance on next business day when
deadline falls on a holiday). Moreover, McDermott’s
interpretation implies that the legislature, through the 2003
amendment, intended to significantly reduce the time for filing
nomination petition challenges by replacing the ten-business-day
period with a ten-calendar-day period. If the legislature had
intended this result, it could have simply provided that
nomination challenges must be filed “not later than 5:00 p.m.
within ten days after” the petition filing deadline. Instead,
the legislature evidently intended to set a 5:00 p.m. deadline
on the tenth business day after the petition filing deadline.
See Ariz. State Senate, Fact Sheet for S.B. 1046, 46th Leg., 1st
Reg. Sess. (Feb. 23, 2003) (noting that 2003 amendment
“[c]larifies that the deadline for filing any court action
challenging the nomination of candidates is 5:00 p.m. of the
10th day following the last day for filing nominating papers and
petitions, excluding weekends and legal holidays”).
¶13 Dedolph timely filed her challenge by 5:00 p.m. on the
tenth business day after the petition filing deadline.
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III.
¶14 McDermott argues that § 16-311(G) allowed her to list
her name on the ballot as “Cheuvront-McDermott, Jean” and,
alternatively, that she should remain on the ballot because she
substantially complied with the statutory requirements.
¶15 We agree with the superior court that McDermott did
not technically comply with § 16-311(G). The first sentence of
subsection (G) requires a candidate to specify how his or her
name should appear on the official ballot, restricting the
choices to “the candidate’s surname and given name or names, an
abbreviated version of such names or appropriate initials such
as “Bob” for “Robert”, “Jim” for James, “Wm.” for “William” or
“S.” for “Samuel.”” McDermott notes that the next sentence
provides that “[n]icknames are permissible, but in no event
shall nicknames, abbreviated versions or initials of given names
suggest reference to professional, fraternal, religious or
military titles.” She then contends that “Cheuvront-McDermott”
is a permissible “nickname surname” under the statute.
¶16 Under § 16-311(G), a candidate must list his or her
legal surname in the nomination papers, and that name must
appear first on the ballot. The statute begins by directing
that the candidate’s name “shall be limited to the candidate’s
surname and given name or names, an abbreviated version of such
names or appropriate initials,” and it concludes by requiring
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that “[t]he candidate’s surname shall be printed first, followed
by the given name or names.” Id. (emphasis added). The
intervening statutory declaration that “[n]icknames are
permissible” allows nicknames in addition to or in place of a
candidate’s given name, but it does not allow the substitution
of a nickname for the required surname. For example, the
statute might have allowed Ernest W. McFarland to appear on the
ballot as “McFarland, Ernest ‘Mac’”, because his nickname was
“Mac,” but it would not have allowed him to use “Mac” in lieu of
his surname. Cf. James W. Johnson, Arizona Politicians: The
Noble and the Notorious 62, 65 (2002) (discussing political
career of Ernest “Mac” McFarland as U.S. Senator, Arizona
Governor, and Arizona Supreme Court Justice).
¶17 If McDermott wanted the ballot to reflect that she is
also known as Cheuvront, she should have listed her name in the
nomination paper as “McDermott, Jean Cheuvront” rather than
“Cheuvront-McDermott, Jean.” Because she did not strictly
comply with § 16-311(G), we must consider whether she
substantially complied, an issue we review de novo. Moreno v.
Jones, 213 Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006).
This analysis considers the nomination paper as a whole, see
Bee, 218 Ariz. at 507-08 ¶ 12, 189 P.3d at 1080-81, and
“focuse[s] on whether the omission of information could confuse
or mislead electors,” Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d at
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620.
¶18 McDermott substantially complied with § 16-311(G).
Her nomination petition forms listed her name as “Jean Cheuvront
McDermott,” three names by which she has been known. She could
have used nominating petitions in this form if she had listed
her name as “McDermott, Jean Cheuvront” in her nomination paper
filed under § 16-311(G). Nothing suggests that McDermott’s
listing her name as “Cheuvront-McDermott, Jean” in her
nomination paper would cause electors signing her nomination
petitions to be confused or misled about her identity.
¶19 Our conclusion that McDermott substantially complied
with the requirements in § 16-311(G) does not mean that she
should appear on the ballot as “Cheuvront-McDermott, Jean.” The
statute directs that “[t]he candidate’s surname shall be printed
first,” and McDermott’s substantial compliance does not relieve
the election officials responsible for printing the ballots from
this statutory requirement. See A.R.S. § 16-503 (duty to
prepare ballots containing the names of candidates).
Accordingly, we ordered that McDermott’s name be printed on the
primary ballot as “McDermott, Jean Cheuvront.”
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IV.
¶20 For the foregoing reasons, we affirmed in part and
reversed in part the judgment of the superior court.
___________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
___________________________________
Rebecca White Berch, Chief Justice
___________________________________
Robert M. Brutinel, Justice
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