Carl Seel v. Tim Sifert

SUPREME COURT OF ARIZONA
CARL SEEL, an individual and ) Arizona Supreme Court
qualified elector, ) No. CV-04-0219-AP/EL
)
Plaintiff-Appellee, ) Maricopa County
) Superior Court
v. ) No. CV2004-011971
)
)
) MEMORANDUM DECISION
TIM SIFERT, an individual, )
Real Party in Interest, ) (Not for Publication
THE HONORABLE R. FULTON BROCK, ) Ariz. R. Sup Ct. 111)
DON STAPLEY, ANDREW KUNASEK, )
MAX W. WILSON AND )
MARY ROSE WILCOX, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE MARICOPA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE MARICOPA COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE HELEN PURCELL, )
THE DULY ELECTED MARICOPA )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE KAREN )
OSBORNE, THE DULY APPOINTED )
MARICOPA COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE MANNY RUIZ, )
ROBERT DAMON, JOHN MAYNARD, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE SANTA CRUZ COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE SANTA CRUZ COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE SUZIE SAINZ, )
THE DULY ELECTED SANTA CRUZ )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE MELINDA )
MEEK, THE DULY APPOINTED )
SANTA CRUZ COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE JODY N. KLEIN, )
KAY L. MOTTER, AND NADINE )
M. PARKHURST, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE COCHISE COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE COCHISE COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE CHRISTINE RHODES, )
THE DULY ELECTED COCHISE )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE TOM )
SCHELLING, THE DULY APPOINTED )
COCHISE COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HIS OFFICIAL CAPACITY; )
THE HONORABLE ANN DAY, RAMON )
VALADEZ, SHARON BRONSON, RAY )
CARROLL AND RICHARD ELIAS, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE PIMA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE PIMA COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE F. ANN RODRIGUEZ, )
THE DULY ELECTED PIMA )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE BRAD R. )
NELSON, THE DULY APPOINTED )
PIMA COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HIS OFFICIAL CAPACITY; )
THE HONORABLE LENORE LORONA )
STUART, LUCY SHIPP, CASEY )
PROCHASKA, MARCO A. REYES AND )
ROBERT J. MCLENDON, THE DULY )
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ELECTED OR APPOINTED MEMBERS OF )
THE YUMA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE YUMA COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE SUSAN MARLER, )
THE DULY ELECTED YUMA )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE SHARYN )
RUNYEN, THE DULY APPOINTED )
YUMA COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE LIONEL D. RUIZ, )
SANDIE SMITH, AND JIMMIE )
B. KERR, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE PINAL COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE PINAL COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE LAURA DEAN LYTLE, )
THE DULY ELECTED PINAL )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE GILBERT B. )
HOYOS, THE DULY APPOINTED )
PINAL COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HIS OFFICIAL CAPACITY; )
THE HONORABLE DREW JOHN, JIM )
PALMER AND MARK HERRINGTON, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE GRAHAM COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE GRAHAM COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE WENDY JOHN, )
THE DULY ELECTED GRAHAM )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE JUDY )
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DICKERSON, THE DULY APPOINTED )
GRAHAM COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE DONALD STACEY, )
HECTOR RUEDAS, and DIXIE )
ZUMWALT, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE GREENLEE COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE GREENLEE COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE BERTA MANUZ, )
THE DULY ELECTED GREENLEE )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE EVON PEARSON, )
THE DULY APPOINTED )
GREENLEE COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE JIM CLAW, TOM M. )
WHITE JR., and DAVID A. BROWN, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE APACHE COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE APACHE COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE MARGARET A. )
COALTER, THE DULY ELECTED APACHE )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE PENNY L. PEW, )
THE DULY APPOINTED )
APACHE COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE PERCY DEAL, JESSE )
THOMPSON, J.R. DESPAIN, PETE )
SHUMWAY AND JERRY BROWNLOW, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE NAVAJO COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
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SOLELY IN THEIR OFFICIAL CAPACITY; )
THE NAVAJO COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE LAURETTE JUSTMAN, )
THE DULY ELECTED NAVAJO )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE KELLY )
DASTRUP, THE DULY APPOINTED )
NAVAJO COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE PAUL BABBITT, )
LIZ ARCHULETA, MATT RYAN, )
DEB HILL AND LOUISE YELLOWMAN, )
THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE COCONINO COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR 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 DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE PETE BYERS, TOM )
SOCKWELL AND BUSTER )
JOHNSON, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE MOHAVE COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE MOHAVE COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE JOAN MCCALL, )
THE DULY ELECTED MOHAVE )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE ALLEN )
TEMPERT, THE DULY APPOINTED )
MOHAVE COUNTY DIRECTOR OF )
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ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE JAY HOWE, )
CLIFFORD EDEY, AND EUGENE )
FISHER, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE LA PAZ COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE LA PAZ COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE PATRICIA L. WALL, )
THE DULY ELECTED LA PAZ )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE DONNA J. )
HALE, THE DULY APPOINTED )
LA PAZ COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE GHERAL )
BROWNLOW, LORNA STREET, AND )
CHIP DAVIS, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE YAVAPAI COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE YAVAPAI COUNTY BOARD OF )
SUPERVISORS; )
THE HONORABLE PATSY JENNEY- )
COLON, THE DULY ELECTED YAVAPAI )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE SHARON )
KEENE WRIGHT, THE DULY APPOINTED )
YAVAPAI COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE JOSE M. SANCHEZ, )
RONALD CHRISTENSEN, and CRUZ )
SALAS, THE DULY )
ELECTED OR APPOINTED MEMBERS OF )
THE GILA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED )
SOLELY IN THEIR OFFICIAL CAPACITY; )
THE GILA COUNTY BOARD OF )
SUPERVISORS; )
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THE HONORABLE LINDA HAUGHT )
ORTEGA, THE DULY ELECTED GILA )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE DIXIE )
MUNDY, THE DULY APPOINTED )
GILA COUNTY DIRECTOR OF )
ELECTIONS, WHO IS SOLELY NAMED IN )
HER OFFICIAL CAPACITY; )
THE HONORABLE JANICE K. BREWER, )
THE DULY ELECTED ARIZONA )
SECRETARY OF STATE, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY; )
)
Defendants-Appellants. )
)
____________________________________)
Appeal from the Maricopa County Superior Court
The Honorable Paul A. Katz
AFFIRMED
________________________________________________________________
Scott E. Williams Scottsdale
and
Robert E. Melton Scottsdale
Attorneys for Plaintiff-Appellee
Gammage & Burnham PLC Phoenix
By: Lisa T. Hauser
and Leonard W. Aragon
Attorneys for Defendant-Appellant Tim Sifert
Richard M. Romley, Maricopa County Attorney Phoenix
By: Bruce P. White
and Jill M. Kennedy
Attorneys for County Defendants-Appellants
Terry Goddard, Arizona Attorney General Phoenix
By: Jessica Gifford Funkhouser
Attorneys for Defendant-Appellant
Arizona Secretary of State
________________________________________________________________
R Y A N, Justice
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¶1 Arizona Revised Statutes (“A.R.S.”) section 16-314(D)
(Supp. 2003) requires that “a person seeking to fill an
unexpired vacant term for any public office shall designate the
expiration date of the term following the name of the office
being sought.” The questions this election appeal raises are
whether Tim Sifert was “seeking to fill an unexpired vacant
term” for the office of Corporation Commissioner for the
purposes of A.R.S. § 16-314(D) and, if so, whether Sifert
substantially complied with that statute. We have jurisdiction
under A.R.S. § 16-351(A) (Supp. 2003).
I.
¶2 Jim Irvin was elected to a four-year term of office as
a Corporation Commissioner beginning January 2003. In September
2003 Irvin resigned, and the governor appointed Kris Mayes to
fill the position until the next general election in accordance
with Article 15, Section 1(C), of the Arizona Constitution.
This section provides in part, “[I]n case of vacancy in the
office [of the Corporation Commission], the governor shall
appoint a commissioner to fill the vacancy. The appointed
commissioner shall fill the vacancy until a commissioner shall
be elected at a general election as provided by law, and shall
qualify.” Ariz. Const. art 15, § 1(C).
¶3 Tim Sifert timely filed nominating petitions for the
office of Corporation Commissioner. However, two different
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terms for seats on the Corporation Commission are up for
election in 2004: one seat has a term expiring January 1, 2007,
which is the office currently held by Mayes, and three seats
have terms expiring January 5, 2009. Although Sifert is seeking
the office with the term that expires on January 1, 2007, his
nominating petitions did not “designate the expiration date of
the term following the name of the office being sought.” See
A.R.S. § 16-314(D). Carl Seel, a candidate for the same office,
filed a complaint in Maricopa County Superior Court seeking an
injunction to prevent Sifert’s name from appearing on the
primary election ballot because he did not comply with A.R.S. §
16-314(D).
¶4 After a hearing, the trial court found that A.R.S. §
16-314(D) applies to the office of Corporation Commissioner with
a “term expiring January 1, 2007.” Consequently, the court
concluded that Sifert’s nominating petitions violated A.R.S. §
16-314(D) because they failed to designate the expiration date
of the term of office. As a result, the court enjoined election
officials from placing Sifert’s name on the ballot.
¶5 Sifert filed a direct appeal with this court, asking
us to overturn the trial court’s decision. In a prior order we
affirmed the judgment of the trial court and affirmed the
injunction issued by that court. We now explain our previous
order. Because this case involves an issue of statutory
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interpretation and thus presents a question of law, our review
is de novo. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177
Ariz. 526, 529, 869 P.2d 500, 503 (1994).
II.
A.
¶6 In interpreting a statute, we first look to the
statutory language “because we expect it to be ‘the best and
most reliable index of a statute’s meaning.’” State v. Williams,
175 Ariz. 98, 100, 854 P.2d 131, 133 (1993) (quoting Janson v.
Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)).
“If the language is clear, the court must ‘apply it without
resorting to other methods of statutory interpretation.’” Bilke
v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003)
(citing Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d
668, 672 (1994)). “We interpret constitutional provisions by
examining the text and, where necessary, history in an attempt
to determine the framers’ intent.” Kotterman v. Killian, 193
Ariz. 273, 288, ¶ 54, 972 P.2d 606, 621 (1999) (quoting Boswell
v. Phoenix Newspapers, Inc., 152 Ariz. 9, 12, 730 P.2d 186, 189
(1986) (emphasis added)). “Unambiguous constitutional language,
however, is to be given its plain meaning and effect.”
US W. Communications, Inc. v. Ariz. Corp. Comm’n, 201 Ariz. 242,
245, ¶ 10, 34 P.3d 351, 354 (2001). In addition, when a statute
and the constitution both address the same issue, they should be
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interpreted in harmony “when it is reasonably possible to do
so.” State v. Casey, 205 Ariz. 359, 362, ¶ 8, 71 P.3d 351, 354
(2003).
B.
¶7 Sifert argues that A.R.S. § 16-314(D) applies only
when a candidate is seeking to fill an unexpired vacant office,
and although the term of the office he is seeking is unexpired,
the office is not vacant because the governor appointed Mayes to
fill the vacancy caused by Irvin’s resignation. See Ariz.
Const. art 15, § 1(C).
¶8 Mayes can serve only until the next general election
at which “a commissioner shall be elected . . . as provided by
law.” Id. The law that applies in this situation is A.R.S. §
16-230(A)(1) (Supp. 2003). This section provides:
If a state office becomes vacant, the governor shall
appoint a person of the same political party as the
person vacating the office to fill the portion of the
term until the next regular general election. If the
vacancy occurs within the first two years of the term,
and before the date on which a nomination paper is
required to be filed as prescribed by § 16-311, a
primary election shall be held as otherwise provided
by law to determine candidates to fill the unexpired
term. At the next regular general election, the person
elected shall fill the remainder of the unexpired term
of the vacant office.
A.R.S. § 16-230(A)(1).
¶9 Sifert contends that the language of Article 15,
Section 1(C) — “shall fill the vacancy until . . . [the] general
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election . . . and shall qualify” — dictates that when a
governor has appointed someone to fill a vacancy on the
Corporation Commission, that office is no longer vacant, and
A.R.S. §§ 16-230(A)(1) and 16-314(D) therefore do not apply.
Sifert’s parsing of the language of A.R.S. § 16-230(A)(1) and
Article 15, Section 1(C), of the Arizona Constitution, is not
persuasive. Although the language in A.R.S. § 16-230(A)(1) and
Article 15, Section 1(C) are not identical, both provisions,
when read as a whole, compel the same result: the person
appointed to fill the vacant term is in office only as an
interim appointee until a full-term officer can be elected.
Regardless of whether the appointed office is Corporation
Commissioner or another public office, the office is “vacant”
for the purposes of the upcoming election. See Bolin v.
Superior Court, 85 Ariz. 131, 137-38, 333 P.2d 295, 299-300
(1958). Consequently, we reject Sifert’s contention.
III.
¶10 We also reject Sifert’s second argument, that if
A.R.S. § 16-314(D) does apply, he substantially complied with
its requirements. Sifert argues that the harm caused by the
omission is de minimis, which should not preclude the people of
Arizona from voting for him if they choose. According to
Sifert, there was no evidence that the petition signers were
harmed or confused by this omission. He points out that the
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trial court commented that it thought there was no confusion and
that it noted that no voter joined in Seel’s challenge. Because
the omission of the expiration date on the nominating petitions
appears to have been harmless, he asserts, he substantially
complied with A.R.S. § 16-314(D).
¶11 Election laws are construed liberally, and purely
technical departures from the form of the nomination petitions
will not outweigh the right of the voters to select a nominee.
Adams v. Bolin, 77 Ariz. 316, 321-22, 271 P.2d 472, 475 (1954).
We review the form of the nomination petitions to determine if
it substantially complies with the provisions of election
statutes. See Marsh v. Haws, 111 Ariz. 139, 140, 526 P.2d 161,
162 (1974).
¶12 In this case, the failure to include the expiration
date on Sifert’s nominating petitions was not a purely technical
departure from the requirements of A.R.S. § 16-314(D). Sifert
sought to run for Corporation Commissioner with a term expiring
January 1, 2007. If this were the only office for the
Corporation Commission on the 2004 ballot, then Sifert’s failure
to put the expiration date of the term of office arguably would
be harmless. But three other seats for Corporation Commissioner
are also on the ballot. The terms for these seats all expire on
January 5, 2009. Therefore, without the expiration date on
Sifert’s nomination petitions, petition signers could not
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possibly have known which seat Sifert was seeking. Although the
trial judge speculated that the petition signers were not
confused,1 he nevertheless concluded that, as a matter of law,
Sifert’s nomination petitions “were not in substantial
compliance with A.R.S. § 16-314(D).” Because four seats on the
Corporation Commission are up for election, and three have one
expiration date, while the fourth has another, we agree with the
trial court’s conclusion that Sifert did not substantially
comply with the provisions of A.R.S. § 16-314(D).
IV.
¶13 For the reasons discussed, we affirm the decision of
the trial court. We also award the costs of this appeal to Seel
pursuant to A.R.S. § 12-342(A) (2003).
__________________________________
Michael D. Ryan, Justice
CONCURRING:
_________________________________________
Charles E. Jones, Chief Justice
_________________________________________
Ruth V. McGregor, Vice Chief Justice
* Pursuant to Article 6, Section 2, of the Arizona Constitution,
this case was heard by a panel of three justices of this court.
1
No evidence in the record supports a finding whether the
petition signers were confused or not.
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