Jill Kennedy v. Joseph Lodge

SUPREME COURT OF ARIZONA
In Division

JILL KENNEDY, an individual and ) Arizona Supreme Court
qualified elector, ) No. CV-12-0221-AP/EL
)
Plaintiff/Appellee, ) Coconino County
) Superior Court
v. ) No. CV2012-00386
)
JOSEPH LODGE, an individual, )
Real Party in Interest, )
THE HONORABLE CARL TAYLOR, MATT ) O P I N I O N
RYAN, 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 )
NAMED SOLELY IN HER OFFICIAL )
CAPACITY, )
)
Defendants/Appellants. )
_________________________________ )

Appeal from the Superior Court in Coconino County
The Honorable Michael R. Bluff, Judge

AFFIRMED
________________________________________________________________

WILLIAMS, ZINMAN, & PARHAM, P.C. Scottsdale
By Scott E. Williams
Mark B. Zinman
Melissa A. Parham
Attorneys for Jill Kennedy

COPPERSMITH, SCHERMER, & BROCKELMAN, PLC Phoenix
By Andrew S. Gordon
Roopali Hardin Desai
Attorneys for Joseph Lodge
________________________________________________________________

B E R C H, Chief Justice

¶1 On June 27, 2012, we issued an order affirming the

superior court’s judgment that nominating petitions designating

the office sought as “Superior Court,” without specifying the

office and division number, did not substantially comply with

A.R.S. §§ 16-314 (Supp. 2011), -331, and -333 (2006). This

opinion explains our reasoning.

I. FACTS AND PROCEDURAL HISTORY

¶2 Joseph Lodge is a judge of Division Five of the

Superior Court in Coconino County who seeks to run for election

to a new term in that office. Two Coconino County judgeships,

Division Three and Division Five, are up for election this year.

The primary election is scheduled for August 28, 2012.

¶3 To qualify for the primary election ballot, Lodge

needed to obtain 525 valid signatures on his nominating

petitions. See A.R.S. §§ 16-314, -322(A)(4) (Supp. 2011)

(requiring certain percentage of qualified electors to sign

nominating petitions for superior court judge). He timely filed

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99 nominating petitions containing a total of 1,110 signatures.

Each petition states that Lodge is running for the office of

“Superior Court.” The petitions do not specify that he is

running for the office of “Judge,” nor do they specify that he

seeks election to Division Five.

¶4 Jill Kennedy, a qualified elector, challenged Lodge’s

petitions, arguing that they do not substantially comply with

A.R.S. §§ 16-314, -331, and -333 because they do not specify the

office that Lodge was seeking. At an evidentiary hearing below,

however, Lodge and several of his petition circulators testified

that when they circulated petitions they told signers that Lodge

was running for superior court judge in Division Five. The

circulators also testified that they offered cards to signers

specifying the division number. Other testimony indicated that

some petition signers, after looking at Lodge’s petition,

inquired as to the office for which he was running.

¶5 The superior court found “insufficient evidence . . .

to establish whether or not petition signers were . . . actually

confused or misled” by the petitions. The court concluded that

“electors signing Mr. Lodge’s petitions would not know by

reading the petition what office” and division within the

superior court he was seeking. After ruling that none of

Lodge’s petitions substantially complied with the applicable

statutes, the court entered judgment for Kennedy and ordered

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that Lodge’s name not be placed on the 2012 primary or general

election ballots.

¶6 Lodge timely appealed. We have jurisdiction pursuant

to Rule 8.1 of the Arizona Rules of Civil Appellate Procedure,

Article 6, Section 5(3) of the Arizona Constitution, and A.R.S.

§ 16-351(A) (Supp. 2011), which provides for a direct appeal to

this Court.

II. DISCUSSION

¶7 We review de novo whether a petition form substantially

complies with statutory requirements. Moreno v. Jones, 213

Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006). In making

this determination, this Court “has focused on whether the

omission of information could confuse or mislead electors

signing the petition.” Id. ¶ 42 (citation omitted); Bee v. Day,

218 Ariz. 505, 508 ¶ 13, 189 P.3d 1078, 1081 (2008); see also

A.R.S. § 16-333 (“Any petition filed by a candidate for

[superior] court which does not comply with the provisions of

this chapter shall have no force or effect.”). Thus, we must

determine whether the omission of the office or the division

number from Lodge’s petitions could have confused or misled the

electors who signed them.

A. Omission of the Office Designation “Judge”

¶8 The omission of the word “Judge” from Lodge’s petitions

does not render the petitions fatally defective. Our opinion in

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Moreno is instructive. There, an elector challenged the

validity of a state senate candidate’s petition that omitted the

specific date of the primary election and included only the year

of the election. Moreno, 213 Ariz. at 101-02 ¶¶ 40-42, 139 P.3d

at 619-20. We concluded that the omitted information could not

have confused or misled electors because there is only one

primary election for state legislative office in any election

year. Id. at 102 ¶ 44, 139 P.3d at 620. We therefore held that

electors would “automatically know for which primary election

they were signing.” Id. ¶ 45 (internal quotes omitted); see

also Bee, 218 Ariz. at 508 ¶¶ 13-14, 189 P.3d at 1081 (holding

that the omission of the expiration date of the candidate’s

unexpired vacant term was not fatal because only one seat for

that office was open in that election).

¶9 Likewise, only one Coconino County Superior Court

office is up for election this year: superior court judge.

Therefore, electors would automatically know for which office

they were signing. The omission of “Judge” from Lodge’s

petitions could not have confused or misled signers and, thus,

does not render the petitions fatally defective.

B. Omission of the Division Number

¶10 We turn to the omission of the division number from

Lodge’s petitions. Arizona law provides that if “two or more

judges of the superior court are to be . . . elected for the

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same term, it shall be deemed that there are as many separate

offices to be filled as there are judges of the superior court

to be elected.” A.R.S. § 16-331(A). Further, each office must

be “designated by the distinguishing number of the division of

the court,” id., and that designation “shall be used on all

nominating petitions,” id. § 16-331(B); see also Ariz. Const.

art. 6, § 12(A) (requiring ballots for superior court judicial

candidates to include “the division and title of the office”).

Thus, each superior court judgeship is a separate office

identifiable by the particular division to which the candidate

seeks election. And, as Lodge acknowledges, a “petition signer

needs to know for which division he is nominating someone

because he can only nominate one candidate for each division.”

See A.R.S. § 16-314(C).

¶11 In Marsh v. Haws, the plaintiff challenged the validity

of three candidates’ petitions to run for the office of Justice

of the Peace for the South Phoenix Precinct. 111 Ariz. 139,

140, 526 P.2d 161, 162 (1974) (per curiam). Two of the

candidates’ petitions listed the office as “Justice of the

Peace,” without specifying the precinct. Id. At the time,

Maricopa County had seventeen Justice of the Peace precincts,

fourteen of which were up for election that year. Id. We held

that the petitions for these two candidates did not

substantially comply with statutory requirements because

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electors could not determine from the face of the petitions for

which precinct the candidates were running. Id.

¶12 Like the petitions in Marsh, Lodge’s petitions did not

include any information that would inform the petition signers

of the division for which he was running. Because of that

material omission, a signer would not “automatically know that

he was nominating a candidate for the office” of Division Five

of the Coconino County Superior Court. Moreno, 213 Ariz. at 102

¶ 43, 139 P.3d at 620 (quoting Marsh, 111 Ariz. at 140, 526 P.2d

at 162). Lodge’s nominating petitions therefore do not

substantially comply with statutory requirements. See A.R.S.

§ 16-331(A); see also Marsh, 111 Ariz. at 140, 526 P.2d at 162.

¶13 Lodge argues that his petitions substantially complied

because little evidence showed that electors were actually

confused or misled by the omission. He asserts that electors

were aware of the division for which he was running because he

and some petition circulators handed out palm cards, wore

campaign stickers, posted campaign signs, and recited a speech —

all of which identified Lodge as a candidate for superior court

judge in Division Five. We conclude, however, that this

extrinsic information cannot be used to cure the defect in his

petitions.

¶14 To support his claim that we should consider evidence

extrinsic to the petitions to show voters’ lack of confusion,

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Lodge relies on Clifton v. Decillis, 187 Ariz. 112, 116, 927

P.2d 772, 776 (1996), in which we held that an independent

candidate’s petitions substantially complied with statutory

requirements despite leaving blank the space reserved for party

designation. Although we noted in Clifton that the candidate

told each elector that she was running as an independent, that

extrinsic information did not factor into our substantial

compliance analysis. Id. at 113, 927 P.2d at 773. Rather, we

concluded that the party designation was not essential to an

independent candidacy because independent candidates do not run

in primary elections and, by definition, have no party

designation. Id. at 115-16, 927 P.2d at 775-76. Because party

designation was not essential, its omission was not fatal to the

petitions. Clifton does not support Lodge’s use of and reliance

on extrinsic evidence in the context presented here.

¶15 The relevant inquiry thus is whether the nominating

petition itself substantially complies with statutory

requirements. See Bee, 218 Ariz. at 508 ¶ 12, 189 P.3d at 1081

(“In reviewing non-compliance with any component of the form,

the relevant inquiry is whether the form as a whole

substantially complies with the statutory requirements.”

(emphasis added)). Allowing candidates to compensate for

petition defects with extrinsic evidence that such defects did

not result in voter confusion would eviscerate the statutory

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requirement that all essential information be made available to

the elector on the petition form. See A.R.S. §§ 16-314(C),

-331, -333. Furthermore, it would encourage an inquiry into

whether each signer was actually confused or misled, a

determination that could be made here only by ascertaining

whether at least 525 qualified petition signers understood that

Lodge was running for judge of Division Five when each signed

Lodge’s petition. This is precisely the type of inquiry that

the statutory petition requirements are designed to avoid.

¶16 The applicable statutes require superior court judicial

nominating petitions to specifically designate the division

number of the judicial office sought. Under our cases, the

relevant inquiry is whether an elector would know just by

reading his petitions for which division Lodge was running. The

petitions here fail to adequately inform electors that Lodge

sought election to Division Five because they do not specify any

division and more than one division is up for election in this

cycle. Accordingly, the petitions failed to substantially

comply with statutory requirements.

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III. CONCLUSION

¶17 For the foregoing reasons, we affirm the judgment of

the superior court.

__________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

___________________________________
A. John Pelander, Justice

___________________________________
Robert M. Brutinel, Justice

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