Dedolph v. McDermott
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This case concerned a challenge to the nomination of Lois Jean McDermott, a Democratic candidate for the Arizona House of Representatives. McDermott appealed from a superior court judgment striking her from the primary election ballot because she identified her name as "Cheuvront-McDermott, Jean" in her nomination paper. McDermott's legal surname was McDermott. The Supreme Court affirmed in part and reversed in part, holding (1) McDermott substantially complied with the requirements in Ariz. Rev. Stat. 16-311(G), which directs that the candidate's surname shall be printed first; and (2) McDermott's name shall be printed on the primary ballot as "McDermott, Jean Cheuvront."
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SUPREME COURT OF ARIZONA In Division BAHNEY DEDOLPH, ) ) Plaintiff/Appellee, ) ) v. ) ) LOIS JEAN McDERMOTT, Democratic ) Primary Candidate for Arizona ) House of Representatives, ) Legislative District 24; KEN ) BENNETT, Secretary of State; ) HELEN PURCELL, Maricopa County ) Recorder; KAREN OSBORNE, ) Maricopa County Director of ) Elections; FULTON BROCK, ) Maricopa County Supervisor; ) DON STAPLEY, Maricopa County ) Supervisor; ANDY KUNASEK, ) Maricopa County Supervisor; ) MAX WILSON, Maricopa County ) Supervisor; MARY ROSE WILCOX, ) Maricopa County Supervisor, ) ) Defendants/Appellants. ) ) __________________________________) Arizona Supreme Court No. CV-12-0226-AP/EL Maricopa County Superior Court No. CV2012-009302 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Arthur T. Anderson, Judge AFFIRMED IN PART, REVERSED IN PART ________________________________________________________________ COPPERSMITH SCHERMER & BROCKELMAN PLC By Andrew S. Gordon Roopali H. Desai Attorneys for Bahney Dedolph Phoenix SNELL & WILMER, L.L.P. By Kory A. Langhofer Ian M. Fischer Attorneys for Lois Jean McDermott Phoenix THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Michele L. Forney, Assistant Attorney General Attorney for Ken Bennett Phoenix WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix By M. Colleen Connor J. Kenneth Mangum Attorneys for Helen Purcell, Karen Osborne, Fulton Brock, Donald T. Stapley, Jr., Andrew Kunasek, Max Wilson, and Mary Rose Wilcox _______________________________________________________________ B A L E S, Vice Chief Justice ¶1 Lois This case concerns a challenge to the nomination of Jean McDermott, a Democratic candidate for the House of Representatives in Legislative District 24. Arizona McDermott appealed from a superior court judgment striking her from the primary election ballot because she incorrectly identified her surname as Cheuvront-McDermott in her nomination paper. issued an order McDermott, in that concluding affirming McDermott could Jean part Cheuvront. and reversing appear This on opinion the in We part, ballot as explains our reasoning. I. ¶2 A person partisan primary seeking election to appear must on file nomination a the ballot for paper a that identifies, among other things, the exact manner in which the person desires to have the person s name printed on the official ballot pursuant to subsection 2 G. A.R.S. § 16-311(A). Subsection G further provides that the person s name shall be limited to the candidate's surname and given name or names, an abbreviated version of such names or appropriate initials such as Bob for Robert , Jim for James , Wm. for William or S. for Samuel . Nicknames are permissible, but in no event shall nicknames, abbreviated versions or initials of given names suggest reference to professional, fraternal, religious or military titles. No other descriptive name or names shall be printed on the official ballot, except as provided in this section. Candidates abbreviated names or nicknames may be printed within quotation marks. The candidate's surname shall be printed first, followed by the given name or names. ¶3 that A person who does not file a timely nomination paper complies with [§ 16-311] is not eligible to have the person s name printed on the official ballot for that office. Id. § 16-311(H). Under well-settled law, however, we do not remove candidates from the ballot for mere technical departures from the statutorily required forms. 507 ¶¶ 9-10, electors whether 189 right to nominating P.3d nominate papers statutory requirements. ¶4 Bahney 1078, 1080 Bee v. Day, 218 Ariz. 505, (2008). legitimate Respecting candidates, substantially comply we the assess with the seeking to See id. Dedolph brought this action disqualify McDermott because her nomination paper stated that she desired to appear on the ballot as Cheuvront-McDermott, Jean when her legal surname is McDermott. McDermott responded by arguing that this challenge was untimely under A.R.S. § 16351; that § 16-311(G) allowed 3 her to identify herself as Cheuvront-McDermott as a nickname; and, in any event, that she had substantially complied with the statutory requirements. ¶5 The trial court held an evidentiary hearing, at which the following facts were undisputed. In 1957, McDermott, who had moved to Phoenix the preceding year, married Jerry Cheuvront and changed her name to Lois Jean Cheuvront. The next year, the couple moved into the area that is now District 24, where they lived until the 1970s and McDermott taught in public schools. Students and parents knew her under her married name Cheuvront. In the mid-1970s, McDermott moved out of District 24, but she continued working at a hospital and art museum there. She also maintained business dealings in the district under the name of Cheuvront, both as a construction company. realtor and through her husband s In 1984, she moved back to District 24 for several years before relocating to Massachusetts in 1988. ¶6 In 1989, McDermott remarried surname from Cheuvront to McDermott. ill in 1993, the couple moved to and changed her legal After Mr. McDermott became Phoenix. In 1998, she successfully ran for precinct committeewoman as Jean McDermott. After Mr. McDermott died in 2002, she again ran for precinct committeewoman as Jean McDermott in 2002, 2004, and 2006. ¶7 McDermott now again lives in District 24. She testified that, because she was known as Jean Cheuvront when she previously lived in this district, she often introduces herself 4 as Jean Cheuvront-McDermott or clarifies that her previous name was Cheuvront. As a candidate for the House of Representatives for District 24, McDermott circulated nomination petition forms for electors to sign that identified her as Jean Cheuvront McDermott. Dedolph does not dispute that McDermott obtained sufficient signatures to qualify for the ballot. ¶8 The superior court ruled that Dedolph s challenge was timely, that McDermott had not complied with § 16-311 because Cheuvront-McDermott is not her surname, and that she also had not substantially complied with the statute. superior court ordered that McDermott not candidate on the 2012 primary election ballot. Accordingly, the be listed as a McDermott filed a timely appeal with this Court pursuant to § 16-351(A) and ARCAP 8.1. II. ¶9 McDermott first argues that Dedolph s challenge to her nomination was untimely under § 16-351(A), which provides that such actions must be filed no later than 5:00 p.m. of the tenth day, excluding Saturday, Sunday and other legal holidays, after the last day for filing nominating papers and petitions. The deadline for filing nominating papers and petitions was May 30, 2012. See § 16-311(A). Because the tenth day after May 30 was June 9, a Saturday, McDermott concludes that the deadline for filing a challenge to her nomination was Monday, June 11, 2012. 5 Dedolph filed this action on Wednesday, June 13. ¶10 Before 2003, § 16-351(A) required that nomination challenges be filed within ten days, excluding Saturday, Sunday and other legal holidays, after nomination papers and petitions. the last day for filing We construed that language as giv[ing] an elector ten business days after the petition filing deadline to challenge the validity of signatures on nomination petitions. Powers v. Carpenter, 203 Ariz. 116, 119 ¶ 15, 51 P.3d 338, 341 (2002). Dedolph filed her challenge on the tenth business day after the May 30 petition filing deadline. ¶11 McDermott argues that § 16-351(A) no longer allows nomination challenges to be filed within ten business days after the petition filing deadline. In 2003, the legislature amended the statute by replacing within ten days with the phrase no later than 5:00 p.m. of the tenth day. ch. 233, § 5 (1st Reg. Sess.). 2003 Ariz. Sess. Laws, Based on this amendment, McDermott contends that challenges now must be filed within ten calendar days after the petition filing deadline, unless the tenth day falls on a Saturday, Sunday, or other legal holiday. ¶12 phrase We disagree. excluding Under McDermott s interpretation, the Saturday, Sunday and other would effectively be rendered superfluous. legal holidays Even without this language, if the deadline falls on one of the identified days, a challenge filed on the next business day would be timely. 6 See Bohart v. Hannah, 213 Ariz. 480, 482 n.2 ¶ 7, 143 P.3d 1021, 1023 n.2 (2006) (noting that under § 16-351(A), if five- calendar-day deadline falls on Saturday, Sunday, or a holiday, notice of appeal is timely when filed on the next business day); A.R.S. § 1-303 (allowing performance on next business day when deadline falls on a holiday). Moreover, McDermott s interpretation implies that the legislature, through the 2003 amendment, intended to significantly reduce the time for filing nomination petition challenges by replacing the ten-business-day period with a ten-calendar-day period. intended this result, it could If the legislature had have simply provided that nomination challenges must be filed not later than 5:00 p.m. within ten days after the petition filing deadline. Instead, the legislature evidently intended to set a 5:00 p.m. deadline on the tenth business day after the petition filing deadline. See Ariz. State Senate, Fact Sheet for S.B. 1046, 46th Leg., 1st Reg. Sess. [c]larifies (Feb. that 23, the 2003) (noting deadline for that filing 2003 any amendment court action challenging the nomination of candidates is 5:00 p.m. of the 10th day following the last day for filing nominating papers and petitions, excluding weekends and legal holidays ). ¶13 Dedolph timely filed her challenge by 5:00 p.m. on the tenth business day after the petition filing deadline. 7 III. ¶14 her McDermott argues that § 16-311(G) allowed her to list name on the ballot as Cheuvront-McDermott, Jean and, alternatively, that she should remain on the ballot because she substantially complied with the statutory requirements. ¶15 We agree with the superior court that McDermott did not technically comply with § 16-311(G). The first sentence of subsection (G) requires a candidate to specify how his or her name should appear on the official ballot, restricting the choices to the candidate s surname and given name or names, an abbreviated version of such names or appropriate initials such as Bob for Robert , Jim for James, Wm. for William or S. for Samuel. provides that McDermott notes that the next sentence [n]icknames are permissible, but in no event shall nicknames, abbreviated versions or initials of given names suggest reference military titles. to professional, fraternal, religious or She then contends that Cheuvront-McDermott is a permissible nickname surname under the statute. ¶16 legal Under § 16-311(G), a candidate must list his or her surname in the nomination appear first on the ballot. papers, and that name must The statute begins by directing that the candidate s name shall be limited to the candidate s surname and given name or names, an abbreviated version of such names or appropriate initials, and it concludes by requiring 8 that [t]he candidate s surname shall be printed first, followed by the given intervening name or names. statutory Id. declaration (emphasis that added). [n]icknames The are permissible allows nicknames in addition to or in place of a candidate s given name, but it does not allow the substitution of a nickname for the required surname. For example, the statute might have allowed Ernest W. McFarland to appear on the ballot as McFarland, Ernest Mac , because his nickname was Mac, but it would not have allowed him to use Mac in lieu of his surname. Noble and career of Cf. James W. Johnson, Arizona Politicians: The the Notorious Ernest Mac 62, 65 (2002) McFarland as (discussing U.S. political Senator, Arizona Governor, and Arizona Supreme Court Justice). ¶17 If McDermott wanted the ballot to reflect that she is also known as Cheuvront, she should have listed her name in the nomination paper as Cheuvront-McDermott, comply with § McDermott, Jean. Jean Because 16-311(G), we must Cheuvront she did consider rather not strictly whether substantially complied, an issue we review de novo. than she Moreno v. Jones, 213 Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006). This analysis considers the nomination paper as a whole, see Bee, 218 Ariz. at 507-08 ¶ 12, 189 P.3d at 1080-81, and focuse[s] on whether the omission of information could confuse or mislead electors, Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d at 9 620. ¶18 McDermott substantially complied with § 16-311(G). Her nomination petition forms listed her name as Jean Cheuvront McDermott, three names by which she has been known. She could have used nominating petitions in this form if she had listed her name as McDermott, Jean Cheuvront in her nomination paper filed under listing § her nomination 16-311(G). name paper as would Nothing suggests that Cheuvront-McDermott, cause electors McDermott s Jean signing her in her nomination petitions to be confused or misled about her identity. ¶19 Our conclusion that McDermott substantially complied with the requirements in § 16-311(G) does not mean that she should appear on the ballot as Cheuvront-McDermott, Jean. The statute directs that [t]he candidate s surname shall be printed first, and McDermott s substantial compliance does not relieve the election officials responsible for printing the ballots from this statutory prepare requirement. ballots containing See the A.R.S. § names 16-503 of (duty to candidates). Accordingly, we ordered that McDermott s name be printed on the primary ballot as McDermott, Jean Cheuvront. 10 IV. ¶20 For the foregoing reasons, we affirmed in part and reversed in part the judgment of the superior court. ___________________________________ Scott Bales, Vice Chief Justice CONCURRING: ___________________________________ Rebecca White Berch, Chief Justice ___________________________________ Robert M. Brutinel, Justice 11
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