SUPREME COURT OF ARIZONA
ROBERT J. BOHART, ) Arizona Supreme Court
) No. CV-06-0225-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV2006-009566
PAMELA HANNA, in her official )
capacity as Clerk of the City of )
Glendale, Arizona; ELAINE )
SCRUGGS, THOMAS EGGLESTON, STEVE ) O P I N I O N
FRATE, MANNY MARTINEZ, DAVID )
GOULET, JOYCE CLARK and PHIL )
LIEBERMAN collectively in their )
official capacity as the COUNCIL )
OF THE CITY OF GLENDALE, )
ARIZONA; and DAVID M. GOULET, )
Real Party in Interest, )
)
Defendants/Appellees. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Peter B. Swann, Judge
APPEAL DISMISSED
________________________________________________________________
Robert J. Bohart Glendale
In Propria Persona
CRAIG D. TINDALL, GLENDALE CITY ATTORNEY Glendale
By Craig D. Tindall, City Attorney
Attorney for Pamela Hanna, Elaine Scruggs,
Thomas Eggleston, Steve Frate, Manny Martinez,
Joyce Clark, and Phil Lieberman
GAMMAGE & BURNHAM PLC Phoenix
By Lisa T. Hauser
Michella Abner
Attorneys for David M. Goulet
________________________________________________________________
B E R C H, Vice Chief Justice
This case concerns a challenge by Appellant Robert Bohart to the nomination
petitions of David Goulet, a candidate for Glendale City Council. The
trial court ruled that Goulet’s petitions substantially complied with
Arizona Revised Statutes (“A.R.S.”) section 16-314 (Supp. 2005), and that
Goulet should therefore remain on the primary ballot. Appellee/Real Party
in Interest Goulet has moved to dismiss the notice of appeal filed by
Appellant Bohart, alleging that it was not timely filed. We have
jurisdiction pursuant to A.R.S. § 16-351(A) (Supp. 2005).
The deadline for filing an appeal of a ruling in a nomination petition
challenge is set by statute at five days:
Any elector filing any court action challenging the nomination of a
candidate as provided for in this chapter shall do so no later than
5:00 p.m. of the tenth day, excluding Saturday, Sunday and other legal
holidays, after the last day for filing nomination papers and
petitions. . . . Within ten days after the filing of the action, the
superior court shall hear and render a decision on the matter. Such
decision shall be appealable only to the supreme court, and notice of
appeal shall be filed within five days after the decision of the
superior court in the action. The supreme court shall hear and render
a decision on the appeal promptly.
A.R.S. § 16-351(A) (emphasis added). The superior court rendered its
decision in this case on June 30, 2006. The fifth calendar day by which
the notice of appeal should have been filed was July 5. Petitioner filed
his notice of appeal on July 6. Appellant asserts that the court should
construe the five-day period for filing an appeal to this court as
excluding weekends and holidays.
The legislature added § 16-351 in 1979 in a general reorganization of
election statutes. The former version, then numbered as § 16-306, provided
that an elector had “five days after the last day for filing nomination
papers” to challenge a nomination. In Bedard v. Gonzales, this court had
held that Arizona Rule of Civil Procedure 6(a)[1] does not apply to § 16-
306, and thus the five days to challenge nomination petitions means five
calendar days. 120 Ariz. 19, 20, 583 P.2d 906, 907 (1978).
The following year, the legislature modified the election statutes,
changing the language of the opening sentence of the new § 16-351(A) to
allow “five days, excluding Saturday, Sunday and legal holidays” for filing
papers in superior court to challenge a nomination, thus rejecting the
holding in Bedard. It left unchanged, however, the remaining time periods
in the statute, including the five days to appeal to this court.
The legislature again modified the statute in 1999, lengthening to ten days
the time to challenge a nomination, but again left the time to appeal
unchanged. See 1999 Ariz. Sess. Laws ch. 166, § 1. The legislature has
thus twice amended the time periods in section 16-351(A), and each time
left intact the very short period for appealing a decision to this court.
We assume that when this court has interpreted a statute and the
legislature re-enacts the same or substantially similar language, the
legislature approves of the judicial construction of the statutory
language. Scheehle v. Justices of the Supreme Court, 211 Ariz. 282, 288, ¶
19, 120 P.3d 1092, 1098 (2005). In this case, not only did the legislature
leave the time to appeal intact while changing the time in which to
challenge a nomination petition in response to Bedard, but it has also
since revisited the statutory language without changing the time to appeal.
We therefore continue to interpret literally the statutory language
allowing “five days” to appeal a superior court judgment to this court as
meaning five calendar days. Cf. Bedard, 120 Ariz. at 20, 583 P.2d at 907
(interpreting period for challenging petitions in superior court). Such a
reading not only comports with legislative intent, but also with the
requirement that time elements in election statutes be strictly construed.
Id. It also serves the goal of expeditious resolution of nomination
challenges.
We hold that the five days allowed to appeal a decision in a challenge to
the nomination of a candidate includes weekends and holidays. Because the
appeal in this case was not filed until six days after the superior court
decision, it was untimely.[2] The motion to dismiss is granted.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:*
_____________________________________
Ruth V. McGregor, Chief Justice
_____________________________________
Andrew D. Hurwitz, Justice
_____________________________________
W. Scott Bales, Justice
*Justice Michael D. Ryan did not participate in the consideration of this
matter.
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[1] Rule 6(a) of the Arizona Rules of Civil Procedure at the time
provided that, “When the period of time prescribed or allowed is less than
7 days, intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation.” It now applies to time periods less than
eleven days.
[2] The court will continue to adhere to the rule that if the fifth day
for filing an election appeal falls on a Saturday, Sunday, or state
holiday, a notice of appeal will be deemed timely if filed on the next
business day. Cf. Ariz. R. Civ. P. 6(a).