Powers v. Carpenter

SUPREME COURT OF ARIZONA
En Banc

JOHN L. POWERS, an individual ) Supreme Court
and qualified elector, ) No. CV-02-0227-AP/EL
)
Plaintiff/Appellant, ) Maricopa County
) Superior Court
v. ) Nos. CV 2002-012155
) and CV 2002-012301
JOHN M. CARPENTER, an individual, )
SALOMON LEIJA, an individual, )
STEPHEN VEGA, an individual, Real )
Party in Interest, THE HONORABLE )
R. FULTON BROCK, DON STAPLEY, )
ANDREW KUNASEK, MAX W. WILSON, )
MARY ROSE WILCOX, THE DULY ELECTED )
OR APPOINTED MEMBERS OF THE )
MARICOPA COUNTY BOARD OF )
SUPERVISORS, WHO ARE NAMED SOLELY )
IN THEIR OFFICIAL CAPACITY; THE )
MARICOPA COUNTY BOARD OF )
SUPERVISORS; THE HONORABLE HELEN )
PURCELL, THE DULY ELECTED MARICOPA )
COUNTY RECORDER, WHO IS NAMED )
SOLELY IN HER OFFICIAL CAPACITY, )
AND THE HONORABLE KAREN OSBORNE, )
THE DULY APPOINTED MARICOPA ) O P I N I O N
COUNTY DIRECTOR OF ELECTIONS, )
WHO IS SOLELY NAMED IN HER )
OFFICIAL CAPACITY; THE )
HONORABLE BETSEY BAYLESS,THE DULY )
ELECTED ARIZONA SECRETARY OF )
STATE, WHO IS NAMED SOLELY IN HER )
OFFICIAL CAPACITY, )
)
Defendants/Appellees. )
)
___________________________________)

Appeal from the Superior Court of Maricopa County
Nos. CV 2002-012155 and CV 2002-012301

The Honorable Paul A. Katz, Judge
REVERSED IN PART, AFFIRMED IN PART
Williams and Associates Scottsdale
by Scott E. Williams
and
Law Offices of Robert E. Melton
by Robert E. Melton Scottsdale
Attorneys for Appellant

Bassi and Hill Phoenix
by Steven Hill
and
Richard M. Romley, Maricopa County Attorney
by Jill M. Kennedy, Deputy County Attorney Phoenix
Attorneys for Appellees

J O N E S, Chief Justice

INTRODUCTION

¶1 We issued a dispositive order July 15, 2002 indicating

affirmance in part, reversal in part, and an instruction that

appellee John Carpenter’s name not be placed on the primary

election ballot. We also indicated that this formal opinion would

follow.

¶2 Review was granted in order to consider whether the trial

court erred in establishing June 12, 20021 as the deadline for

individual electors to withdraw signatures from nominating

petitions. Today, we affirm the principle that persons who sign

nominating petitions in support of candidates for public office

1
Unless otherwise indicated, all dates referenced in the text
of this opinion occurred during 2002.

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have a common law right to withdraw their own signatures. While

the right is not absolute, it nevertheless exists and may be

exercised under limited conditions. In the instant case, the

trial judge erred in establishing June 12 as the withdrawal

deadline. We reverse that part of the lower court’s decision.

¶3 We affirm the trial judge’s finding that Carpenter’s

prior removal from office as justice of the peace did not render

him ineligible as a candidate for the office of constable.

¶4 We exercise jurisdiction pursuant to Arizona Revised

Statutes (A.R.S.) section 16-351(A) (Supp. 2001).

FACTS

¶5 Appellant John Powers and appellee John Carpenter are

candidates for the office of constable, East Phoenix #1 precinct,

Maricopa County, Arizona. Carpenter is a former justice of the

peace for the East Phoenix #1 precinct.

¶6 June 12 was the statutory deadline for filing nominating

petitions with county election officials. See A.R.S. § 16-311

(Supp. 2001). On that date, Carpenter filed petitions containing

355 elector signatures. After the filing deadline, 71 individuals

who had signed Carpenter’s petitions submitted requests that their

signatures be withdrawn. Pursuant to A.R.S. section 16-351, Powers

filed this action against Carpenter in the superior court on June

26, asserting that because of the withdrawn signatures, Carpenter

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¶7 was no longer eligible to have his name appear on the

primary ballot. At trial, the parties stipulated that if the 71

withdrawals were permitted, Carpenter would not have enough

signatures of registered voters to qualify for the primary election

ballot.

¶8 Relying upon A.R.S. section 1-261, the trial court ruled

that Carpenter was eligible to have his name appear on the ballot

because the signatures were withdrawn too late. According to the

trial court, for a withdrawal to be valid, a signer must have

submitted his withdrawal request on or before 5:00 p.m., June 12.

Since the withdrawals occurred after that date, the court ordered

that the signatures be counted in support of the petition. Powers

appealed.

ANALYSIS

¶9 The specific question we address is whether an elector

may withdraw a signature from a nominating petition after

expiration of the petition filing deadline. This issue is one of

first impression in Arizona. There is neither a constitutional nor

statutory provision governing this particular situation.

¶10 To determine whether the withdrawals were timely

submitted, the trial court interpreted A.R.S. section 1-261(A) to

include the withdrawal of signatures from nominating petitions.

Statutory construction is a question of law, which we review de

novo. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230

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(1996). In interpreting statutes, we look to the plain language as

the most reliable indicator of meaning. State v. Williams, 175

Ariz. 98, 100, 854 P.2d 131, 133 (1993).

¶11 Section 1-261(A) reads in part:

A person who has signed a petition prescribed by statute
for any initiative, referendum or formation or
modification of a county, municipality or district may
withdraw his signature from the petition not later than
5:00 p.m. on the date set by law for filing of the
petition . . . .

Nominating petitions of individual candidates are not included

within the language of the statute. The statute is expressly

applicable to initiative measures, referenda, and measures dealing

with the formation or modification of political subdivisions of the

state. Normally, where items, as here, are expressly listed in

series in a statute, we presume the legislature intended to exclude

items of the same class that are not listed. See Pima County v.

Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982) ("A well

established rule of statutory construction provides that the

expression of one or more items of a class indicates an intent to

exclude all items of the same class which are not expressed.")

(citations omitted). The “class” of items in the instant case

would include petitions filed pursuant to the election statutes of

this State.

¶12 On its face, the language of section 1-261 does not

encompass the withdrawal of signatures from nominating petitions.

If intended, the legislature could easily have included such

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petitions, but did not. Moreover, nothing in its language or, as

far as we can ascertain, its legislative history, suggests any

intent that it apply to nominating petitions.

¶13 Because the trial court erred in applying section 1-261

and because no statute addresses the right to withdraw a signature

from a nominating petition, we look to the common law. A.R.S. § 1-

201 (Supp. 2001). Absent contrary statutory provisions, the right

to sign a petition is a personal privilege, and the right to

withdraw a signature from a petition can be exercised only by the

person directly concerned. State ex rel. Hindley v. Superior

Court, 126 P. 920, 923 (Wash. 1912). A signer may withdraw his

signature, but must do so before the petition has been acted upon

and adopted. Valley Center Sch. Dist. No. 20 v. Hansberger, 28

Ariz. 493, 496, 237 P. 257, 268 (1925). Thus, the common law rule

is that the right to sign implies the right to withdraw, but the

right is not absolute.

¶14 Consistent with these principles, this court previously

determined that the signer of a municipal annexation petition has

the right to withdraw his or her signature any time prior to the

commencement of formal legislative action on the petition. State

ex rel. De Concini v. City of Phoenix, 74 Ariz. 46, 243 P.2d 766

(1952). In De Concini, signers of a petition seeking to annex land

within the City of Phoenix made a request for signature withdrawal

after the petitions had been filed, but also after the city council

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had begun formal consideration of the matter. We held that once

affirmative legislative action had commenced, signatures could not

be withdrawn, stating, in effect, that affirmative legislative

action is not encompassed in the mere act of filing a petition but

is encompassed in action that puts the “legislative wheels in

motion.” Id. at 50, 243 P.2d at 768. Actual formal consideration

by the Phoenix City Council was held to constitute legislative

action. We contrasted such active consideration with ministerial

action, such as “[t]he mere checking of the petitions to ascertain

if the statutory requirements have been fulfilled or even the

filing of them with the clerk.” Id.

¶15 As a cautionary note, De Concini teaches that the right

to withdraw is neither indefinite nor absolute; rather, at some

point private rights must yield to society’s interest in having a

well ordered and functioning government. The court pointed out

that to permit a signer to withdraw a signature after formal action

had begun in the annexation process would “allow him to play fast

and loose with the orderly processes of city government and might

involve additional expense as well as interminable delay.” Id. at

50, 243 P.2d at 769.

¶16 In De Concini, we held that the names could not be

withdrawn because formal legislative action had commenced the

moment the council convened to consider the ordinance. Id.

Although De Concini addresses annexation petitions, the common law

principle it announces is clearly applicable to nominating

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petitions. Section 16-351(A) sets forth the procedure for

challenging the nomination of candidates for public office.2 That

statute gives an elector ten business days after the petition

filing deadline to challenge the validity of signatures on

nomination petitions. For the current election year,that deadline

was June 26.

¶17 On the record before us, we hold that the expiration of

the ten-day challenge period constitutes an event which causes

official action to commence on nominating petitions.3 Once the ten

days have run, there can be no more challenges, and election

officials are permitted either to take official action placing the

candidate’s name on the ballot or determine that there are

2
A.R.S. § 16-351(A) provides:
Any elector filing any court action challenging the
nomination of a candidate as provided for in this chapter
shall do so within ten days, excluding Saturday, Sunday
and other legal holidays, after the last day for filing
nomination papers and petitions. The elector shall
specify in the action the petition number, line number
and basis for the challenge for each signature being
challenged. Failure to specify this information shall
result in the dismissal of the court action. 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.
3
The separate question, whether other events that may occur
during the ten-day challenge period might operate to bar subsequent
withdrawal of signatures, need not be addressed in the instant case
because all 71 withdrawal requests were submitted prior to the June
26 filing of this suit.

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insufficient valid elector signatures to justify doing so.

¶18 Just as affirmative legislative action began in De

Concini the moment the city council began active consideration of

the annexation petition, the formal legal event in the instant case

occurred when the ten-day challenge period was complete, i.e., at

the close of business, June 26. The 71 withdrawal requests were

made prior to that time and were thus valid.

¶19 The court below recognized the right of a signer to

withdraw a signature but took the absolutist position that the

right expired the moment the June 12 petition filing deadline

occurred. De Concini gives us the more flexible and reasonable

rule that a withdrawal can be made only if it occurs before formal

action is taken.

¶20 The De Concini rule makes sense because if, during the

ten-business-day challenge period, it becomes known that a

candidate, for whatever reason, is unfit for public office, there

must be at least a reasonable opportunity for petition signers to

exercise their established right of withdrawal. Extending that

time until the challenge period expires provides at least a modicum

of opportunity after the petitions are filed. Accordingly, we

resort to the De Concini principle which allows withdrawal during

the time in which election officials conduct only ministerial

duties, but as yet have no authority to place a candidate’s name on

the ballot.

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 DISPOSITION

¶21 For the foregoing reasons, we hold the trial court erred

in establishing June 12 as the final date on which withdrawal

requests could be submitted. Because the withdrawal requests were

submitted prior to expiration of the ten-day challenge period, they

are valid. We therefore hold appellee Carpenter ineligible to

appear on the ballot by reason of the loss of 71 withdrawn

signatures. The County Elections Director is instructed to omit

Carpenter’s name from the election ballot.

¶22 We hold further that appellee’s prior removal from the

office of justice of the peace is an incident unrelated to his

candidacy for constable. We affirm the trial court’s determination

that such removal did not affect Carpenter’s eligibility as a

candidate in this proceeding. The separate issue whether a

constable is a judicial or an executive officer, though discussed

by the parties, is not germane to the disposition of the case.

Accordingly, we need not reach it.

___________________________________
Charles E. Jones
CONCURRING: Chief Justice

____________________________________
Ruth V. McGregor, Vice Chief Justice

____________________________________
Stanley G. Feldman, Justice

____________________________________
Michael D. Ryan, Justice

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NOTE: Justice Rebecca White Berch did not participate in
the disposition of this matter.

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