                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
         DOUG CLARK, AN INDIVIDUAL AND QUALIFIED ELECTOR,
                          Plaintiff/Appellee,

                                  v.

  JIMMIE MUÑOZ, JR., AN INDIVIDUAL AND REAL PARTY IN INTEREST; THE
  HONORABLE DENNY BARNEY; STEVE CHUCRI; ANDY KUNASEK; CLINT L.
     HICKMAN; MARIE LOPEZ ROGERS, THE DULY ELECTED/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 COUNTY DIRECTOR OF ELECTIONS, WHO IS NAMED
                 SOLELY IN HER OFFICIAL CAPACITY,
                         Defendants/Appellants.

                        No. CV-14-0182-AP/EL
                          Filed July 29, 2014

          Appeal from the Superior Court in Maricopa County
              The Honorable Thomas L. LeClaire, Judge
                         No. CV2014-008802
                            AFFIRMED

COUNSEL:

Scott E. Williams, Mark B. Zinman, Williams, Zinman & Parham P.C.,
Scottsdale, for Doug Clark

Paul M. Weich, Law Offices of Paul Weich, Tempe, for Jimmie Muñoz, Jr.

William G. Montgomery, Maricopa County Attorney, M. Colleen Connor,
J. Randall Jue, Deputy County Attorneys, Phoenix, for Maricopa County
Defendants

CHIEF JUSTICE BALES authored the opinion of the Court, in which
JUSTICE BERCH and JUSTICE BRUTINEL joined.

CHIEF JUSTICE BALES, opinion of the Court:
                            CLARK V. MUÑOZ
                            Opinion of the Court

¶1             Jimmie Muñoz, Jr. filed a timely appeal of the trial court’s
order removing his name from the ballot for the office of Constable for the
Downtown Justice of the Peace Precinct of Maricopa County. On June 27,
2014, we entered an order affirming the judgment of the trial court and
stating that a written decision would follow. This is that decision.

                                      I.

¶2            Doug Clark, the incumbent constable, challenged the
sufficiency of Muñoz’s nominating petitions. As one of two alternative
bases for its order, the trial court held that several of Muñoz’s petition
sheets were invalid because they contained a photograph of the Maricopa
County constable’s badge that could confuse or mislead voters. When the
signatures on these sheets were excluded, Muñoz had fewer than the
required 203 valid signatures.

¶3             The trial court’s ruling hinged on its interpretation of A.R.S.
§ 16-315(A), which sets out the required form for nomination petitions. We
review the trial court’s statutory interpretation de novo. Moreno v. Jones,
213 Ariz. 94, 98 ¶ 23, 139 P.3d 612, 616 (2006).

¶4            Section 16-315(A)(1)–(4) specifies the basic layout of the
petition sheets and the information they must contain, stating that petitions
shall be in “substantially” the specified form. Subsection (5) provides that
“[a] photograph of the candidate may appear on the nomination petition.”
The petitions at issue did not include Muñoz’s photograph, but instead
displayed a photograph of a constable’s badge.

¶5             The statute does not explicitly prohibit photographs of things
other than the candidate (or other extraneous markings), but we think it
unlikely that the legislature would specify only one kind of photograph if
it meant to authorize photographs more generally. Cf. Powers v. Carpenter,
203 Ariz. 116, 118 ¶¶ 10–11, 51 P.3d 338, 340 (2002) (explaining that a statute
authorizing signors only of initiative, referenda, or subdivision formation
petitions to withdraw their signatures did not permit signors of nomination
petitions to do the same).


¶6             By including the badge photograph, Muñoz’s petitions did
not strictly comply with the specified statutory form. However, “we do not

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                            CLARK V. MUÑOZ
                            Opinion of the Court

remove candidates from the ballot for mere technical departures from the
form.” Bee v. Day, 218 Ariz. 505, 507 ¶ 10, 189 P.3d 1078, 1080 (2008).
Instead, “we assess whether nominating papers substantially comply with
the statutory requirements.” Dedolph v. McDermott, 230 Ariz. 130, 131 ¶ 3,
281 P.3d 484, 485 (2012).

¶7             Our past nomination petition cases have dealt primarily with
omissions from, not additions to, the statutorily prescribed form. See, e.g.,
Kennedy v. Lodge, 230 Ariz. 134, 135 ¶ 7, 281 P.3d 488, 489 (2012). In these
cases, “this court has focused on whether the omission of information could
confuse or mislead electors signing the petition.” Moreno, 213 Ariz. at 102
¶¶ 42, 44, 139 P.3d at 620 (specifying the year, but not the exact date, of the
primary election for state legislative office was not confusing); see also
Kennedy, 230 Ariz. at 136 ¶¶ 9, 16, 281 P.3d at 490 (failure to specify the
office of judge — the only kind of superior court office on the ballot — was
not confusing, but failure to specify which of several divisions up for
election was confusing); Bee, 218 Ariz. at 508 ¶ 14, 189 P.3d at 1081 (failure
to specify candidate was running for a partial term was not confusing when
only the partial term would be on the ballot).

¶8            We hold that the same “potential to confuse or mislead”
standard equally applies to unauthorized additions to the form. Cf.
Dedolph, 230 Ariz. at 133 ¶ 18, 281 P.3d at 487 (a candidate name that was
similar but not identical to the name listed in her nomination paper was not
confusing). And we agree with the trial court that the badge photograph
could confuse or mislead voters. Voters might mistakenly believe that
Muñoz is an incumbent constable, especially since another Jimmie Muñoz
is the constable for a neighboring precinct. Voters might also believe that
the petition form is an official County document, and thereby
misunderstand the purpose that it serves. Therefore, Muñoz’s petition
sheets containing the photograph do not substantially comply with § 16-
315(A).

                                      II.

¶9           Even apart from the problem with the petition sheets, the trial
court ruled that Muñoz had not submitted the required 203 valid
signatures. Before trial, the Maricopa County Elections Department had
provided a “Petition Signature Worksheet” to both parties and to the trial
court. That worksheet showed that Muñoz had filed 287 signatures, of

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                             CLARK V. MUÑOZ
                             Opinion of the Court

which 61 were invalid, leaving him with 226 valid signatures. Based on
testimony by several voters who said that they had not signed Muñoz’s
petitions, the trial court determined that some additional signatures were
invalid. Counsel conferred and advised the court that it should strike 41
more signatures, leaving Muñoz with only 185 valid signatures.

¶10           As the court read its findings into the record, Muñoz realized
that a mistake had been made in the County’s worksheet. On the video
recording of the trial, he can be heard telling his counsel that he had actually
filed 307 signatures, twenty more than the worksheet reflected, but he did
not object or make the error known to the trial judge. The next day, the
County filed a Notice of Error stating that Muñoz had in fact filed 307
signatures. Muñoz immediately moved for a new trial under Arizona Rule
of Civil Procedure 59(a)(4) and (8). The court denied the motion in an order
that Muñoz did not appeal.

¶11          Muñoz now argues that the trial court committed
fundamental error by basing its decision, in part, on the County worksheet
that understated the number of signatures he submitted.

¶12            When a criminal defendant does not object to an error at trial,
this Court reviews for fundamental error. State v. Henderson, 210 Ariz. 561,
567 ¶ 19, 115 P.3d 601, 607 (2005). In civil cases, however, we have
“recognize[d] that the ‘fundamental error’ doctrine should be used
sparingly, if at all.” Williams v. Thude, 188 Ariz. 257, 260, 934 P.2d 1349, 1352
(1997). In the tightly compressed schedule for nominating petition
challenges, remand for new trials often will be impractical. However, we
need not decide whether the fundamental error doctrine applies in this
context. Even if the doctrine applies, Muñoz cannot meet his burden of
showing “that the error in his case caused him prejudice,” Henderson, 210
Ariz. at 567 ¶ 20, 115 P.3d at 607, because his name would have been
removed from the ballot regardless of the incorrect totals listed in the
worksheet.

                                      III.

¶13          We affirm the trial court’s judgment removing Muñoz’s name
from the primary ballot.



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