Jill Kennedy v. Joseph Lodge , 230 Ariz. 134 ( 2012 )

SUPREME COURT OF ARIZONA
In Division
JILL KENNEDY, an individual and ) Arizona Supreme Court
qualified elector, ) No. CV-12-0221-AP/EL
)
Plaintiff/Appellee, ) Coconino County
) Superior Court
v. ) No. CV2012-00386
)
JOSEPH LODGE, an individual, )
Real Party in Interest, )
THE HONORABLE CARL TAYLOR, MATT ) O P I N I O N
RYAN, ELIZABETH ARCHULETA, LENA )
FOWLER AND MANDY METZGER, THE )
DULY ELECTED OR APPOINTED )
MEMBERS OF THE COCONINO COUNTY )
BOARD OF SUPERVISORS, WHO ARE )
NAMED SOLELY IN THEIR OFFICIAL )
CAPACITY; WENDY ESCOFFIER, CLERK )
OF THE BOARD OF SUPERVISORS, WHO )
IS NAMED SOLELY IN HER OFFICIAL )
CAPACITY; THE COCONINO COUNTY )
BOARD OF SUPERVISORS; THE )
HONORABLE CANDACE D. OWENS, THE )
DULY ELECTED COCONINO COUNTY )
RECORDER, WHO IS NAMED SOLELY IN )
HER OFFICIAL CAPACITY, AND THE )
HONORABLE PATTY HANSEN, THE DULY )
APPOINTED COCONINO COUNTY )
ELECTION ADMINISTRATOR, WHO IS )
NAMED SOLELY IN HER OFFICIAL )
CAPACITY, )
)
Defendants/Appellants. )
_________________________________ )
Appeal from the Superior Court in Coconino County
The Honorable Michael R. Bluff, Judge
AFFIRMED
________________________________________________________________
WILLIAMS, ZINMAN, & PARHAM, P.C. Scottsdale
By Scott E. Williams
Mark B. Zinman
Melissa A. Parham
Attorneys for Jill Kennedy
COPPERSMITH, SCHERMER, & BROCKELMAN, PLC Phoenix
By Andrew S. Gordon
Roopali Hardin Desai
Attorneys for Joseph Lodge
________________________________________________________________
B E R C H, Chief Justice
¶1 On June 27, 2012, we issued an order affirming the
superior court’s judgment that nominating petitions designating
the office sought as “Superior Court,” without specifying the
office and division number, did not substantially comply with
A.R.S. §§ 16-314 (Supp. 2011), -331, and -333 (2006). This
opinion explains our reasoning.
I. FACTS AND PROCEDURAL HISTORY
¶2 Joseph Lodge is a judge of Division Five of the
Superior Court in Coconino County who seeks to run for election
to a new term in that office. Two Coconino County judgeships,
Division Three and Division Five, are up for election this year.
The primary election is scheduled for August 28, 2012.
¶3 To qualify for the primary election ballot, Lodge
needed to obtain 525 valid signatures on his nominating
petitions. See A.R.S. §§ 16-314, -322(A)(4) (Supp. 2011)
(requiring certain percentage of qualified electors to sign
nominating petitions for superior court judge). He timely filed
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99 nominating petitions containing a total of 1,110 signatures.
Each petition states that Lodge is running for the office of
“Superior Court.” The petitions do not specify that he is
running for the office of “Judge,” nor do they specify that he
seeks election to Division Five.
¶4 Jill Kennedy, a qualified elector, challenged Lodge’s
petitions, arguing that they do not substantially comply with
A.R.S. §§ 16-314, -331, and -333 because they do not specify the
office that Lodge was seeking. At an evidentiary hearing below,
however, Lodge and several of his petition circulators testified
that when they circulated petitions they told signers that Lodge
was running for superior court judge in Division Five. The
circulators also testified that they offered cards to signers
specifying the division number. Other testimony indicated that
some petition signers, after looking at Lodge’s petition,
inquired as to the office for which he was running.
¶5 The superior court found “insufficient evidence . . .
to establish whether or not petition signers were . . . actually
confused or misled” by the petitions. The court concluded that
“electors signing Mr. Lodge’s petitions would not know by
reading the petition what office” and division within the
superior court he was seeking. After ruling that none of
Lodge’s petitions substantially complied with the applicable
statutes, the court entered judgment for Kennedy and ordered
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that Lodge’s name not be placed on the 2012 primary or general
election ballots.
¶6 Lodge timely appealed. We have jurisdiction pursuant
to Rule 8.1 of the Arizona Rules of Civil Appellate Procedure,
Article 6, Section 5(3) of the Arizona Constitution, and A.R.S.
§ 16-351(A) (Supp. 2011), which provides for a direct appeal to
this Court.
II. DISCUSSION
¶7 We review de novo whether a petition form substantially
complies with statutory requirements. Moreno v. Jones, 213
Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006). In making
this determination, this Court “has focused on whether the
omission of information could confuse or mislead electors
signing the petition.” Id. ¶ 42 (citation omitted); Bee v. Day,
218 Ariz. 505, 508 ¶ 13, 189 P.3d 1078, 1081 (2008); see also
A.R.S. § 16-333 (“Any petition filed by a candidate for
[superior] court which does not comply with the provisions of
this chapter shall have no force or effect.”). Thus, we must
determine whether the omission of the office or the division
number from Lodge’s petitions could have confused or misled the
electors who signed them.
A. Omission of the Office Designation “Judge”
¶8 The omission of the word “Judge” from Lodge’s petitions
does not render the petitions fatally defective. Our opinion in
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Moreno is instructive. There, an elector challenged the
validity of a state senate candidate’s petition that omitted the
specific date of the primary election and included only the year
of the election. Moreno, 213 Ariz. at 101-02 ¶¶ 40-42, 139 P.3d
at 619-20. We concluded that the omitted information could not
have confused or misled electors because there is only one
primary election for state legislative office in any election
year. Id. at 102 ¶ 44, 139 P.3d at 620. We therefore held that
electors would “automatically know for which primary election
they were signing.” Id. ¶ 45 (internal quotes omitted); see
also Bee, 218 Ariz. at 508 ¶¶ 13-14, 189 P.3d at 1081 (holding
that the omission of the expiration date of the candidate’s
unexpired vacant term was not fatal because only one seat for
that office was open in that election).
¶9 Likewise, only one Coconino County Superior Court
office is up for election this year: superior court judge.
Therefore, electors would automatically know for which office
they were signing. The omission of “Judge” from Lodge’s
petitions could not have confused or misled signers and, thus,
does not render the petitions fatally defective.
B. Omission of the Division Number
¶10 We turn to the omission of the division number from
Lodge’s petitions. Arizona law provides that if “two or more
judges of the superior court are to be . . . elected for the
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same term, it shall be deemed that there are as many separate
offices to be filled as there are judges of the superior court
to be elected.” A.R.S. § 16-331(A). Further, each office must
be “designated by the distinguishing number of the division of
the court,” id., and that designation “shall be used on all
nominating petitions,” id. § 16-331(B); see also Ariz. Const.
art. 6, § 12(A) (requiring ballots for superior court judicial
candidates to include “the division and title of the office”).
Thus, each superior court judgeship is a separate office
identifiable by the particular division to which the candidate
seeks election. And, as Lodge acknowledges, a “petition signer
needs to know for which division he is nominating someone
because he can only nominate one candidate for each division.”
See A.R.S. § 16-314(C).
¶11 In Marsh v. Haws, the plaintiff challenged the validity
of three candidates’ petitions to run for the office of Justice
of the Peace for the South Phoenix Precinct. 111 Ariz. 139,
140, 526 P.2d 161, 162 (1974) (per curiam). Two of the
candidates’ petitions listed the office as “Justice of the
Peace,” without specifying the precinct. Id. At the time,
Maricopa County had seventeen Justice of the Peace precincts,
fourteen of which were up for election that year. Id. We held
that the petitions for these two candidates did not
substantially comply with statutory requirements because
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electors could not determine from the face of the petitions for
which precinct the candidates were running. Id.
¶12 Like the petitions in Marsh, Lodge’s petitions did not
include any information that would inform the petition signers
of the division for which he was running. Because of that
material omission, a signer would not “automatically know that
he was nominating a candidate for the office” of Division Five
of the Coconino County Superior Court. Moreno, 213 Ariz. at 102
¶ 43, 139 P.3d at 620 (quoting Marsh, 111 Ariz. at 140, 526 P.2d
at 162). Lodge’s nominating petitions therefore do not
substantially comply with statutory requirements. See A.R.S.
§ 16-331(A); see also Marsh, 111 Ariz. at 140, 526 P.2d at 162.
¶13 Lodge argues that his petitions substantially complied
because little evidence showed that electors were actually
confused or misled by the omission. He asserts that electors
were aware of the division for which he was running because he
and some petition circulators handed out palm cards, wore
campaign stickers, posted campaign signs, and recited a speech —
all of which identified Lodge as a candidate for superior court
judge in Division Five. We conclude, however, that this
extrinsic information cannot be used to cure the defect in his
petitions.
¶14 To support his claim that we should consider evidence
extrinsic to the petitions to show voters’ lack of confusion,
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Lodge relies on Clifton v. Decillis, 187 Ariz. 112, 116, 927
P.2d 772, 776 (1996), in which we held that an independent
candidate’s petitions substantially complied with statutory
requirements despite leaving blank the space reserved for party
designation. Although we noted in Clifton that the candidate
told each elector that she was running as an independent, that
extrinsic information did not factor into our substantial
compliance analysis. Id. at 113, 927 P.2d at 773. Rather, we
concluded that the party designation was not essential to an
independent candidacy because independent candidates do not run
in primary elections and, by definition, have no party
designation. Id. at 115-16, 927 P.2d at 775-76. Because party
designation was not essential, its omission was not fatal to the
petitions. Clifton does not support Lodge’s use of and reliance
on extrinsic evidence in the context presented here.
¶15 The relevant inquiry thus is whether the nominating
petition itself substantially complies with statutory
requirements. See Bee, 218 Ariz. at 508 ¶ 12, 189 P.3d at 1081
(“In reviewing non-compliance with any component of the form,
the relevant inquiry is whether the form as a whole
substantially complies with the statutory requirements.”
(emphasis added)). Allowing candidates to compensate for
petition defects with extrinsic evidence that such defects did
not result in voter confusion would eviscerate the statutory
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requirement that all essential information be made available to
the elector on the petition form. See A.R.S. §§ 16-314(C),
-331, -333. Furthermore, it would encourage an inquiry into
whether each signer was actually confused or misled, a
determination that could be made here only by ascertaining
whether at least 525 qualified petition signers understood that
Lodge was running for judge of Division Five when each signed
Lodge’s petition. This is precisely the type of inquiry that
the statutory petition requirements are designed to avoid.
¶16 The applicable statutes require superior court judicial
nominating petitions to specifically designate the division
number of the judicial office sought. Under our cases, the
relevant inquiry is whether an elector would know just by
reading his petitions for which division Lodge was running. The
petitions here fail to adequately inform electors that Lodge
sought election to Division Five because they do not specify any
division and more than one division is up for election in this
cycle. Accordingly, the petitions failed to substantially
comply with statutory requirements.
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III. CONCLUSION
¶17 For the foregoing reasons, we affirm the judgment of
the superior court.
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
___________________________________
A. John Pelander, Justice
___________________________________
Robert M. Brutinel, Justice
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