Lubin v. Thomas

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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