Bahney Dedolph v. Lois Jean McDermott

SUPREME COURT OF ARIZONA
In Division

BAHNEY DEDOLPH, ) Arizona Supreme Court
) No. CV-12-0226-AP/EL
Plaintiff/Appellee, )
) Maricopa County
v. ) Superior Court
) No. CV2012-009302
LOIS JEAN McDERMOTT, Democratic )
Primary Candidate for Arizona )
House of Representatives, )
Legislative District 24; KEN ) O P I N I O N
BENNETT, Secretary of State; )
HELEN PURCELL, Maricopa County )
Recorder; KAREN OSBORNE, )
Maricopa County Director of )
Elections; FULTON BROCK, )
Maricopa County Supervisor; )
DON STAPLEY, Maricopa County )
Supervisor; ANDY KUNASEK, )
Maricopa County Supervisor; )
MAX WILSON, Maricopa County )
Supervisor; MARY ROSE WILCOX, )
Maricopa County Supervisor, )
)
Defendants/Appellants. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Arthur T. Anderson, Judge

AFFIRMED IN PART, REVERSED IN PART
________________________________________________________________

COPPERSMITH SCHERMER & BROCKELMAN PLC Phoenix
By Andrew S. Gordon
Roopali H. Desai
Attorneys for Bahney Dedolph

SNELL & WILMER, L.L.P. Phoenix
By Kory A. Langhofer
Ian M. Fischer
Attorneys for Lois Jean McDermott

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor
J. Kenneth Mangum
Attorneys for Helen Purcell, Karen Osborne, Fulton Brock,
Donald T. Stapley, Jr., Andrew Kunasek, Max Wilson, and
Mary Rose Wilcox

_______________________________________________________________

B A L E S, Vice Chief Justice

¶1 This case concerns a challenge to the nomination of

Lois Jean McDermott, a Democratic candidate for the Arizona

House of Representatives in Legislative District 24. McDermott

appealed from a superior court judgment striking her from the

primary election ballot because she incorrectly identified her

surname as “Cheuvront-McDermott” in her nomination paper. We

issued an order affirming in part and reversing in part,

concluding that McDermott could appear on the ballot as

“McDermott, Jean Cheuvront.” This opinion explains our

reasoning.

I.

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

partisan primary election must file a nomination paper that

identifies, among other things, “the exact manner in which the

person desires to have the person’s name printed on the official

ballot pursuant to subsection G.” A.R.S. § 16-311(A).

2

Subsection G further provides that the person’s name

shall be limited to the candidate's surname and given
name or names, an abbreviated version of such names or
appropriate initials such as “Bob” for “Robert”, “Jim”
for “James”, “Wm.” for “William” or “S.” for “Samuel”.
Nicknames are permissible, but in no event shall
nicknames, abbreviated versions or initials of given
names suggest reference to professional, fraternal,
religious or military titles. No other descriptive
name or names shall be printed on the official ballot,
except as provided in this section. Candidates’
abbreviated names or nicknames may be printed within
quotation marks. The candidate's surname shall be
printed first, followed by the given name or names.

¶3 “A person who does not file a timely nomination paper

that complies with [§ 16-311] is not eligible to have the

person’s name printed on the official ballot for that office.”

Id. § 16-311(H). Under well-settled law, however, “we do not

remove candidates from the ballot for mere technical departures”

from the statutorily required forms. Bee v. Day, 218 Ariz. 505,

507 ¶¶ 9-10, 189 P.3d 1078, 1080 (2008). Respecting the

electors’ right to nominate legitimate candidates, we assess

whether nominating papers substantially comply with the

statutory requirements. See id.

¶4 Bahney Dedolph brought this action seeking to

disqualify McDermott because her nomination paper stated that

she desired to appear on the ballot as “Cheuvront-McDermott,

Jean” when her legal surname is McDermott. McDermott responded

by arguing that this challenge was untimely under A.R.S. § 16-

351; that § 16-311(G) allowed her to identify herself as
3

“Cheuvront-McDermott” as a nickname; and, in any event, that she

had substantially complied with the statutory requirements.

¶5 The trial court held an evidentiary hearing, at which

the following facts were undisputed. In 1957, McDermott, who

had moved to Phoenix the preceding year, married Jerry Cheuvront

and changed her name to Lois Jean Cheuvront. The next year, the

couple moved into the area that is now District 24, where they

lived until the 1970s and McDermott taught in public schools.

Students and parents knew her under her married name Cheuvront.

In the mid-1970s, McDermott moved out of District 24, but she

continued working at a hospital and art museum there. She also

maintained business dealings in the district under the name of

Cheuvront, both as a realtor and through her husband’s

construction company. In 1984, she moved back to District 24

for several years before relocating to Massachusetts in 1988.

¶6 In 1989, McDermott remarried and changed her legal

surname from Cheuvront to McDermott. After Mr. McDermott became

ill in 1993, the couple moved to Phoenix. In 1998, she

successfully ran for precinct committeewoman as Jean McDermott.

After Mr. McDermott died in 2002, she again ran for precinct

committeewoman as Jean McDermott in 2002, 2004, and 2006.

¶7 McDermott now again lives in District 24. She

testified that, because she was known as Jean Cheuvront when she

previously lived in this district, she often introduces herself
4

as Jean Cheuvront-McDermott or clarifies that her previous name

was Cheuvront. As a candidate for the House of Representatives

for District 24, McDermott circulated nomination petition forms

for electors to sign that identified her as “Jean Cheuvront

McDermott.” Dedolph does not dispute that McDermott obtained

sufficient signatures to qualify for the ballot.

¶8 The superior court ruled that Dedolph’s challenge was

timely, that McDermott had not complied with § 16-311 because

“Cheuvront-McDermott” is not her surname, and that she also had

not substantially complied with the statute. Accordingly, the

superior court ordered that McDermott not be listed as a

candidate on the 2012 primary election ballot. McDermott filed

a timely appeal with this Court pursuant to § 16-351(A) and

ARCAP 8.1.

II.

¶9 McDermott first argues that Dedolph’s challenge to her

nomination was untimely under § 16-351(A), which provides that

such actions must be filed “no later than 5:00 p.m. of the tenth

day, excluding Saturday, Sunday and other legal holidays, after

the last day for filing nominating papers and petitions.” The

deadline for filing nominating papers and petitions was May 30,

2012. See § 16-311(A). Because the tenth day after May 30 was

June 9, a Saturday, McDermott concludes that the deadline for

filing a challenge to her nomination was Monday, June 11, 2012.
5

Dedolph filed this action on Wednesday, June 13.

¶10 Before 2003, § 16-351(A) required that nomination

challenges be filed “within ten days, excluding Saturday, Sunday

and other legal holidays, after the last day for filing

nomination papers and petitions.” We construed that language as

“giv[ing] an elector ten business days after the petition filing

deadline to challenge the validity of signatures on nomination

petitions.” Powers v. Carpenter, 203 Ariz. 116, 119 ¶ 15, 51

P.3d 338, 341 (2002). Dedolph filed her challenge on the tenth

business day after the May 30 petition filing deadline.

¶11 McDermott argues that § 16-351(A) no longer allows

nomination challenges to be filed within ten business days after

the petition filing deadline. In 2003, the legislature amended

the statute by replacing “within ten days” with the phrase “no

later than 5:00 p.m. of the tenth day.” 2003 Ariz. Sess. Laws,

ch. 233, § 5 (1st Reg. Sess.). Based on this amendment,

McDermott contends that challenges now must be filed within ten

calendar days after the petition filing deadline, unless the

tenth day falls on a Saturday, Sunday, or other legal holiday.

¶12 We disagree. Under McDermott’s interpretation, the

phrase “excluding Saturday, Sunday and other legal holidays”

would effectively be rendered superfluous. Even without this

language, if the deadline falls on one of the identified days, a

challenge filed on the next business day would be timely. See
6

Bohart v. Hannah, 213 Ariz. 480, 482 n.2 ¶ 7, 143 P.3d 1021,

1023 n.2 (2006) (noting that under § 16-351(A), if five-

calendar-day deadline falls on Saturday, Sunday, or a holiday,

notice of appeal is timely when filed on the next business day);

A.R.S. § 1-303 (allowing performance on next business day when

deadline falls on a holiday). Moreover, McDermott’s

interpretation implies that the legislature, through the 2003

amendment, intended to significantly reduce the time for filing

nomination petition challenges by replacing the ten-business-day

period with a ten-calendar-day period. If the legislature had

intended this result, it could have simply provided that

nomination challenges must be filed “not later than 5:00 p.m.

within ten days after” the petition filing deadline. Instead,

the legislature evidently intended to set a 5:00 p.m. deadline

on the tenth business day after the petition filing deadline.

See Ariz. State Senate, Fact Sheet for S.B. 1046, 46th Leg., 1st

Reg. Sess. (Feb. 23, 2003) (noting that 2003 amendment

“[c]larifies that the deadline for filing any court action

challenging the nomination of candidates is 5:00 p.m. of the

10th day following the last day for filing nominating papers and

petitions, excluding weekends and legal holidays”).

¶13 Dedolph timely filed her challenge by 5:00 p.m. on the

tenth business day after the petition filing deadline.

7

III.

¶14 McDermott argues that § 16-311(G) allowed her to list

her name on the ballot as “Cheuvront-McDermott, Jean” and,

alternatively, that she should remain on the ballot because she

substantially complied with the statutory requirements.

¶15 We agree with the superior court that McDermott did

not technically comply with § 16-311(G). The first sentence of

subsection (G) requires a candidate to specify how his or her

name should appear on the official ballot, restricting the

choices to “the candidate’s surname and given name or names, an

abbreviated version of such names or appropriate initials such

as “Bob” for “Robert”, “Jim” for James, “Wm.” for “William” or

“S.” for “Samuel.”” McDermott notes that the next sentence

provides that “[n]icknames are permissible, but in no event

shall nicknames, abbreviated versions or initials of given names

suggest reference to professional, fraternal, religious or

military titles.” She then contends that “Cheuvront-McDermott”

is a permissible “nickname surname” under the statute.

¶16 Under § 16-311(G), a candidate must list his or her

legal surname in the nomination papers, and that name must

appear first on the ballot. The statute begins by directing

that the candidate’s name “shall be limited to the candidate’s

surname and given name or names, an abbreviated version of such

names or appropriate initials,” and it concludes by requiring
8

that “[t]he candidate’s surname shall be printed first, followed

by the given name or names.” Id. (emphasis added). The

intervening statutory declaration that “[n]icknames are

permissible” allows nicknames in addition to or in place of a

candidate’s given name, but it does not allow the substitution

of a nickname for the required surname. For example, the

statute might have allowed Ernest W. McFarland to appear on the

ballot as “McFarland, Ernest ‘Mac’”, because his nickname was

“Mac,” but it would not have allowed him to use “Mac” in lieu of

his surname. Cf. James W. Johnson, Arizona Politicians: The

Noble and the Notorious 62, 65 (2002) (discussing political

career of Ernest “Mac” McFarland as U.S. Senator, Arizona

Governor, and Arizona Supreme Court Justice).

¶17 If McDermott wanted the ballot to reflect that she is

also known as Cheuvront, she should have listed her name in the

nomination paper as “McDermott, Jean Cheuvront” rather than

“Cheuvront-McDermott, Jean.” Because she did not strictly

comply with § 16-311(G), we must consider whether she

substantially complied, an issue we review de novo. Moreno v.

Jones, 213 Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006).

This analysis considers the nomination paper as a whole, see

Bee, 218 Ariz. at 507-08 ¶ 12, 189 P.3d at 1080-81, and

“focuse[s] on whether the omission of information could confuse

or mislead electors,” Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d at
9

620.

¶18 McDermott substantially complied with § 16-311(G).

Her nomination petition forms listed her name as “Jean Cheuvront

McDermott,” three names by which she has been known. She could

have used nominating petitions in this form if she had listed

her name as “McDermott, Jean Cheuvront” in her nomination paper

filed under § 16-311(G). Nothing suggests that McDermott’s

listing her name as “Cheuvront-McDermott, Jean” in her

nomination paper would cause electors signing her nomination

petitions to be confused or misled about her identity.

¶19 Our conclusion that McDermott substantially complied

with the requirements in § 16-311(G) does not mean that she

should appear on the ballot as “Cheuvront-McDermott, Jean.” The

statute directs that “[t]he candidate’s surname shall be printed

first,” and McDermott’s substantial compliance does not relieve

the election officials responsible for printing the ballots from

this statutory requirement. See A.R.S. § 16-503 (duty to

prepare ballots containing the names of candidates).

Accordingly, we ordered that McDermott’s name be printed on the

primary ballot as “McDermott, Jean Cheuvront.”

10

IV.

¶20 For the foregoing reasons, we affirmed in part and

reversed in part the judgment of the superior court.

___________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

___________________________________
Rebecca White Berch, Chief Justice

___________________________________
Robert M. Brutinel, Justice

11