FILED BY CLERK
IN THE COURT OF APPEALS MAR 29 2005
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
ANTHONY WENC, )
)
Contestant/Appellant, )
)
v. ) 2 CA-CV 2004-0146
) DEPARTMENT A
SIERRA VISTA UNIFIED SCHOOL )
DISTRICT NO. 68; COCHISE COUNTY, ) OPINION
ARIZONA, and ITS GOVERNING )
BOARD; and COCHISE COUNTY )
SCHOOL SUPERINTENDENT TRUDY )
BERRY, )
)
Contestees/Appellees, )
)
and )
)
THOMAS W. SCHELLING, Cochise )
County Elections Officer, )
)
Intervenor/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CV200400373
Honorable Stephen M. Desens, Judge
AFFIRMED
Daniel F. Davis Tucson
Attorney for Contestant/Appellant
Edward G. Rheinheimer, Cochise County Attorney
By Candyce B. Pardee Bisbee
Attorneys for
Contestees/Intervenor/Appellees
E C K E R S T R O M, Judge.
¶1 We consider only one issue in this case: Whether a school district budget
override election should be set aside because it was canvassed by a county employee whose
authority to do so had not been established in accordance with the technical requirements
of A.R.S. § 38-461.1 Because we must interpret the legislature’s intent as expressed by
statute to answer that question, our review is de novo. See Mackey v. Mayor of Tucson, 208
Ariz. 527, ¶ 8, 96 P.3d 231, 233 (App. 2004). Based on that intent, we reject appellant’s
request to set aside either the canvass or the election because the technically improper
canvass did not affect the election result.
1
Appellant also challenges the reliability of the voting machines Cochise County used
in the override election. Although he elicited testimony exploring the operation of the
machines, he did not specifically challenge the use of those machines below or otherwise
contest the election on that basis. Moreover, he does not seek any relief on appeal based
on his critique of those machines. Accordingly, we do not address that challenge. See
Orfaly v. Tucson Symphony Society, 209 Ariz. 260, ¶ 15, 99 P.3d 1030, 1035 (App. 2004)
(arguments raised for the first time on appeal are untimely and are therefore deemed waived).
2
Background
¶2 The relevant facts are not disputed. On May 18, 2004, the Sierra Vista Unified
School District held a budget override election pursuant to A.R.S. § 15-481. The canvass
of returns was scheduled for June 4 and was to be conducted by Patrick Call, the Chairman
of the County Board of Supervisors, and Trudy Berry, the Cochise County School
Superintendent. However, a family emergency prevented Berry from attending the canvass,
so she appointed Deborah Andrade, her administrative assistant, to act on her behalf. Berry
neglected to file any papers in the county recorder’s office to officially confer that authority
on Andrade. The election was certified as scheduled, and both Call and Andrade signed the
official results. The budget override passed by seventy-five votes.
¶3 Anthony Wenc filed a challenge to the election five days later, presenting the
trial court with a host of jurisdictional, procedural, and technical legal claims. The court
found that no “material or substantive irregularities or defects” had tainted the election,
denied relief on all grounds, and authorized the school district to commence its budgeting
process. Although the trial court found that Andrade had not been “recorded as a deputy”
by Superintendent Berry under A.R.S. § 38-461, it concluded that A.R.S. § 38-462 provided
statutory authority for Andrade to canvass the vote nonetheless. This appeal followed.2
2
Wenc asks us to invalidate the canvass, but never specifically asks us to invalidate
the election. However, he argues that the deadlines have passed for the County to conduct
another canvass in compliance with A.R.S. § 15-426(B). Because an election result has no
legal effect in the absence of a canvass, see Shepherd v. Brumback, 148 Ariz. 280, 283-85,
714 P.2d 450, 453-55 (App. 1985), we construe his request to invalidate the canvass as an
3
Discussion
¶4 Wenc argues that, because Berry neglected to file and record Andrade’s
appointment as a deputy in accordance with § 38-461, Andrade lacked the authority to act
in Berry’s stead under § 38-462 and to canvass the election as required by A.R.S. § 15-426.
The County responds that compliance with § 38-461 was unnecessary because, under these
circumstances, Andrade was acting under the authority of § 38-462, which grants deputies
the power to act on behalf of county officers and which contains no additional provision
setting forth any technical requirements for exercising that power.
¶5 Under A.R.S. § 15-426(B), the canvass of a school budget override election
must be conducted by the county school superintendent. Section 38-462(A) authorizes a
county officer’s deputy to “perform the duties prescribed by law” for the officer.
Accordingly, the canvass of the bond could be conducted by a deputy of Berry. Section 38-
461, in turn, authorizes every state officer to “appoint deputies and assistants when
authorized by law, and [to] . . . appoint clerks and employees for the prompt discharge of
the duties of the office,” § 38-461(A), but requires that such appointments of “deputies,
assistants or clerks . . . shall . . . be in writing and recorded in the office of the county
recorder.” § 38-461(C); see also A.R.S. § 11-409 (requiring written and filed appointments
of “deputies, . . . clerks and assistants”).
implicit request to set aside the election result.
4
¶6 In determining the meaning of a statute, our primary objective is to discern and
give effect to the intent of the legislature. Lowing v. Allstate Ins. Co., 176 Ariz. 101, 103,
859 P.2d 724, 726 (1993). We focus on the language of the relevant provisions, and if that
language is subject to different interpretations, we then consider “other sources of legislative
intent such as the statute’s context, historical background, consequences, spirit and
purpose.” Id. at 104, 859 P.2d at 727.
¶7 Read in isolation, § 38-462(A) authorizes a deputy to perform any duties
prescribed by law for the county officer and requires no additional procedural steps for the
deputy to act in the official’s capacity.3 But § 38-462 does not address the manner by which
a person becomes a deputy. As noted above, § 38-461(C) specifies that “[t]he appointment
of deputies, assistants or clerks by county officers or boards shall, except as otherwise
provided, be in writing and recorded in the office of the county recorder.” Reading the two
provisions together, we find their meaning to be clear: Section 38-461 articulates the
manner in which a county officer may appoint a deputy, while § 38-462 specifies the scope
of that deputy’s power.
¶8 In addressing this question, the trial court, in effect, construed § 38-462 as a
provision that eliminates the technical requirements for appointing a deputy except in those
rare cases in which the official seeks to appoint a nonemployee to perform a specific task.
3
That provision reads in full as follows: “Unless otherwise provided, each deputy of
a state or county officer possesses the powers and may perform the duties prescribed by law
for the office of the principal.”
5
But we find no language in that section indicating any such legislative intent. In the absence
of such language, we decline to interpret § 38-462 as permitting the creation of de facto
deputies—an interpretation that would render the requirements of § 38-461(C) superfluous
except under the most extraordinary circumstances. See Wyatt v. Wehmueller, 167 Ariz.
281, 284, 806 P.2d 870, 873 (1991) (court “must read the statute as a whole, and give
meaningful operation to all of its provisions” whenever possible). The County suggests that
we should characterize Andrade as a deputy under the provisions of § 38-462 because she
was an employee delegated to conduct the canvass by the appropriate county officer. But
§ 38-461 erects additional procedural requirements for appointing a deputy as distinguished
from appointing an employee to perform a task. Compare § 38-461(A) (state officer “may
appoint clerks and employees for the prompt discharge of the duties of the office”) with §
38-461(C) (appointment of “deputies, assistants or clerks . . . shall . . . be in writing and
recorded in the office of the county recorder”). Because Berry failed to appoint Andrade
as her deputy in writing and to record that appointment in the county recorder’s office,
Andrade did not possess the powers conferred on deputies by § 38-462. Accordingly,
Andrade did not possess the legal authority to conduct the canvass on Berry’s behalf.
¶9 That error, however, does not compel us to void the canvass or, ultimately, the
election result. At oral argument, Wenc suggested we would elevate “personal sentiment”
over the law if we upheld the election outcome notwithstanding the County’s
noncompliance with the technical requirements of the canvassing statute. But, in the
6
absence of any specific legislative instruction that such an error requires us to overturn the
result of an election, we must be cognizant that “‘[i]t is the object of elections to ascertain
a free expression of the will of the voters,’” Clifton v. Decillis, 187 Ariz. 112, 116, 927
P.2d 772, 776 (1996), quoting Territory v. Bd. of Supervisors, 2 Ariz. 248, 253, 12 P. 730,
732 (1887), and, so, “the determination of the intent of the voter is the question of primary
importance.” Findley v. Sorenson, 35 Ariz. 265, 270, 276 P. 843, 844 (1929).
¶10 In accord with this principle, we first determine whether the relevant election
statute provides any legislative guidance on the appropriate remedy for noncompliance. “If
a statute expressly provides that noncompliance invalidates the vote, then the vote is
invalid.” Miller v. Picacho Elementary Sch. Dist. No. 33, 179 Ariz. 178, 180, 877 P.2d
277, 279 (1994). If the statute does not contain such a provision, we will not set aside an
election unless the effect of the noncompliance altered the outcome or clouded the
reliability of the results. Id.; see also Clifton, 187 Ariz. at 116, 927 P.2d at 776 (when only
substantial compliance with law is required, court will not set aside election unless result
was affected by irregularity).
¶11 The relevant statute permitting school budget override elections, A.R.S. § 15-
481, does not demand strict compliance with the procedures for conducting those elections.
To the contrary, the legislature only requires that such elections be conducted “as nearly as
practicable” in conformity with the canvassing requirements for budget override elections
7
set forth in A.R.S. § 15-426. § 15-481(D). Thus, we would not set aside the canvass or
election unless Berry’s failure to properly certify Andrade affected the outcome of the vote.
¶12 Wenc has made no such argument and does not suggest that Andrade was
either incompetent or dishonest in conducting the canvass. In fact, Wenc makes no
complaint whatsoever about how Andrade behaved when she conducted the canvass on
Berry’s behalf. Nor does Wenc dispute that the election was free and fair—untainted by
fraud.4 Thus, although we conclude that Berry failed to comply with the requirements of
the law when she delegated Andrade to conduct the canvass, we affirm the trial court’s
judgment rejecting Wenc’s request to void the canvass or the election because of that
oversight. See Ry-Tan Constr., Inc. v. Washington Elementary Sch. Dist. No. 6, 208 Ariz.
379, ¶ 45, 93 P.3d 1095, 1109 (App. 2004) (we may affirm a trial court’s decision if it is
correct for any reason).
¶13 The judgment of the trial court is affirmed.
____________________________________
PETER J. ECKERSTROM, Judge
CONCURRING:
____________________________________
JOSEPH W. HOWARD, Presiding Judge
4
Thomas Schelling, Cochise County Elections Officer, testified that there was no sign
of fraud in the election and that it had been conducted in accordance with Arizona law.
8
____________________________________
PHILIP G. ESPINOSA, Judge
9