SUPREME COURT OF ARIZONA
BARBARA ANN LUBIN, a registered ) Arizona Supreme Court
voter, ) No. CV-06-0321-AP/EL
)
Plaintiff/Appellee, ) Maricopa County
) Superior Court
v. ) No. CV2006-012777
)
DOUGLAS E. THOMAS, an individual, )
)
Defendant/Appellant, ) O P I N I O N
)
)
SANDRA DOWLING, in her official )
capacity as Superintendent of )
Schools of Maricopa County, )
Arizona; HELEN PURCELL, in her )
official capacity as Recorder of )
Maricopa County, Arizona; KAREN )
OSBORNE, in her official capacity )
as Director of Elections of )
Maricopa County, Arizona; and DON )
STAPLEY, FULTON BROCK, ANDREW )
KUNASEK, MAX WILSON and MARY ROSE )
WILCOX, in their official )
capacities as Members of the )
Board of Supervisors of Maricopa )
County, Arizona, )
)
Defendants/Appellees. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Ruth Harris Hilliard, Judge
AFFIRMED
________________________________________________________________
SHUGHART THOMSON & KILROY PC Phoenix
By Thomas K. Irvine
Andrew S. Jacob
Attorneys for Barbara Ann Lubin
Douglas E. Thomas Phoenix
In Propria Persona
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor
Attorneys for Sandra Dowling, Helen Purcell, Karen Osborne, Don
Stapley, Fulton Brock, Andrew Kunasek, Max Wilson, and Mary Rose
Wilcox
________________________________________________________________
B A L E S, Justice
¶1 This case concerns a challenge to the nomination
petitions of Douglas Thomas, a candidate for the governing board
of the Phoenix Union High School District, Ward 3. Thomas
appealed from a superior court judgment holding that he lacked
sufficient valid petition signatures to be placed on the
November 7, 2006 ballot. The key issue is whether the County
Recorder may invalidate signatures for reasons other than those
specifically alleged by the challenger. On September 15, 2006,
this Court issued an order affirming the superior court’s
judgment. This written opinion explains the basis for our
decision.
¶2 We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 16-351(A) (Supp. 2005).
I. Background
¶3 To be placed on the ballot, a candidate for a school
district governing board must submit nomination petitions signed
by a sufficient number of qualified electors. Id. § 16-322(A)
(11). The number of required signatures generally is a
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specified percentage of the district’s total registered voters,
but not more than 400. Id.
¶4 Thomas needed 400 signatures to appear on the November
7, 2006 ballot; he filed 481. Pursuant to A.R.S. § 16-351(A),
Barbara Lubin filed a lawsuit challenging 160 of the signatures.
As required by the statute, her complaint specified “the
petition number, line number and basis for the challenge for
each signature being challenged.” Id.
¶5 When an elector challenges signatures on a candidate’s
nomination petitions, the challenged signatures must be
verified. Id. The County Recorder performs this task as the
public official charged with maintaining the voting register.
See id. §§ 16-161 to -162 (1996). The verification procedure
resembles that used in the context of a challenge to ballot
measure petitions, in which the County Recorder must “determine
which signatures of individuals . . . shall be disqualified.”
Id. § 19-121.02(A) (2002).
¶6 After being served with Lubin’s challenge, the
Maricopa County Recorder reviewed the challenged signatures and
found 110 of them invalid. Some of these signatures were
invalidated on grounds other than those alleged in the
complaint. For example, Lubin challenged the signature found at
line one of petition eleven on the grounds that the elector was
not registered to vote. The County Recorder, on the other hand,
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located this elector on the county register but invalidated the
signature because the elector was registered to vote in another
district. As a result of the 110 disqualified signatures,
Thomas was left with only 371 valid signatures, 29 short of the
required 400.
¶7 In response, Thomas argued that the County Recorder
had exceeded her authority by disqualifying signatures for
reasons other than those alleged in Lubin’s challenge. The
superior court rejected this argument, found that Thomas lacked
sufficient valid signatures, and enjoined his name from
appearing on the November 7, 2006 ballot. The superior court
announced its decision in a minute entry on September 1, 2006,
and entered judgment on September 4, 2006.
¶8 Thomas filed a notice of appeal on September 6, 2006,
within the five-day limit provided in A.R.S. § 16-351(A). He
took no further action, however, to prosecute his appeal. On
Thursday, September 14, 2006, having received no briefing from
either party, the Court sua sponte conducted a telephonic
hearing to inquire as to the status of the case. Because the
deadline for the printing of absentee ballots was Sunday,
September 17, 2006, the Court at that point effectively had only
one business day to consider and decide this matter.
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II. Laches
¶9 Initially, we note that this appeal might have been
dismissed based on the equitable doctrine of laches. The Court
has often applied this doctrine to actions challenging the legal
sufficiency of initiative measures. Harris v. Purcell, 193
Ariz. 409, 412 ¶ 15, 973 P.2d 1166, 1169 (1998); Mathieu v.
Mahoney, 174 Ariz. 456, 458-59, 851 P.2d 81, 83-84 (1993);
Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18
(1991). The laches doctrine also applies to actions challenging
candidate nomination petitions.
¶10 In the context of election matters, the laches
doctrine seeks to prevent dilatory conduct and will bar a claim
if a party’s unreasonable delay prejudices the opposing party or
the administration of justice. Harris, 193 Ariz. at 412 ¶¶ 16-
17, 973 P.2d at 1169 (citing Mathieu, 174 Ariz. at 459, 851 P.2d
at 84). Time is of particular importance because all disputes
must be resolved before the printing of absentee ballots. Id.
at 412 ¶ 15, 973 P.2d at 1169. Unreasonable delay can therefore
prejudice the administration of justice by compelling the court
to “steamroll through . . . delicate legal issues in order to
meet” the ballot printing deadlines. Mathieu, 174 Ariz. at 459,
851 P.2d at 84 (quoting State ex rel. Fidanque v. Paulus, 688
P.2d 1303, 1308 (Or. 1984)). For that reason, merely complying
with the time limits in A.R.S. § 16-351(A) for filing a notice
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of appeal may be insufficient if the appellant does not also
promptly prosecute the appeal. Cf. Klebba v. Carpenter, 213
Ariz. 91, ___ ¶ 10, 139 P.3d 609, 611 (2006)(“The statute . . .
places the burden to act with celerity not only on the superior
court, but also on the party challenging nomination
petitions.”).
¶11 Here, Thomas’s failure to diligently pursue his appeal
left this Court a very short time in which to review and decide
the matter. Given the relative simplicity of the issues before
us, and because laches was not raised as a defense, we have
resolved this case on its merits. We caution, however, that a
party’s failure to diligently prosecute an election appeal may
in future cases result in a dismissal for laches.
III. Disqualifying Signatures
¶12 On the merits, Thomas’s appeal turns on A.R.S. § 16-
351(A). This statute requires an elector challenging a
candidate’s nomination petitions to “specify in the action the
petition number, line number and basis for the challenge for
each signature being challenged.” Failure to do so will result
in the dismissal of the action. Id. Thomas does not contend
that Lubin’s challenge failed to specify a basis for challenging
particular signatures. Thomas instead argues that once Lubin
had alleged certain grounds for questioning a signature, § 16-
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351(A) prevented the County Recorder from relying on a different
basis to invalidate the signature.
¶13 “We review issues of statutory interpretation de
novo.” Moreno v. Jones, 213 Ariz. 94, ___ ¶ 23, 139 P.3d 612,
616 (2006).
¶14 By its terms, A.R.S. § 16-351(A) does not indicate
whether the County Recorder may disqualify signatures on bases
other than those specifically alleged in the complaint.
Accordingly, we look outside the statute to determine its
meaning. “To discern the [legislative] 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.” Moreno, 213 Ariz. at ___ ¶ 24, 139
P.3d at 616 (citing Clifton v. Decillis, 187 Ariz. 112, 114, 927
P.2d 772, 774 (1996)).
¶15 Candidates are required to obtain nomination petitions
to ensure that they have adequate support from eligible voters
to warrant being placed on the ballot. See Adams v. Bolin, 77
Ariz. 316, 320, 271 P.2d 472, 475 (1954) (stating that the
purpose of requiring nomination petitions is to “make the
requirements stringent enough to discourage those [candidates]
who do not for an instant merit the voter's consideration, yet
not keep out those who are serious in their efforts and have a
reasonable number of supporters”). If the County Recorder’s
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review of the challenged signatures were limited solely to the
reasons stated in the challenging document, this principle would
be disserved. It makes little sense to allow an inadequately
supported candidate to be placed on the ballot simply because
the challenger misidentified in the complaint why certain
signatures are invalid.
¶16 Additionally, the legislative history of A.R.S. § 16-
351(A) is instructive on the purposes behind the requirement
that a challenger specify the petition number, line number, and
basis for each signature challenge. The primary purpose is to
“allow the Elections office to more efficiently do preliminary
work to deal with candidate challenges, and . . . eliminate the
need to go to court in some cases.” Ariz. State Senate Fact
Sheet for H.B. 2101, 44th Leg., 1st Reg. Sess. (Ariz. 1999).
Before the amendment to A.R.S. § 16-351(A), signature
verification was often difficult for the County Recorder, and
the amendment was meant to simplify the process. As the
committee minutes indicate:
Helen Purcell, Recorder, Maricopa County, testified
that the Recorders [sic] Office is in support of H.B.
2101. She said this legislation gives her office a
better idea of what to look for in the challenge
process. It is extremely difficult for her office if
it does not know what the challenges are. This
legislation will make it easier for the Recorder’s
Office to locate the information.
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Minutes of House Comm. on Judiciary, 44th Leg., 1st Reg. Sess.
(Ariz. Jan. 27, 1999) (“House Minutes”).
¶17 The pleading requirement of A.R.S. § 16-351(A) also
serves to discourage frivolous challenges. As Representative
Gerard explained to the Arizona House Judiciary Committee, “a
person can challenge a nomination just to cause trouble. This
bill requires the challenger to show that some evidence exists
for the challenge.” House Minutes.
¶18 Nothing in the legislative history of A.R.S. § 16-
351(A) indicates that the legislature intended to limit the
County Recorder’s review of questioned signatures only to the
bases stated in the complaint. If a challenger is able,
consistent with A.R.S. § 16-351(A) and the requirements of Rule
11 of the Arizona Rules of Civil Procedure, to allege particular
grounds for challenging signatures, the statutory purposes are
not served by holding that a signature should be treated as
valid merely because the County Recorder has found it invalid
for a reason other than that alleged.
¶19 We therefore hold that the County Recorder, in
reviewing challenged nomination petition signatures, may
invalidate signatures for legitimate reasons other than those
specifically alleged in the challenger’s complaint.
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IV. Conclusion
¶20 For the foregoing reasons, we affirm the judgment of
the superior court enjoining the placement of Thomas’s name on
the ballot for the office of governing board of the Phoenix
Union High School District, Ward 3.
__________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
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