Moreno v. Jones

SUPREME COURT OF ARIZONA
In Division

PAUL MORENO, ) Arizona Supreme Court
) No. CV-06-0237-AP/EL
Plaintiff/Appellee, )
) Maricopa County
v. ) Superior Court
) No. CV 2006-009745
RUSSELL L. JONES, )
)
Defendant/Appellant, )
) O P I N I O N
)
JAN BREWER, ARIZONA SECRETARY OF )
STATE; EUGENE FISHER, in his )
official capacity as a member of )
the LA PAZ COUNTY BOARD OF )
SUPERVISORS; CLIFFORD EDEY, in )
his official capacity as a )
member of the LA PAZ COUNTY )
BOARD OF SUPERVISORS; MARY SCOTT, )
in her official capacity as a )
member of the LA PAZ COUNTY )
BOARD OF SUPERVISORS; LEONORE )
LONORA STUART, in her official )
capacity as a member of the YUMA )
COUNTY BOARD OF SUPERVISORS; )
KATHRYN PROCHASKA, in her )
official capacity as a member of )
the YUMA COUNTY BOARD OF )
SUPERVISORS; MARCO A. REYES, in )
his official capacity as a )
member of the YUMA COUNTY BOARD )
OF SUPERVISORS; GREGORY F. )
FERGUSON, in his official )
capacity as a member of the YUMA )
COUNTY BOARD OF SUPERVISORS; )
SHELLEY BAKER, in her official )
capacity as Recorder for LA PAZ )
COUNTY; SUSAN HIGHTOWER MARLER, )
in her official capacity as )
Recorder for YUMA COUNTY, )
)
Defendants. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Kenneth L. Fields, Judge

REVERSED
________________________________________________________________

PERKINS COIE BROWN & BAIN PA Phoenix
By Paul F. Eckstein
Charles A. Blanchard
Rhonda L. Barnes
Patricia A. Alexander
Attorneys for Paul Moreno

TERRI SKLADANY, ACTING ARIZONA ATTORNEY GENERAL Phoenix
By Emma Lehner Mamaluy, Assistant Attorney General
Peter A. Silverman, Assistant Attorney General
Diana L. Varela, Assistant Attorney General
Attorneys for Jan Brewer

JON R. SMITH, YUMA COUNTY ATTORNEY Yuma
By Robert Lee Pickels, Jr., Deputy County Attorney
William J. Kerekes, Deputy County Attorney
Attorneys for Leonore Lonora Stuart, Kathryn Prochaska, Marco A.
Reyes, Gregory F. Ferguson, and Susan Hightower Marler

WILLIAMS & ASSOCIATES Scottsdale
By Scott E. Williams
Mark Zinman

And

LAW OFFICE OF ROBERT E. MELTON Scottsdale
By Robert E. Melton
Attorneys for Russell L. Jones

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Geraldine L. Roll, Deputy County Attorney
Attorneys for Eugene Fisher, Clifford Edey, Mary A. Scott, and
Shelley Baker
________________________________________________________________

B A L E S, Justice

¶1 This case concerns elector Paul Moreno’s challenge to

nomination petitions filed by Russell L. Jones, a Republican

2

candidate for State Senate in Legislative District 24. Jones

appealed from a superior court decision finding that he had

committed petition forgery, disqualifying him from the primary

election ballot, and declaring him ineligible for elected office

for five years. The expedited appeal was considered by a

division of this court consisting of Chief Justice McGregor,

Justice Hurwitz, and Justice Bales. On July 20, 2006, this

court issued an order holding that Jones should remain on the

ballot and stated that a written opinion would follow. This is

that opinion.

I. Procedural Background

¶2 A person seeking to appear on the ballot for a

partisan primary election must submit nomination petitions

signed by a sufficient number of qualified electors who either

belong to the candidate’s party or are not members of another

party represented on the ballot. Ariz. Rev. Stat. (“A.R.S.”) §§

16-314, -322 (Supp. 2005). Signatures on nomination petitions

must be obtained by circulators who are themselves eligible to

register to vote and who appropriately certify their collection

of the signatures. A.R.S. § 16-321(D) (Supp. 2005). The

circulator, the person “before whom the signatures were

written,” must verify, among other things, “that each of the

names on the petition was signed in his presence on the date

indicated . . . .” Id. A nomination petition is void if

3

verified by someone other than the person who actually obtained

the signatures. Brousseau v. Fitzgerald, 138 Ariz. 453, 456,

675 P.2d 713, 716 (1984).

¶3 Jones needed to submit 207 valid signatures. He filed

twenty-nine nomination petitions, containing 315 signatures,

with the Arizona Secretary of State, and he personally verified

nineteen petitions as their circulator.

¶4 On June 28, 2006, Moreno filed a timely challenge to

Jones’ petitions pursuant to A.R.S. § 16-351 (Supp. 2005).

Moreno argued that Jones should be disqualified from the ballot

because some petitions omitted information required by A.R.S. §

16-314(C); certain signatures were invalid; and Jones had

verified petitions containing signatures that he had not himself

obtained and that this conduct constituted petition forgery.

Under A.R.S. § 16-351(F), if a candidate is found guilty of

petition forgery, all of the candidate’s nominating petitions

are disqualified and the candidate is ineligible for elected

office for five years.

¶5 At trial on July 3, 2006, Jones testified that seven

petitions, which he had verified as the circulator, contained

signatures obtained at a town hall meeting in Yuma on April 17,

2006. Jones said he was present at this event while two adult

males (whose names he could not recall) were circulating his

nomination petitions, but Jones acknowledged that he had not

4

personally obtained all of the signatures. Jones also said

that, while he was generally aware that people were signing his

nomination petitions, he could not see what each person was

writing or identify particular signers.

¶6 Moreno called two witnesses who testified that they

were each approached at the April 17 town hall by a young high-

school-aged woman and asked to sign petitions for Jones.

Neither witness saw Jones in the vicinity.

¶7 With regard to petitions signed other than on April

17, Jones testified that he personally obtained all the

signatures on the petitions he verified as the circulator.

¶8 After the July 3 trial, the judge ruled that Jones was

not in fact the circulator for certain signatures obtained on

April 17. Consistent with Brousseau, the judge held that the

seven nominating petitions containing these signatures were

void, which invalidated sixty-three signatures. The trial judge

determined, however, that Jones had not committed petition

forgery with respect to these petitions, noting that Jones

attended the event at which they were circulated.

¶9 Twenty-four signatures (including nine that appeared

in the rejected nominating petitions) were found to be invalid

because the signer was ineligible or had signed more than once

on the same day. See A.R.S. § 16-321(C) (providing that if

elector signs more than one petition for the same office and the

5

signatures are dated on the same date, “all signatures by that

elector on that day are deemed invalid”). As a result, Jones

was left with 237 valid signatures. On July 5, the trial judge

entered judgment for Jones, qualifying him for the 2006 primary

election ballot.

¶10 On July 7, Moreno moved to re-open the judgment, Ariz.

R. Civ. P. 60(c), and for a new trial, Ariz. R. Civ. P. 59. The

motion alleged that Jones had testified falsely that he

personally circulated petitions on May 1 and May 2, 2006. In

support of this motion, Moreno submitted legislative attendance

records showing that Jones (currently a State Representative)

was in Phoenix at 1:30 p.m. on May 1 and on May 2. Moreno also

submitted a declaration by Barbara Harrison, who stated that she

had signed Jones’ petition in Yuma on the afternoon of May 1,

that the circulator was a woman, and that Harrison did not

recall seeing Jones there.

¶11 During a July 11 hearing on Moreno’s motion, Harrison

testified that one of Jones’ female relatives had asked her to

sign Jones’ petition in Yuma on May 1 between 2 p.m. and 3 p.m.

Harrison said she did not see Jones in the room when she signed.

The trial judge granted Moreno’s motion and held a new trial on

July 11 and 12. At this trial, Jones testified that, although

he had been in Yuma on the morning of May 1, he then flew to

Phoenix for legislative proceedings, and he remained in Phoenix

6

all day on May 2. Jones acknowledged that he could not have

obtained any signatures on May 2.

¶12 After the second trial, the judge entered a new

decision holding that not only were the seven petitions

containing signatures dated April 17 void, but that two other

petitions with signatures dated May 1 and May 2 were also void

because Jones had verified these petitions when in fact he was

in Phoenix when the signatures were obtained in Yuma. The judge

further held that Jones, by submitting these petitions to the

Secretary of State, had committed petition forgery. The judge

disqualified all of Jones’ 315 signatures, held Jones ineligible

for the primary election ballot, and barred him from seeking

elected office for five years pursuant to A.R.S. § 16-351(F).

¶13 Jones filed a timely appeal with this court pursuant

to A.R.S. § 16-351(A).

II. Indispensable Parties

¶14 As a threshold issue, Jones argues that the trial

court erred by not dismissing Moreno’s lawsuit for failure to

name indispensable parties. In a nomination petition challenge,

the plaintiff must name as defendants, among others, the board

of supervisors of the county responsible for preparing the

ballots. A.R.S. § 16-351(C)(3). Moreno, Jones argues, did not

name the Yuma County Board of Supervisors and the La Paz County

Board of Supervisors as distinct entities. Moreno, however, did

7

name each supervisor in his or her official capacity. This

satisfies the statutory requirement. Cf. Kyle v. Daniels, 198

Ariz. 304, 9 P.3d 1043 (2000) (ruling on the merits where

plaintiff had named supervisors in their official capacities).

III. Re-opening the Judgment

¶15 Jones also argues that the trial court erred in

granting Moreno’s motion to re-open the judgment under Rule

60(c)(3). This rule allows a trial judge to re-open a judgment

due to “fraud . . . , misrepresentation or other misconduct of

an adverse party” if the motion is made “within a reasonable

time” and no more than six months from entry of the order or

judgment. We review a trial judge’s decision to grant a Rule

60(c) motion for an abuse of discretion. City of Phoenix v.

Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985).

¶16 Although A.R.S. § 16-351(A) provides short time limits

for challenges to nomination petitions, the statute does not

categorically preclude the filing of a Rule 60(c) motion.

Moreno filed his motion on July 7, just two days after the trial

judge entered his initial order denying relief and well within

Moreno’s five-day deadline under A.R.S. § 16-351(A) to appeal

the decision. The trial court’s prompt disposition of the

motion did not impede this court in deciding the related appeals

in advance of the deadlines for preparing the ballot. Even

within the constrained time limits of A.R.S. § 16-351(A), we

8

find that Moreno filed his motion “within a reasonable time.”

Ariz. R. Civ. P. 60(c).

¶17 Jones also argues that the trial court erred in

granting Moreno’s Rule 60(c) motion because Jones did not

substantially impair or interfere with Moreno’s ability to

present his case. Instead, Jones argues, Moreno simply failed

to timely discover evidence that was available before trial. We

reject this argument. Although evidence regarding Jones’

legislative attendance on May 1 and May 2 was available before

the July 3 trial, Moreno did not make his Rule 60(c) motion

simply to introduce evidence he had failed to uncover earlier.

Moreno instead sought to prove that Jones had made

misrepresentations to the court in his July 3 testimony. The

false testimony that Jones had personally obtained all the

signatures he verified other than those dated April 17 clearly

influenced the trial court’s initial ruling. In these

circumstances, the trial judge did not abuse his discretion in

re-opening the judgment pursuant to Rule 60(c) or, having done

so, in granting a new trial pursuant to Rule 59(b).

IV. Petition Forgery

¶18 The trial court found that Jones had presented

petitions to the Arizona Secretary of State, which he had signed

as the circulator, knowing that he had not obtained the

signatures in his presence as required by A.R.S. § 16-321(D).

9

This conduct, the trial court further concluded, constituted

“petition forgery” within the meaning of A.R.S. § 16-351(F).

The latter statute provides that “all petitions that have been

submitted by a candidate who is found guilty of petition forgery

shall be disqualified and that candidate shall not be eligible

to seek election to a public office for a period of not less

than five years.” A.R.S. § 16-351(F).

¶19 Jones argues both that there was insufficient evidence

to support the trial court’s finding that he was not the

circulator of the petitions containing signatures dated April

17, May 1, and May 2, and that, even if he did not circulate

those petitions, his conduct in verifying them does not

constitute petition forgery under A.R.S. § 16-351(F).

¶20 We uphold a trial court’s findings of fact unless

clearly erroneous as not either “supported by reasonable

evidence or based on a reasonable conflict of evidence.” O’Hern

v. Bowling, 109 Ariz. 90, 92-93, 505 P.2d 550, 552-53 (1973).

¶21 The trial court did not clearly err in finding that

Jones was not the circulator of petitions containing signatures

dated April 17, May 1, and May 2. At trial, Jones admitted that

he personally collected only one of the signatures dated April

17 and did not know who otherwise had signed his petitions that

day. With regard to the May 1 and May 2 signatures, Jones first

testified during the July 3 trial that he personally obtained

10

them. During the second trial, however, Jones admitted that he

was in Phoenix for legislative proceedings on the afternoon of

May 1 and all day on May 2. He acknowledged that he could not

have collected signatures in Yuma at the same time.

¶22 Substantial evidence also supports the trial court’s

finding that Jones had presented to the Secretary of State

nomination petitions that he had verified as the circulator

knowing that he had not obtained the signatures in his presence

as required by A.R.S. § 16-321(D). This statute identifies the

circulator as the person “before whom the signatures were

written” and requires the circulator to verify that the

petitions have been signed in his presence. Similarly, the

petition forms that Jones signed expressly state, immediately

before his signature, “that each of the names on the petition

were signed in my presence on the date indicated.” Jones could

not have been present when petitions were signed in Yuma on the

afternoon of May 1 or on May 2, yet he nonetheless submitted

petitions that he verified had been signed in his presence on

these dates.

¶23 We must next determine whether, as a matter of law, a

candidate who falsely verifies a nomination petition as the

circulator commits petition forgery under A.R.S. § 16-351(F).

We review issues of statutory interpretation de novo. City of

11

Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 547 ¶ 8,

105 P.3d 1163, 1166 (2005).

¶24 “Petition forgery” is not defined in A.R.S. § 16-

351(F) or elsewhere in Arizona statutes. Because the term is

undefined and subject to more than one reasonable meaning, we

must look to other materials to determine the legislature’s

intent. “To discern the intent the court will examine the

policy behind the statute, the evil sought to be remedied, the

context, the language, and the historical background of the

statute.” Clifton v. DeCillis, 187 Ariz. 112, 114, 927 P.2d

772, 774 (1996).

¶25 Jones argues that “petition forgery” should be

understood to refer to the conduct proscribed in A.R.S. § 16-

1020 (1996), the penal provision of the election laws concerning

the improper signing of nomination petitions.1 Jones argues that

he signed his own name and did not violate A.R.S. § 16-1020.

¶26 Moreno, on the other hand, argues that “petition

forgery” occurs if a person violates the Criminal Code’s general

1
Under A.R.S. § 16-1020, “[a] person knowingly signing any name
other than his own to a nomination petition . . . except in a
circumstance where he signs for a person, in the presence of and
at the specific request of such person who is incapable of
signing his own name because of physical infirmity, or knowingly
signing his name more than once to a nomination petition . . .
or who is not at the time of signing a qualified elector
entitled to vote at the election initiated by the petition, is
guilty of a class 1 misdemeanor.”

12

prohibition on forgery in A.R.S. § 13-2002(a)(3) (2001), and

that this statute makes it a class four felony for a person,

with the intent to defraud, to offer or present “a forged

instrument or one that contains false information.” Id. Moreno

argues that Jones “forged” his name as the circulator of

petitions actually circulated by others.

¶27 Although the issue of statutory interpretation is not

clear cut, for several reasons we believe the most plausible

reading of A.R.S. § 16-351(F) is that “petition forgery” is

meant to refer to the conduct proscribed by A.R.S. § 16-1020,

not A.R.S. § 13-2002. First, we believe that “petition forgery”

would ordinarily be understood to refer to falsely signing

another’s name to a petition or to otherwise fabricating signed

petitions. See, e.g., Webster’s New Third International

Dictionary 891 (1976) (noting that forgery usually refers to

“the crime of falsely and with fraudulent intent making or

altering a writing or other instrument”). The definition of

“forgery” in the Criminal Code is more expansive, embracing not

only “forged” instruments (those falsely made, altered, or

completed), but also documents merely containing “false

information.” Compare A.R.S. § 13-2001(8) (Supp. 2005)

(defining “forged instrument”) with A.R.S. § 13-2002 (defining

“forgery”).

13

¶28 Second, to the extent it is necessary to look to other

statutes to interpret A.R.S. § 16-351(F), the most logical place

to look is in other provisions of the election laws. “If the

statutes relate to the same subject or have the same general

purpose-that is, statutes which are in pari materia-they should

be read in connection with, or should be construed together with

other related statutes, as though they constituted one law.”

State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d

731, 734 (1970). Without some indication that the legislature

actually intended to define petition forgery pursuant to A.R.S.

§ 13-2002, we look to other provisions within title 16. Neither

A.R.S. § 16-351(F) nor other provisions of the election laws

contain any suggestion that “petition forgery” should be defined

by reference to the Criminal Code’s general forgery provision in

A.R.S. § 13-2002.

¶29 Nor do we find persuasive Moreno’s reference to A.R.S.

13-102(D) (2001), which states: “Except as otherwise expressly

provided, or unless the context otherwise requires, the

provisions of this title shall govern the construction of and

punishment for any offense defined outside this title.” Section

16-351(F) does not define a “criminal offense,” but rather

provides a civil penalty (disqualification from the ballot and

ineligibility for public office) for certain conduct.

14

¶30 Our conclusion regarding the meaning of the term

“petition forgery” also is consistent with the somewhat murky

legislative history of A.R.S. § 16-351(F). This provision was

added by the legislature in 1996 as part of general amendments

to the election laws. These amendments, as initially approved

by the House of Representatives as House Bill (“H.B.”) 2329, did

not alter the pre-existing version of A.R.S. § 16-351.

¶31 When H.B. 2329 was considered by the Senate Government

Committee, Senator Chesley offered an amendment that would have

both amended A.R.S. § 16-1020 and added a new A.R.S. § 16-

351(F). Hearing on H.B. 2329 Before the Senate Comm. on Gov.,

42d Leg., 2d Reg. Sess. (Ariz. 1996). The amendment to A.R.S. §

16-1020 would have labeled the proscribed conduct as “petition

forgery” and increased the penalty from a class one misdemeanor

to a class four felony. Id. Senator Chesley’s amendment also

would have added a new A.R.S. § 16-351(F) with this language:

ALL PETITIONS THAT HAVE BEEN SUBMITTED BY A CANDIDATE
THAT IS FOUND GUILTY OF PETITION FORGERY PURSUANT TO
SECTION 16-1020 SHALL BE DISQUALIFIED AND THAT
CANDIDATE SHALL NOT BE ELIGIBLE TO SEEK ELECTION TO
PUBLIC OFFICE FOR A PERIOD OF NOT LESS THAN TWO YEARS.

Chesley Proposed Amendment, Hearing on H.B. 2329 Before the

Senate Comm. on Gov., 42d Leg., 2d Reg. Sess. (Ariz. 1996).

¶32 During the Senate committee discussion of the Chesley

amendment, Senator Noland and a research analyst contended that

forgery concerning nomination petitions was not subject to

15

prosecution under the general Criminal Code.2 Hearing on H.B.

2329 Before the Senate Comm. on Gov., 42d Leg., 2d Reg. Sess.

(Ariz. 1996) (statements of Senate Research Analyst Tami Ryall

and Arizona State Senator Patricia Noland). Senator Noland also

remarked that it would be difficult to prove criminal charges

and that a class four felony could result in severe penalties.

Id. After this discussion, the committee approved Senator

Noland’s motion to delete the language from the Chesley

amendment that would have amended A.R.S. § 16-1020 to label the

conduct “petition forgery” and to increase the penalty to a

class four felony. Id. The committee, however, approved

Senator Chesley’s amendment to add the new A.R.S. § 16-351(F).

Id.

¶33 The Senate Rules Committee then proposed an amendment

to the proposed A.R.S. § 16-351(F) to delete its reference to

2
Senator Noland and the analyst may have been mistaken in their
belief that a defendant must be motivated by pecuniary gain in
order to be convicted for forgery under the Criminal Code. See
State v. Thompson, 194 Ariz. 295, 297 ¶ 15, 981 P.2d 595, 597
(App. 1999) (holding that A.R.S. § 13-2002 does not require
proof of intent to cause pecuniary loss). We need not determine
here the precise contours of A.R.S. § 13-2002; the significant
point is that because at least one legislator thought “petition
forgery” was not subject to prosecution under A.R.S. § 13-2002,
it is less likely that the phrase “petition forgery” in § 16-
351(F) was meant to refer to conduct violating § 13-2002.
Moreover, there is no evidence that any legislator contemplated
violations of the general forgery statute would trigger the
civil penalties under proposed A.R.S. § 16-351(F).

16

A.R.S. § 16-1020. Senate Comm. on Rules Proposed Amendment,

Hearing on H.B. 2329 Before the Senate Comm. on Rules, 42d Leg.,

2d Reg. Sess. (Ariz. 1996). This action, however, does not

necessarily imply any substantive change in the proposed

legislation. Pursuant to legislative rules, the Rules Committee

is limited to considering the “constitutionality and proper form

and the reasonable germaneness” of the bill and proposed

amendments. Senate Rule 7(C)(5) (1995-96). The Rules Committee

can propose corrective and technical amendments, but it cannot

propose substantive amendments without concurrence from the

bill’s sponsor. Id. at 7(C)(4).

¶34 During a Committee of the Whole proceeding, the Rules

Committee amendment was withdrawn and Senator Chesley proposed a

floor amendment, to substitute for the Senate Government

Committee amendment, that omitted the reference in proposed

A.R.S. § 16-351(F) to A.R.S. § 16-1020. Bill Status Overview

for H.B. 2329, 42d Leg., 2d Reg. Sess. (Ariz. 1996). The

pertinent language of Senator Chesley’s floor amendment is as

follows:

IN ADDITION TO THE PROCEDURES SET FORTH IN THIS
SECTION, ALL PETITIONS THAT HAVE BEEN SUBMITTED BY A
CANDIDATE THAT IS FOUND GUILTY OF PETITION FORGERY
SHALL BE DISQUALIFIED AND THAT CANDIDATE SHALL NOT BE
ELIGIBLE TO SEEK ELECTION TO A PUBLIC OFFICE FOR A
PERIOD OF NOT LESS THAN TWO YEARS.

17

Chesley Proposed Floor Amendment #2, Hearing on H.B. 2329 Before

the Senate Comm. of the Whole, 42d Leg., 2d Reg. Sess. (Ariz.

1996).

¶35 Senator Hartley then proposed amending this language

to increase the disqualification period from two to five years.

Hartley Proposed Floor Amendment to Chesley Proposed Floor

Amendment #2, Hearing on H.B. 2329 Before the Senate Comm. of

the Whole, 42d Leg., 2d Reg. Sess. (Ariz. 1996). The Senate

adopted Senator Chesley’s floor amendment as amended by Senator

Hartley. Bill Status Overview for H.B. 2329, 42d Leg., 2d Reg.

Sess. (Ariz. 1996). The House of Representatives concurred with

the amended bill without substantive comment. H.B. 2329, as

amended by the Senate, enacted the language currently found in

A.R.S. § 16-351(F).

¶36 The legislative history, in summary, shows that

Senator Chesley initially proposed both to increase the penalty

for any person’s violating A.R.S. § 16-1020 to a class four

felony and to add a new § 16-351(F) providing that a candidate

found guilty of violating § 16-1020 would also have all

petitions disqualified and would be ineligible for elected

office for two years. The Legislature ultimately determined not

to increase the penalty for violating A.R.S. § 16-1020 to a

class four felony, to preserve the reference to “petition

forgery” in A.R.S. § 16-351(F) but to delete the phrase

18

“pursuant to A.R.S. § 16-1020,” and to increase the

disqualification from elected office to five years for

candidates found guilty of petition forgery. There is no

indication that any legislator contemplated that the proposed

legislation would also expand the sanctions when a person

improperly verifies nomination petitions circulated by others –

conduct that, although not reached by A.R.S. § 16-1020, results

in the voiding of the petitions under this court’s 1984 decision

in Brousseau.

¶37 We do not believe that this history suggests that the

Legislature intended the disqualification in A.R.S. § 16-351(F)

to be triggered by forgery under the general Criminal Code

provision (which is a class four felony) rather than by a

violation of A.R.S. § 16-1020. Senator Chesley introduced his

amendment to increase the penalty for violating A.R.S. § 16-1020

to a felony and to add additional sanctions for candidates who

violated this statute. This background suggests that the

Legislature thought that the conduct subject to A.R.S. § 16-1020

coincided with “petition forgery” for purposes of A.R.S. § 16-

351(F). The latter statute, as enacted, does omit the phrase

“pursuant to A.R.S. § 16-1020” after the words “found guilty of

petition forgery.” This change, however, most likely reflects a

desire to avoid suggesting that the finding that a candidate is

guilty of petition forgery must occur through a criminal

19

conviction under A.R.S. § 16-1020. Requiring a conviction to

trigger A.R.S. § 16-351(F) would largely render ineffective the

statute’s provision disqualifying all of a candidate’s submitted

petitions, as a criminal conviction rarely could be obtained

before the relevant election occurs.

¶38 We hold that petition forgery under A.R.S. § 16-351(F)

refers to conduct violating A.R.S. § 16-1020. Although Jones

improperly signed his name to the petitions of April 17, May 1,

and May 2 as the circulator, and certainly misled the court in

his July 3 testimony, his conduct did not violate A.R.S. § 16-

1020. The trial court thus erred in finding Jones guilty of

petition forgery.3

V. The Validity of Petition 20

¶39 Given our conclusion that Jones did not commit

petition forgery, whether he qualifies for the ballot turns on

the validity of petition 20. This petition was circulated by

someone other than Jones and contains fourteen signatures.

Apart from these signatures, Jones submitted 202 signatures that

3
Our decision concerning the scope of “petition forgery” under
A.R.S. § 16-351(F) does not, of course, express any view whether
a candidate’s false verification of a nominating petition or
related false testimony might merit prosecution under A.R.S. §
13-2002 (forgery), A.R.S. § 13-2702 (2001) (perjury), or other
criminal provisions.

20

have not been successfully challenged, and he needs at least 207

signatures to qualify for the ballot.4

¶40 In his cross-appeal, Moreno argues that the trial

court erred in not disqualifying the signatures on petition 20

because the petition form, by omitting the specific date of the

primary election, failed to substantially comply with the

requirements of A.R.S. § 16-314(C). Whether a petition form

substantially complies with the statutory requirements is a

“pure question of law” that we review de novo. See Clifton, 187

Ariz. at 113, 927 P.2d at 773 (reviewing sufficiency of

petitions for “nomination other than by primary” pursuant to

A.R.S. § 16-341 (1996)).

¶41 The form of nomination petitions is addressed in

A.R.S. § 16-314(C). Nomination petitions must include, in

language substantially in the form of the statute, certain

information, including the elector’s county and party

registration, the candidate’s name and address, the office in

question, and when the election is “to be held.” Here, petition

20 states that it concerns “the primary election to be held

4
As noted above, Jones submitted 315 signatures to the Secretary
of State. Eighty-three of these signatures are invalid under
Brousseau because they appear on petitions that Jones improperly
signed as the circulator (sixty-three on the seven petitions
containing signatures dated April 17 and another twenty on two
petitions containing signatures dated May 1 or May 2). Another
fifteen signatures are invalid because they are from ineligible
signers or persons who signed twice on the same day.

21

__________, 2006” without specifying the day or month of the

election.5

¶42 In determining whether a nomination petition form

substantially complies with the statutory requirements, this

court has focused on whether the omission of information could

confuse or mislead electors signing the petition. See Marsh v.

Haws, 111 Ariz. 139, 140, 526 P.2d 161, 162 (1974). Because

“the statute allows a measure of inconsistency by only requiring

substantial compliance,” Clifton, 187 Ariz. at 116, 927 P.2d at

776, “no mere irregularity can be considered, unless it be shown

that the result has been affected by such irregularity,” id.

(quoting Territory ex rel. Sherman v. Bd. of Supervisors, 2

Ariz. 248, 253, 12 P. 730, 732 (1887)).

¶43 Marsh illustrates the standard for determining

substantial compliance. In that case, two candidates had noted

on their petitions that they were running for justice of the

peace but had failed to identify the particular precinct. 111

5
With regard to nominations for partisan primary elections or
for non-partisan elections, A.R.S. § 16-314(C) (Supp. 2005)
directs, among other things, that the petitions shall include
language substantially stating “the primary election to be held
________.” In contrast, the statute governing nominations for
partisan elections other than by primary, A.R.S. § 16-341(D),
states that such petitions shall include language substantially
stating “election to be held on the _______ day of _________,
__________.” We need not decide here whether the omission of
any date whatsoever would invalidate nominating petitions
governed by A.R.S. § 16-314(C) or whether the inclusion of only
the year of the election would substantially comply with A.R.S.
§ 16-341(D).

22

Ariz. at 140, 526 P.2d at 162. The justice court precinct

boundaries did not coincide with voter registration precincts.

Id. Given this fact, this court concluded that the petitions

did not substantially comply with the statutory requirements

because there was a potential for voter confusion. Id. A voter

signing a petition “would [not] automatically know that he was

nominating a candidate for the office of ‘Justice of the Peace’”

of any particular precinct. Id.

¶44 Here, we do not believe that petition 20, by omitting

the particular day and month of the 2006 primary, created a

significant danger that electors would be confused or misled.

Moreno, citing A.R.S. § 16-204(B) (Supp. 2005), notes that under

Arizona election laws, governmental entities could hold primary

elections on four different dates in 2006. This statute,

however, concerns elections for certain local offices. Petition

20 specifies that Jones is seeking nomination to run for the

Arizona State Senate. There is only one primary election for

state legislative office – the eighth Tuesday prior to the

general election for state office, A.R.S. § 16-201 (1996), which

is held on the first Tuesday after the first Monday in November,

A.R.S. § 16-211 (1996).

¶45 In contrast to Marsh, electors would “automatically

know” for which primary election they were signing because the

petition specified the year and there is only one primary that

23

year for state legislative office. Thus, the 2006 primary

election date provided on petition 20 is in substantial

compliance. Cf. Adams v. Bolin, 77 Ariz. 316, 322, 271 P.2d

472, 476 (1954) (putting the phrases “hereinafter designated”

and “the precinct designated or indicated by my address” in the

blank provided to indicate the relevant precinct was legally

sufficient to identify elector’s precinct).

VI. Conclusion

¶46 Because we determine that improperly verifying

petitions that others actually circulated is not petition

forgery, and because Jones otherwise obtained a sufficient

number of signatures to appear on the primary election ballot,

we reverse the trial court’s judgment in favor of Moreno and

vacate the trial court’s order enjoining the public defendants

from placing Jones’ name on the primary election ballot. We

remand with instructions to enter judgment in favor of Jones.

¶47 Although we have resolved this case in Jones’ favor,

our decision is not intended to diminish the importance of the

integrity of the nomination process. By requiring the

circulator to verify the petitions, “[t]he legislature has

sought to protect the process by providing for some safeguards

in the way nomination signatures are obtained and verified.”

Brousseau, 138 Ariz. at 455, 675 P.2d at 715. Falsely

certifying a petition is a “serious matter involving more than a

24

technicality.” Id. Accordingly, we recognized in Brousseau

that petitions that are improperly certified are void. It is

for the legislature to consider, however, whether additional

sanctions – such as automatic disqualification from the election

in question or the five-year disqualification under A.R.S. § 16-

351(F) – are appropriate when a candidate falsely affirms that

he is the circulator of petitions actually circulated by others.

We conclude today only that the current version of A.R.S. § 16-

351(F) does not so provide.

________________________________
W. Scott Bales, Justice

CONCURRING:

__________________________________
Ruth V. McGregor, Chief Justice

__________________________________
Andrew D. Hurwitz, Justice

25