Klebba v. Carpenter

SUPREME COURT OF ARIZONA
In Division

KAY KLEBBA, an individual and ) Arizona Supreme Court
qualified elector, ) No. CV-06-0239-AP/EL
)
Plaintiff/Appellant/ )
Cross-Appellee, ) Maricopa County
) Superior Court
v. ) No. CV2006-007339
)
TED CARPENTER, an individual, )
) O P I N I O N
Defendant/Appellee/ )
Cross-Appellant, )
)
THE HONORABLE R. FULTON BROCK, )
DON STAPLEY, ANDREW KUNASEK, MAX )
W. WILSON, 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 JANICE )
K. BREWER, THE DULY ELECTED )
ARIZONA SECRETARY OF STATE, WHO )
IS NAMED SOLELY IN HER OFFICIAL )
CAPACITY, )
)
Defendants. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge

APPEAL DISMISSED

________________________________________________________________

BOATES & CRUMP PLLC Anthem
By Craighton T. Boates
Attorneys for Kay Klebba

CANTELME & BROWN PLC Phoenix
By David J. Cantelme
D. Aaron Brown
Attorneys for Ted Carpenter

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Bruce P. White, Deputy County Attorney
Attorneys for R. Fulton Brock, Don Stapley, Andrew Kunasek,
Max Wilson, Mary Rose Wilcox, Helen Purcell, and Karen Osborne

TERRI SKLADANY, ACTING ARIZONA ATTORNEY GENERAL Phoenix
By Diana L. Varela, Assistant Attorney General
Attorneys for Janice Brewer, Arizona Secretary of State
________________________________________________________________

H U R W I T Z, Justice

¶1 This case arises out of a challenge to nomination

petitions filed by Ted Carpenter, a Republican candidate for the

State Senate in Legislative District 6. We previously ordered

this appeal dismissed for lack of jurisdiction; this opinion

explains our reasoning.

I.

¶2 After Carpenter submitted his nomination petitions,

Kay Klebba, a registered voter in District 6, filed this action

alleging that Carpenter had improperly verified a petition.

After an evidentiary hearing, the superior court held that

Carpenter was not the person before whom the signatures were

written on the challenged petition and invalidated all

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signatures on that petition. See Ariz. Rev. Stat. (“A.R.S.”) §

16-321(D) (Supp. 2005) (requiring “[t]he person before whom the

signatures were written” to verify signatures); Brousseau v.

Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984)

(holding that no signatures on “petitions containing false

certifications” may be considered). The court held, however,

that Carpenter had not committed “petition forgery” under A.R.S.

§ 16-351(F) (Supp. 2005), and refused to disqualify all other

petitions submitted by him on that ground. Because Carpenter

still had sufficient valid signatures to qualify for the ballot

after the signatures on the challenged petition were stricken,

the superior court found for Carpenter.

¶3 The trial judge announced his decision in open court

on July 6, 2006. An unsigned minute entry memorializing the

decision was entered on July 10, 2006. Klebba filed a notice of

appeal on July 13, 2006.

II.

¶4 Carpenter argues that the appeal is untimely under

A.R.S. § 16-351(A). Section 16-351(A), which governs challenges

to nomination petitions, requires that a “notice of appeal shall

be filed within five days after the decision of the superior

court in the action.” Carpenter contends that the oral ruling

in open court on July 6 was the “decision” of the superior

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court, and that notice of appeal was therefore filed two days

late.1

¶5 Klebba, in turn, argues that because Arizona Rule of

Civil Procedure 58(a) requires that “all judgments shall be in

writing and signed by a judge,” the July 6 oral ruling did not

trigger the five-day appeal period. Recognizing that no signed

order has been entered by the superior court, Klebba asks that

we treat her notice of appeal as having been prematurely filed

and entertain the appeal on the merits.

III.

¶6 Section 16-351(A) directs the superior court to

“render a decision” on a challenge to nomination petitions

“[w]ithin ten days after the filing of the action”2 and requires

a notice of appeal to be filed “within five days after the

decision of the superior court.” The legislative choice of the

word “decision” rather than “judgment,” however, does not mean

that Rule 58(a) is inapplicable. Arizona Rule of Civil

Procedure 54(a) defines the term “judgment” broadly, to include

1
“[T]he five days allowed to appeal a decision in a
challenge to the nomination of a candidate includes weekends and
holidays.” Bohart v. Hanna, __ Ariz. __, __ ¶ 7, __ P.3d __, __
(2006).
2
“[T]he ten day requirement for action by the superior court
is directory and not mandatory,” Brousseau, 138 Ariz. at 456,
675 P.2d at 716, but the five day appeal period is mandatory,
id. (citing Bedard v. Gonzales, 120 Ariz. 19, 583 P.2d 906
(1978)).

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any decree or order “from which an appeal lies.” The

requirement in Rule 58(a) that “all judgments shall be in

writing and signed by a judge” therefore applies not only to

final judgments disposing of all issues between the parties, but

also to any other orders made appealable by statute.3

¶7 Section 16-351(A) expressly provides that the

“decision” of the superior court in a case involving nomination

petitions is “appealable” to this Court. Therefore, the

“decision” in this case is also a “judgment” as defined in Rule

54(a).4 Rule 58(a) thus requires that the decision be in

3
The general appeals statute, A.R.S. § 12-2101 (2003),
contains numerous provisions providing for appeals from
interlocutory “orders.” For example, A.R.S. § 12-2101(C)
provides for appeal of “any special order made after final
judgment”; § 12-2101(F)(2) permits appeal from an order granting
or denying an injunction; § 12-2101(F)(3) permits appeal from an
order that dissolves or refuses to dissolve an attachment or
garnishment. Our cases have interpreted Rule 58(a) to require
that such appealable “orders” be in writing and signed by a
judge. See, e.g., Eaton Fruit Co. v. Cal. Spray-Chem. Corp.,
102 Ariz. 129, 130, 426 P.2d 397, 398 (1967) (requiring signed
writing for appeal of order denying motion for new trial); State
v. Birmingham, 96 Ariz. 109, 112, 392 P.2d 775, 777 (1964)
(requiring signed written order for appeal of permanent
injunction).
4
Whether an order is also a “judgment” under Rule 54(a)
therefore turns on whether the relevant statute provides for
appeal from that order. See Musa v. Adrian, 130 Ariz. 311, 312,
636 P.2d 89, 90 (1981) (“[A]bsent a pertinent provision in the
Arizona Constitution, the right of appeal exists only by
statute.”). Thus, in Devenir Associates v. City of Phoenix,
interpreting a statute requiring the tax court to render a
“decision in writing,” but only allowing an appeal from a final
“judgment,” we held the decision was not itself an appealable
judgment. 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991).

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writing, signed by the court, and entered before an appeal can

be taken.

¶8 We find no evidence that the legislature intended in §

16-351(A) to depart from the general requirements of Rules 54(a)

and 58(a) with respect to the form of appealable orders.

Although the election statutes mandate that challenges to

nomination petitions be tried and appealed expeditiously,

requiring that the appealable “decision” be in the form

specified by Rule 58(a) need not impose any delay.5 Superior

courts can and should enter such signed decisions within the

ten-day limit imposed in § 16-351(A). If the court does not

immediately enter the written and signed decision on its own

accord, any party can provide a written decision to the superior

court for signing and entry within the ten-day period. See

Howard P. Foley Co. v. Harris, 4 Ariz. App. 294, 296, 419 P.2d

735, 737 (1967); 1 State Bar of Arizona, Arizona Appellate

Handbook § 3.3.2.2 (4th ed. 2000).

______________________________________
5
In Bedard, this Court declined to apply the time-exclusion
provisions of Arizona Rule of Civil Procedure 6(a) to a
predecessor statute of § 16-351, because “the time elements in
the elections statutes [are] to be construed strictly.” 120
Ariz. at 20, 583 P.2d at 907. In contrast, application of Rule
58(a) will not affect the time elements in the elections
statutes. The ten-day statutory period for rendering a decision
remains applicable; the decision simply must be in the form
required by Rule 58(a).

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IV.

¶9 We therefore agree with Klebba’s argument that her

notice of appeal was not late, but rather premature. We

disagree, however, with Klebba’s suggestion that we should

nonetheless exercise jurisdiction. We have exercised appellate

jurisdiction when a signed written order was entered after the

notice of appeal was filed. See Barassi v. Matison, 130 Ariz.

418, 420-21, 636 P.2d 1200, 1202-03 (1981). But where no signed

order has ever been entered, the notice of appeal is simply

ineffective to confer jurisdiction on an appellate court. Eaton

Fruit Co. v. Cal. Spray-Chem. Corp., 102 Ariz. 129, 130, 426

P.2d 397, 398 (1967).

¶10 In the usual case, we would suspend the appeal in

order to allow the entry of the requisite signed order in the

superior court. Id. But such an approach here would be wholly

inconsistent with the expedited timeframes of the elections

statutes. Section 16-351(A) directs that the decision be made

by the superior court within ten days of the filing of the

action and requires that an appeal be filed within five days

thereafter. The statute thus places the burden to act with

celerity not only on the superior court, but also on the party

challenging nomination petitions. By failing to obtain a

written and signed decision within the statutory period, Klebba

has made it impossible for us to exercise appellate review in a

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timely fashion. We therefore decline to suspend the appeal and

remand, and instead dismiss the appeal for lack of jurisdiction.

__________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
W. Scott Bales, Justice

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