Jill Kennedy v. Joseph Lodge , 230 Ariz. 548 ( 2012 )

SUPREME COURT OF ARIZONA
In Division
JILL KENNEDY, an individual and ) Arizona Supreme Court
qualified elector, ) No. CV-12-0277-AP/EL
)
Plaintiff/Appellant, ) Coconino County
) Superior Court
v. ) No. CV2012-00508
)
JOSEPH LODGE, an individual, )
Real Parties in Interest, THE )
HONORABLE CARL TAYLOR, MATT RYAN, ) O P I N I O N
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 )
SOLELY NAMED IN HER OFFICIAL )
CAPACITY, )
)
Defendants/Appellees. )
_________________________________ )
Appeal from the Superior Court in Coconino County
The Honorable David L. Mackey, Judge
REVERSED
________________________________________________________________
WILLIAMS, ZINMAN, & PARHAM, P.C. Scottsdale
By Scott E. Williams
Mark B. Zinman
Melissa A. Parham
Michael A. Parham
Attorneys for Jill Kennedy
COPPERSMITH, SCHERMER, & BROCKELMAN, P.L.C. Phoenix
By Andrew S. Gordon
Roopali H. Desai
Attorneys for Joseph Lodge
DAVID W. ROZEMA, COCONINO COUNTY ATTORNEY Flagstaff
By Jean E. Wilcox, Deputy County Attorney
Attorneys for Carl Taylor, Matt Ryan,
Elizabeth Archuleta, Lena Fowler, Mandy Metzger,
Wendy Escoffier, Candace Owens, and Patty Hansen
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor, Deputy County Attorney
Bruce P. White, Deputy County Attorney
Attorneys for Amici Curiae
Helen Purcell and Karen Osborne
________________________________________________________________
B E R C H, Chief Justice
¶1 On August 21, 2012, we issued an order reversing the
superior court’s ruling and disqualifying Joseph Lodge from
participating as a Libertarian Party write-in candidate for the
August 28, 2012, primary election. We further ordered that his
name not be placed on the official ballot for the 2012 general
election for the office of Coconino County Superior Court Judge,
Division Five. This opinion explains our Order.
I. FACTS AND PROCEDURAL HISTORY
¶2 Joseph Lodge is the incumbent judge of Division Five
of the Superior Court in Coconino County who seeks election to a
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new term in that office. In an earlier opinion, we held that
Lodge’s omission of the superior court division number from his
nominating petitions rendered all of his petitions for the
primary election fatally defective. Kennedy v. Lodge (Lodge I),
230 Ariz. 134, 137 ¶ 16, 281 P.3d 488, 491 (2012). Accordingly,
Lodge was ineligible for the 2012 Democratic primary election.
Id. at 135 ¶ 5, 137 ¶ 16, 281 P.3d at 489, 491; see also A.R.S.
§ 16-333 (2006).
¶3 Lodge then sought to run as a write-in candidate in
the Libertarian Party primary election. Jill Kennedy, a
qualified elector, challenged Lodge’s write-in candidacy,
arguing that A.R.S. § 16-312(F)(3) (Supp. 2011) bars Lodge from
running as a write-in candidate because he filed nomination
petitions, but failed to secure enough valid signatures to run
in the Democratic primary. Kennedy also asserts that the trial
court in Lodge I implicitly held the individual petition
signatures to be invalid, therefore barring Lodge from asserting
their validity here under the doctrine of collateral estoppel.
¶4 Distinguishing invalid nominating petitions from
invalidation of the individual signatures on those petitions,
the superior court ruled that the invalidated petitions did not
trigger application of A.R.S. § 16-312(F)(3). The court
reasoned that the invalidity of the petitions did not imply a
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“fail[ure] to provide a sufficient number of valid petition
signatures” so as to disqualify Lodge’s write-in candidacy.
¶5 Kennedy timely appealed. We have jurisdiction over
this expedited appeal pursuant to A.R.S. § 16-351(A) (Supp.
2011). See also ARCAP 8.1 (setting forth procedures for
expedited election appeals).
II. DISCUSSION
¶6 The outcome of this case turns on statutory
interpretation, an issue of law that we review de novo. Duncan
v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308 ¶ 2, 70
P.3d 435, 437 (2003). Section 16-312(F), A.R.S., bars persons
from running as write-in candidates in four specific
circumstances. At issue in this case is § 16-312(F)(3), which
applies to candidates who have “filed a nomination petition for
the current primary election for the office sought and failed to
provide a sufficient number of valid petition signatures as
prescribed by § 16-322.” Thus, we must determine whether this
statutory bar applies to a candidate whose petitions were
invalid in their entirety for failure to substantially comply
with the statutory requirements.1
1
Lodge had timely filed 99 petitions containing 1,110
signatures in total, but all of the petitions were invalidated
in Lodge I, 230 Ariz. at 135 ¶ 3, 137 ¶ 16, 281 P.3d at 489,
491. Our decision here does not rest on whether the number of
signatures would otherwise have been sufficient.
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¶7 Lodge urges this Court to distinguish between
defective petitions and petitions containing an inadequate
number of signatures after all challenges to individual
signatures have been resolved. He asserts that § 16-312(F)(3)
applies only in the latter situation, construing the phrase “as
prescribed by § 16-322” as limiting subsection (F)(3)’s
preceding language.
¶8 We disagree. Section 16-322 merely sets forth methods
for calculating the number of signatures required on nomination
petitions for various elected offices. Contrary to Lodge’s
suggestion, § 16-322 does not provide any method for determining
the validity of signatures and does not form an independent
legal basis for disqualifying candidates or signatures.
¶9 Lodge also reasons that signatures may still be valid
for purposes of § 16-312(F)(3) even though the petition forms
containing the signatures were defective.2 This Court has
previously observed, however, that signatures on defective
petitions are themselves invalid. Moreno v. Jones, 213 Ariz.
2Lodge argues that Kennedy stipulated during the evidentiary
hearing in Lodge I that Lodge had enough valid signatures. The
record, however, clearly reflects that Kennedy intended only to
waive previously asserted challenges to the individual
signatures themselves. The Lodge I trial court correctly
determined that Kennedy conceded that if all the petitions were
valid, “Mr. Lodge still had sufficient potentially valid
signatures.” (Emphasis added.) But Kennedy consistently
maintained that all signatures were invalid because the
petitions containing them were invalid.
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94, 101 n.4 ¶ 39, 139 P.3d 612, 619 n.4 (2006); Brousseau v.
Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984). This
principle applies even though the grounds for invalidation here
differ from those in Brousseau and Moreno.
¶10 In Brousseau, we voided petitions that were falsely
certified as having been circulated by individuals who had not
collected the signatures. 138 Ariz. at 454, 456, 675 P.2d at
714, 716. We held that signatures on such petitions “may not be
considered in determining the sufficiency of the number of
signatures to qualify for placement on the ballot.” Id. at 456,
675 P.2d at 716. Counting signatures on defective petitions, we
noted, was inconsistent with the goal of the statutory
requirements: to ensure the integrity of nominations by
guarding against misrepresentations and reducing erroneous
signatures. Id.
¶11 The reasoning in Brousseau is especially persuasive
where, as here, the face of the petition might have misled
signers regarding the office for which the candidate was
running. As we noted in Lodge I, because Lodge failed to list
“Division Five” on his petitions, signers could not know from
the face of the petitions for which office he was seeking
nomination. 230 Ariz. at 136 ¶ 12, 281 P.3d at 490. Therefore,
the defects in Lodge’s petitions, although different from those
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in Brousseau, are no less fatal to the validity of the
signatures contained on the invalid petitions.
¶12 Other election statutes support this conclusion.
Section 16-321, which governs the validity of signatures,
directs that signatures “shall not be counted” unless they are
“on a sheet bearing the form prescribed by § 16-314.” A.R.S.
§ 16-321(A) (Supp. 2011). “The applicable statutes require
superior court judicial nominating petitions to specifically
designate the division number of the judicial office sought.”
Lodge I, 230 Ariz. at 137 ¶ 16, 281 P.3d at 491. Because
Lodge’s petitions did not contain that required information,
they did not “substantially comply with statutory requirements.”
Id. at 136 ¶ 12, 281 P.3d at 490. And “[a]ny petition filed by
a candidate for [judicial office that] does not comply with the
provisions of this chapter shall have no force or effect at any
such election.” A.R.S. § 16-333.
¶13 We hold that a candidate whose nominating petitions
have “no force or effect,” id., “fail[s] to provide a sufficient
number of valid petition signatures” under A.R.S. § 16-
312(F)(3). Kennedy’s successful challenge to all of Lodge’s
petitions placed Lodge squarely within the scope of the
statutory bar in § 16-312(F)(3).
¶14 In view of this conclusion, we need not address the
res judicata and collateral estoppel arguments Kennedy raised.
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III. CONCLUSION
¶15 For the foregoing reasons, we reverse the judgment of
the superior court. Appellee Joseph Lodge is disqualified from
participating as a Libertarian Party write-in candidate for the
office of Coconino County Superior Court Judge, Division Five,
in the August 28, 2012, primary election. The Coconino County
Recorder and Elections Administrator shall not count any votes
for him in the tally of ballots for that election. Nor shall
Joseph Lodge’s name be placed on the official ballot for the
2012 general election for the office of Coconino County Superior
Court Judge, Division Five.
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
__________________________________
A. John Pelander, Justice
__________________________________
Robert M. Brutinel, Justice
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