Frank J Conti v. David B Bishop ( 2002 )

SUPREME COURT OF ARIZONA
En Banc
FRANK J. CONTI, ) Arizona Supreme Court
) No. CV-02-0229-AP/EL
Plaintiff-Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV 2002-012089
DAVID B. BISHOP; MARICOPA COUNTY )
BOARD OF SUPERVISORS; HELEN )
PURCELL, in her official capacity )
as Maricopa County Recorder; KAREN )
OSBORNE, in her official capacity ) MEMORANDUM DECISION
as Maricopa County Elections ) (Not for Publication -
Director, ) Ariz. R. Sup. Ct. 111)
)
Defendants-Appellees. )
)
____________________________________)
Appeal from the Superior Court of Maricopa County
The Honorable Mark W. Armstrong, Judge
AFFIRMED
_________________________________________________________________
Frank J. Conti, Pro Se Phoenix
H.M. Bohlman Tempe
Attorney for David B. Bishop
Richard M. Romley, Maricopa County Attorney Phoenix
By Jill M. Kennedy, Deputy County Attorney
and Otis Smith, Deputy County Attorney
Attorneys for Maricopa County Board of Supervisors,
Helen Purcell, and Karen Osborne
_________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 Frank Conti, a candidate for Justice of the Peace in the
Central Phoenix precinct, filed an election challenge in superior
court challenging numerous signatures on David Bishop’s nominating
petitions for the same office. See Arizona Revised Statutes
(A.R.S.) § 16-351.A (Supp. 2001). In addition, Conti alleged that
Bishop’s failure to timely file an amended Statement of
Organization (Statement) for his political committee required that
his name not be placed on the Republican primary ballot. The trial
court entered judgment for Bishop and the County defendants. We
previously issued an order affirming the superior court judgment.
Conti v. Bishop, No. CV-02-0229-AP/EL, Order (July 17, 2002). This
decision explains our order. We exercise jurisdiction pursuant to
A.R.S. section 16-351.A.
¶2 Bishop filed his Statement on March 25, 2002. The
Statement listed the office sought as “East Phx. JP #1.” Within
hours of filing the Statement, Bishop realized that, although he
currently resided in the East Phoenix #1 Justice of the Peace
precinct, newly-adopted precinct lines placed him in another
precinct for the 2002 election. He then telephoned the Maricopa
County Elections Department to correct the error. Prior to posting
the Statement as a public record, an elections department employee
changed the Statement to indicate that Bishop sought the office of
“Central Phx. JP” and noted, “KP-per candidate by phone 3/25/02.”
Bishop filed an amended Statement on June 28, 2002 and paid a civil
penalty pursuant to A.R.S. section 16-924. All the petitions
Bishop circulated indicated that he sought the office of Justice of
the Peace in the Central Phoenix precinct.
2
¶3 The relevant statutes require that candidates file an
amended Statement within five days after any information contained
in the Statement changes, but do not explicitly provide a penalty
for failure to timely file the amendment. See A.R.S. § 16-902.01.D
(Supp. 2001). Section 16-924, however, provides that the county
attorney may serve a candidate with an order requiring compliance
with the campaign finance statutes, including section 16-902.01.
A.R.S. § 16-924.A (Supp. 2001). In the absence of compliance by a
candidate, the county attorney may assess a civil penalty not
exceeding one thousand dollars. A.R.S. § 16-924.B. Bishop was
assessed, and he paid a civil penalty when he filed his amended
Statement. The statutes do not call for disqualification, and we
decline to require such a penalty here.1
¶4 Conti argues that Bishop should be disqualified from
appearing on the ballot because he obtained all his petition
signatures before he amended his Statement. No evidence of record
shows either that Bishop intended to defraud anyone who signed his
nominating petitions or that any person who signed Bishop’s
petitions was actually misled. Rather, the evidence shows that
Bishop’s Statement, when posted as a public record, and all
Bishop’s nominating petitions correctly indicated that he sought
1
We do not decide whether, in situations such as those
involving allegations of an intent to defraud voters,
disqualification would be the proper penalty for failing to comply
with the statutes.
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the Office of Justice of the Peace in the Central Phoenix precinct.
¶5 Conti also challenges all the signatures on two of
Bishop’s petitions because the circulators failed to properly
complete the verification on the back of the petition. On petition
number 11, the circulator failed to fill in the blank regarding the
county in which she was eligible to register to vote. On petition
number 21, the circulator listed a post office box rather than her
residence address.
¶6 In light of Arizona’s policy of encouraging citizen
participation in the electoral process, we look for substantial
compliance with petition requirements when assessing the effect of
petition errors. Clifton v. Decillis, 187 Ariz. 112, 113, 927 P.2d
772, 773 (1996). The circulators here substantially complied with
the requirements of section 16-321, which requires only that
petition circulators be qualified to vote in Arizona. See A.R.S.
§ 16-321.C (Supp. 2001).
¶7 The circulator who failed to fill in the county in which
she was eligible to register included her residence address, which
clearly indicates that she is a resident of Maricopa County. In
addition, she circulated six other petitions for Bishop, and on all
those petitions included the Maricopa County designation. The
circulator who failed to include her residence address, using a
post office box instead, holds an order of protection. We agree
with the trial judge that she could choose not to put her safety at
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risk by making her residence address public record, so long as she
provided an address at which she could be reached.
¶8 Finally, Conti argues that twenty signatures must be
invalidated because the signers are not registered to vote at their
current residence address within the Central Phoenix Justice of the
Peace precinct. Conti argues that these people were not qualified
to vote for Bishop at the time they signed his petition. See
A.R.S. § 16-322.A.7 (Supp. 2001). Bishop and the County defendants
counter that Pacuilla v. Cochise County Board of Supervisors, 186
Ariz. 367, 923 P.2d 833 (1996), requires that the signatures be
deemed valid. Because Bishop obtained 325 otherwise valid
signatures and needed only 291, these twenty signatures could not
affect Bishop’s ballot status. Accordingly, we do not decide this
issue.
¶9 For the foregoing reasons, we affirm the judgment of the
superior court.
_______________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
___________________________________
Charles E. Jones, Chief Justice
___________________________________
Stanley G. Feldman, Justice
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___________________________________
Michael D. Ryan, Justice
Justice Rebecca White Berch did not participate in the
determination of this matter.
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