Bee v. Day - Case Law

SUPREME COURT OF ARIZONA
In Division

KEITH A. BEE, ) Arizona Supreme Court
) No. CV-08-0199-AP/EL
Appellant, )
) Pima County
v. ) Superior Court
) No. C2008-4100
ANN DAY, RAMON VALADEZ, SHARON )
BRONSON, RAYMOND J. CARROLL, )
RICHARD ELIAS, THE DULY ELECTED )
OR APPOINTED MEMBERS OF THE PIMA ) O P I N I O N
COUNTY BOARD OF SUPERVISORS, WHO )
ARE NAMED SOLELY IN THIER )
OFFICIAL CAPACITY; THE PIMA )
COUNTY BOARD OF SUPERVISORS; THE )
HONORABLE F. ANN RODRIGUEZ, THE )
DULY ELECTED PIMA COUNTY )
RECORDER, WHO IS NAMED SOLELY )
IN HER OFFICIAL CAPACITY; PIMA )
COUNTY RECORDER'S OFFICE, )
STATE OF ARIZONA; AND THE )
HONORABLE BRAD NELSON, THE DULY )
APPOINTED PIMA COUNTY DIRECTOR )
OF ELECTIONS, WHO IS SOLELY )
NAMED IN HIS OFFICIAL CAPACITY; )
PIMA COUNTY ELECTIONS DEPARTMENT )
)
Appellees, )
)
WESLEY KENT, )
)
Real Party in Interest. )
)
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable John Kelly, Judge

REVERSED

________________________________________________________________
RISNER & GRAHAM Tucson
By William J. Risner
Attorneys for Keith A. Bee

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Daniel S. Jurkowitz, Deputy County Attorney
Attorneys for Ann Day, Ramon Valadez, Sharon Bronson,
Ray Carroll, Richard Elias, Pima County Board of
Supervisors, F. Ann Rodriguez, Pima County Recorder's
Office, State of Arizona, Brad R. Nelson, and Pima County
Division of Elections

WILLIAMS & ZINMAN P.C. Scottsdale
By Scott E. Williams
Mark B. Zinman
Attorneys for Wesley Kent
________________________________________________________________

B A L E S, Justice

¶1 This case concerns elector Wesley Kent’s challenge to

the nomination petitions of Keith Bee, a candidate seeking to

become the Republican nominee for Pima County Justice of the

Peace for Precinct 5. Bee appealed from a superior court

judgment invalidating his nomination petitions and striking his

name from the ballot. We issued an order reversing the superior

court and stating that Bee’s name will appear on the primary

ballot. This opinion explains our reasoning.

I. Factual and Procedural Background

¶2 In 2007, Jim Green resigned from his position as Pima

County Justice of the Peace for Precinct 5, although the term

for which he was elected does not end until December 31, 2010.

Bee was appointed to fill the position until the next general

election, scheduled for November 4, 2008, when voters will
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choose which candidate will serve the remainder of Green’s

unexpired term.

¶3 A partisan primary election is scheduled for September

2, 2008. To obtain a place on a partisan primary election

ballot, a candidate must file nomination petitions containing a

sufficient number of valid signatures. Ariz. Rev. Stat.

(“A.R.S.”) §§ 16-314, -322 (2006). When a person is “seeking to

fill an unexpired vacant term,” the nomination petitions “shall

designate the expiration date of the term following the name of

the office being sought.” A.R.S. § 16-314(D).

¶4 Bee submitted nomination petitions with sufficient

signatures, but none of his petitions “designate[d] the

expiration date” of Green’s unexpired vacant term. See id.

Kent challenged the validity of the petitions based on this

omission. The superior court agreed that the petitions were

invalid and ordered Bee’s name to be removed from the ballot.

Bee timely filed a notice of appeal in the superior court within

the five-day deadline provided by A.R.S. § 16-351(A), which

provides for a direct appeal to this Court.

II. Discussion

¶5 To facilitate expedited election appeals, this Court

recently adopted Rule 8.1 of the Arizona Rules of Civil

Appellate Procedure (“ARCAP”). The rule requires appellants in
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expedited election matters to file a copy of the notice of

appeal and other materials in the appellate court “[n]ot later

than the next business day after filing the notice of appeal in

the superior court.” ARCAP 8.1(c). Although Bee timely filed

his notice of appeal in the superior court, he was three days

late in complying with ARCAP 8.1(c). Based on Bee’s late

filing, Kent asks this Court to dismiss the appeal.

¶6 In contrast to the requirement that an appeal be

timely filed, the failure to timely file a copy of the notice of

appeal in accordance with Rule 8.1 is not a jurisdictional

defect to an expedited election appeal. See ARCAP 8(a)

(“Failure of an appellant to take any step other than the timely

filing of a notice of appeal does not affect the validity of the

appeal.”); see also Edwards v. Young, 107 Ariz. 283, 284, 486

P.2d 181, 182 (1971) (“[W]here the appeal is not timely filed,

the appellate court acquires no jurisdiction other than to

dismiss the attempted appeal.”).

¶7 A failure to meet the filing requirements in ARCAP

8.1(c) does not warrant dismissal absent prejudice to the

appellee or an impediment to this Court’s ability to decide the

case on the merits. Cf. Lubin v. Thomas, 213 Ariz. 496, 497 ¶

10, 144 P.3d 510, 511 (2006) (noting appeals in election matters

may be dismissed for laches when unreasonable delay prejudices

opponent or administration of justice). The minor delay here
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neither prejudiced Kent nor impeded this Court in deciding the

merits. We therefore decline to dismiss Bee’s appeal.

¶8 If there is a challenge to the form or content of a

nomination petition, we normally review de novo whether “a

petition substantially complies with the statutory requirements”

before denying access to a ballot. Moreno v. Jones, 213 Ariz.

94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006). Kent contends

that substantial compliance is irrelevant because the statute

demands strict compliance. He notes that A.R.S. § 16-314(D)

states that the nomination petition “shall designate the

expiration date of the [unexpired] term,” (emphasis added),

unlike § 16-314(C), which states that nomination petitions

should contain “language . . . in substantially the following

form.” (Emphasis added.) Thus, Kent argues, the legislature

intended § 16-314(D) to be mandatory.

¶9 We have previously considered whether nomination

petitions substantially complied with statutory requirements

even though the statute did not expressly state that substantial

compliance would suffice. See Marsh v. Haws, 111 Ariz. 139,

140, 526 P.2d 161, 162 (1974). This approach comports with

Adams v. Bolin, in which this Court rejected a strict

interpretation of nomination petition requirements, although the

legislature had removed the word “substantially” from a statute
5
using language similar to A.R.S. § 16-314(C). 77 Ariz. 316,

319-22, 271 P.2d 472, 474-76 (1954). In Adams, the Court

explained that a court should not interpret the statutes

governing nomination petitions in a way that allows “purely

technical departures from nominating form” to outweigh the

electors’ right to nominate legitimate candidates. Id. at 322,

271 P.2d at 475.

¶10 Under our “substantial compliance” analysis, we do not

remove candidates from the ballot for mere technical departures

from the form. Instead, “[i]n determining whether a nomination

petition form substantially complies with the statutory

requirements, this [C]ourt has focused on whether the omission

of information could confuse or mislead electors signing the

petition.” Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d at 620.

Absent a clear statement that the legislature intended a

particular form requirement to be indispensible, we will

continue to evaluate petition form challenges in this manner.

¶11 We turn to whether Bee’s nomination petitions

substantially comply with A.R.S. § 16-314. Kent argues they do

not because they nowhere indicate that signers are nominating

Bee for an unexpired vacant term or when that term expires, as

A.R.S. § 16-314(D) requires. That is, the petitions do not

comply at all on this point, much less substantially. We
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disagree with Kent’s narrow approach.

¶12 Section 16-314(D) must be construed in its statutory

context. Under A.R.S. § 16-314(C), candidates generally must

identify in their nominating petitions their name and county of

residence, the office sought, and the date of the primary

election. Subsection (D) does not require information

independent from that required under subsection (C), but instead

instructs candidates to modify the form by adding the expiration

date “following the name of the office being sought.” A.R.S. §

16-314(D). In reviewing non-compliance with any component of

the form, the relevant inquiry is whether the form as a whole

substantially complies with the statutory requirements.

¶13 Thus, to determine whether Bee’s petitions

substantially comply we look at the nomination petition form as

a whole and focus on whether “the omission of” the date on which

the vacant term expired “could confuse or mislead electors

signing the petition.” Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d

at 620. Moreno is instructive. There, a petition form left

blank “the particular day and month of” that year’s primary

election, listing only the election year. Id. ¶ 44. The form

also listed the name of the office sought, an office for which

there was “only one primary election” date possible that year.

Id. Although there could have been different dates for other

offices, we held that there was no risk of confusion because
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“electors would automatically know for which primary election

they were signing.” Id. ¶ 45 (internal quotation marks

omitted).

¶14 This situation is similar. Bee’s petitions listed the

name of the office sought, and there is only one seat for that

office contested in the upcoming election. His petitions could

not have misled electors into believing that they were

nominating Bee for a full term because no such seat will be on

the ballot. These circumstances do not implicate the concerns

that subsection (D) seems intended to address. The legislature

apparently enacted subsection (D) to prevent confusion in

elections with multiple openings for the same office, such as

school board elections. See Hearing on H.B. 2020 Before the H.

Comm. on Educ., 40th Leg., 1st Reg. Sess. (1991); see also

A.R.S. § 15-422(A) (2002) (“Nominating petitions for persons

seeking to fill a vacancy on a [school district] governing board

shall be designated as provided in § 16-314.”). We are

confident that the nomination petition forms did not cause any

elector to be confused about the candidate, office, or election

for which they were signing. Bee’s petition forms substantially

complied with the statutory requirements.

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III. Conclusion

¶15 For the foregoing reasons we reverse the judgment of

the superior court and order Bee’s name to appear on the primary

ballot.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice