                    SUPREME COURT OF ARIZONA
                           In Division

JILL KENNEDY, an individual and   )   Arizona Supreme Court
qualified elector,                )   No. CV-12-0221-AP/EL
                                  )
              Plaintiff/Appellee, )   Coconino County
                                  )   Superior Court
                 v.               )   No. CV2012-00386
                                  )
JOSEPH LODGE, an individual,      )
Real Party in Interest,           )
THE HONORABLE CARL TAYLOR, MATT   )   O P I N I O N
RYAN, ELIZABETH ARCHULETA, LENA   )
FOWLER AND MANDY METZGER, THE     )
DULY ELECTED OR APPOINTED         )
MEMBERS OF THE COCONINO COUNTY    )
BOARD OF SUPERVISORS, WHO ARE     )
NAMED SOLELY IN THEIR OFFICIAL    )
CAPACITY; WENDY ESCOFFIER, CLERK )
OF THE BOARD OF SUPERVISORS, WHO )
IS NAMED SOLELY IN HER OFFICIAL   )
CAPACITY; THE COCONINO COUNTY     )
BOARD OF SUPERVISORS; THE         )
HONORABLE CANDACE D. OWENS, THE   )
DULY ELECTED COCONINO COUNTY      )
RECORDER, WHO IS NAMED SOLELY IN )
HER OFFICIAL CAPACITY, AND THE    )
HONORABLE PATTY HANSEN, THE DULY )
APPOINTED COCONINO COUNTY         )
ELECTION ADMINISTRATOR, WHO IS    )
NAMED SOLELY IN HER OFFICIAL      )
CAPACITY,                         )
                                  )
          Defendants/Appellants. )
_________________________________ )

        Appeal from the Superior Court in Coconino County
              The Honorable Michael R. Bluff, Judge

                             AFFIRMED
________________________________________________________________
WILLIAMS, ZINMAN, & PARHAM, P.C.                                           Scottsdale
     By   Scott E. Williams
          Mark B. Zinman
          Melissa A. Parham
Attorneys for Jill Kennedy

COPPERSMITH, SCHERMER, & BROCKELMAN, PLC                 Phoenix
     By   Andrew S. Gordon
          Roopali Hardin Desai
Attorneys for Joseph Lodge
________________________________________________________________

B E R C H, Chief Justice

¶1        On June 27, 2012, we issued an order affirming the

superior court’s judgment that nominating petitions designating

the office sought as “Superior Court,” without specifying the

office and division number, did not substantially comply with

A.R.S. §§ 16-314 (Supp. 2011), -331, and -333 (2006).                                This

opinion explains our reasoning.

                   I.     FACTS AND PROCEDURAL HISTORY

¶2        Joseph       Lodge    is    a    judge     of    Division    Five     of    the

Superior Court in Coconino County who seeks to run for election

to a new term in that office.                Two Coconino County judgeships,

Division Three and Division Five, are up for election this year.

The primary election is scheduled for August 28, 2012.

¶3        To    qualify     for      the    primary       election    ballot,      Lodge

needed   to    obtain     525     valid      signatures       on     his   nominating

petitions.       See     A.R.S.      §§    16-314,    -322(A)(4)       (Supp.      2011)

(requiring     certain    percentage        of    qualified     electors      to     sign

nominating petitions for superior court judge).                      He timely filed


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99 nominating petitions containing a total of 1,110 signatures.

Each petition states that Lodge is running for the office of

“Superior   Court.”       The   petitions     do    not       specify       that   he    is

running for the office of “Judge,” nor do they specify that he

seeks election to Division Five.

¶4          Jill Kennedy, a qualified elector, challenged Lodge’s

petitions, arguing that they do not substantially comply with

A.R.S. §§ 16-314, -331, and -333 because they do not specify the

office that Lodge was seeking.            At an evidentiary hearing below,

however, Lodge and several of his petition circulators testified

that when they circulated petitions they told signers that Lodge

was running for superior court judge in Division Five.                                  The

circulators also testified that they offered cards to signers

specifying the division number.            Other testimony indicated that

some   petition     signers,     after     looking       at    Lodge’s        petition,

inquired as to the office for which he was running.

¶5          The superior court found “insufficient evidence . . .

to establish whether or not petition signers were . . . actually

confused or misled” by the petitions.               The court concluded that

“electors    signing     Mr.    Lodge’s    petitions          would     not    know      by

reading    the   petition      what   office”      and    division          within      the

superior    court   he   was    seeking.      After       ruling       that    none      of

Lodge’s    petitions     substantially     complied       with        the    applicable

statutes, the court entered judgment for Kennedy and ordered


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that Lodge’s name not be placed on the 2012 primary or general

election ballots.

¶6              Lodge timely appealed.            We have jurisdiction pursuant

to Rule 8.1 of the Arizona Rules of Civil Appellate Procedure,

Article 6, Section 5(3) of the Arizona Constitution, and A.R.S.

§ 16-351(A) (Supp. 2011), which provides for a direct appeal to

this Court.

                                    II.   DISCUSSION

¶7              We review de novo whether a petition form substantially

complies        with    statutory    requirements.         Moreno      v.    Jones,   213

Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006).                            In making

this   determination,         this     Court     “has   focused       on    whether   the

omission        of     information     could     confuse   or     mislead       electors

signing the petition.”              Id. ¶ 42 (citation omitted); Bee v. Day,

218 Ariz. 505, 508 ¶ 13, 189 P.3d 1078, 1081 (2008); see also

A.R.S.      §    16-333     (“Any     petition     filed   by     a    candidate      for

[superior] court which does not comply with the provisions of

this chapter shall have no force or effect.”).                             Thus, we must

determine whether the omission of the office or the division

number from Lodge’s petitions could have confused or misled the

electors who signed them.

       A.       Omission of the Office Designation “Judge”

¶8              The omission of the word “Judge” from Lodge’s petitions

does not render the petitions fatally defective.                       Our opinion in


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Moreno       is   instructive.         There,     an    elector      challenged      the

validity of a state senate candidate’s petition that omitted the

specific date of the primary election and included only the year

of the election.          Moreno, 213 Ariz. at 101-02 ¶¶ 40-42, 139 P.3d

at 619-20.        We concluded that the omitted information could not

have    confused     or    misled     electors    because      there   is     only   one

primary election for state legislative office in any election

year.        Id. at 102 ¶ 44, 139 P.3d at 620.              We therefore held that

electors would “automatically know for which primary election

they were signing.”            Id. ¶ 45 (internal quotes omitted); see

also Bee, 218 Ariz. at 508 ¶¶ 13-14, 189 P.3d at 1081 (holding

that the omission of the expiration date of the candidate’s

unexpired vacant term was not fatal because only one seat for

that office was open in that election).

¶9             Likewise,     only   one    Coconino         County   Superior     Court

office is up for election this year:                        superior court judge.

Therefore, electors would automatically know for which office

they    were      signing.      The    omission        of    “Judge”   from     Lodge’s

petitions could not have confused or misled signers and, thus,

does not render the petitions fatally defective.

        B.     Omission of the Division Number

¶10            We turn to the omission of the division number from

Lodge’s petitions.           Arizona law provides that if “two or more

judges of the superior court are to be . . . elected for the


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same term, it shall be deemed that there are as many separate

offices to be filled as there are judges of the superior court

to be elected.”        A.R.S. § 16-331(A).          Further, each office must

be “designated by the distinguishing number of the division of

the court,” id., and that designation “shall be used on all

nominating petitions,” id. § 16-331(B); see also Ariz. Const.

art. 6, § 12(A) (requiring ballots for superior court judicial

candidates to include “the division and title of the office”).

Thus,    each    superior      court     judgeship       is    a     separate    office

identifiable by the particular division to which the candidate

seeks election.        And, as Lodge acknowledges, a “petition signer

needs   to    know    for    which     division    he    is    nominating       someone

because he can only nominate one candidate for each division.”

See A.R.S. § 16-314(C).

¶11           In Marsh v. Haws, the plaintiff challenged the validity

of three candidates’ petitions to run for the office of Justice

of the Peace for the South Phoenix Precinct.                          111 Ariz. 139,

140,    526    P.2d   161,     162    (1974)     (per    curiam).        Two    of   the

candidates’      petitions      listed    the     office      as   “Justice     of   the

Peace,” without specifying the precinct.                       Id.     At the time,

Maricopa County had seventeen Justice of the Peace precincts,

fourteen of which were up for election that year.                       Id.     We held

that    the     petitions       for      these     two     candidates          did   not

substantially         comply    with      statutory        requirements         because


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electors could not determine from the face of the petitions for

which precinct the candidates were running.                 Id.

¶12           Like the petitions in Marsh, Lodge’s petitions did not

include any information that would inform the petition signers

of the division for which he was running.                         Because of that

material omission, a signer would not “automatically know that

he was nominating a candidate for the office” of Division Five

of the Coconino County Superior Court.               Moreno, 213 Ariz. at 102

¶ 43, 139 P.3d at 620 (quoting Marsh, 111 Ariz. at 140, 526 P.2d

at    162).      Lodge’s     nominating       petitions      therefore       do    not

substantially comply with statutory requirements.                      See A.R.S.

§ 16-331(A); see also Marsh, 111 Ariz. at 140, 526 P.2d at 162.

¶13           Lodge argues that his petitions substantially complied

because   little     evidence      showed   that     electors       were    actually

confused or misled by the omission.                He asserts that electors

were aware of the division for which he was running because he

and   some     petition    circulators      handed    out    palm     cards,      wore

campaign stickers, posted campaign signs, and recited a speech —

all of which identified Lodge as a candidate for superior court

judge   in     Division    Five.      We    conclude,       however,       that   this

extrinsic information cannot be used to cure the defect in his

petitions.

¶14           To support his claim that we should consider evidence

extrinsic to the petitions to show voters’ lack of confusion,


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Lodge relies on Clifton v. Decillis, 187 Ariz. 112, 116, 927

P.2d    772,     776    (1996),    in    which     we    held   that      an       independent

candidate’s       petitions       substantially           complied        with       statutory

requirements despite leaving blank the space reserved for party

designation.           Although we noted in Clifton that the candidate

told each elector that she was running as an independent, that

extrinsic       information       did     not      factor    into       our        substantial

compliance analysis.           Id. at 113, 927 P.2d at 773.                        Rather, we

concluded that the party designation was not essential to an

independent candidacy because independent candidates do not run

in     primary     elections       and,      by     definition,         have        no   party

designation.       Id. at 115-16, 927 P.2d at 775-76.                       Because party

designation was not essential, its omission was not fatal to the

petitions.       Clifton does not support Lodge’s use of and reliance

on extrinsic evidence in the context presented here.

¶15            The relevant inquiry thus is whether the nominating

petition         itself     substantially               complies        with         statutory

requirements.          See Bee, 218 Ariz. at 508 ¶ 12, 189 P.3d at 1081

(“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.”

(emphasis       added)).          Allowing        candidates       to     compensate      for

petition defects with extrinsic evidence that such defects did

not result in voter confusion would eviscerate the statutory


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requirement that all essential information be made available to

the elector on the petition form.                  See A.R.S. §§ 16-314(C),

-331, -333.       Furthermore, it would encourage an inquiry into

whether    each    signer    was    actually        confused          or    misled,     a

determination     that   could     be    made    here     only    by       ascertaining

whether at least 525 qualified petition signers understood that

Lodge was running for judge of Division Five when each signed

Lodge’s petition.        This is precisely the type of inquiry that

the statutory petition requirements are designed to avoid.

¶16        The applicable statutes require superior court judicial

nominating    petitions     to   specifically        designate         the    division

number of the judicial office sought.                     Under our cases, the

relevant   inquiry    is    whether      an     elector    would       know    just    by

reading his petitions for which division Lodge was running.                           The

petitions here fail to adequately inform electors that Lodge

sought election to Division Five because they do not specify any

division and more than one division is up for election in this

cycle.       Accordingly,    the    petitions       failed       to    substantially

comply with statutory requirements.




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                        III.   CONCLUSION

¶17      For the foregoing reasons, we affirm the judgment of

the superior court.


                               __________________________________
                               Rebecca White Berch, Chief Justice


CONCURRING:


___________________________________
A. John Pelander, Justice


___________________________________
Robert M. Brutinel, Justice




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