Katan v. City of Prescott – 12/3/2009

December 30, 2009

Arizona Court of Appeals Division One Holds that Where a City Charter Provides that the City Must List the Top Six Candidates From the Primary Election on the General Election Ballot, the City is Not Required to List Those Candidates Who Were Not Among the Top Six Vote Getters Even If One of the Top-Six Vote Getters Eventually Drops Out of the Race.

The City of Prescott (“the City”) held a primary election for three vacant City Council seats.  The City listed eight candidates on the ballot.  According to the City Charter, a candidate receiving a majority of all votes cast is elected.  Otherwise, a general election is required, in which the top six vote-getters from the primary election (twice the number of offices to be filled) are listed.  No candidate received a majority of all votes cast.  Paul Katan (“Katan”) received the seventh most votes, and Bob Bell (“Bell”) received the fifth most votes.  After the primary, Bell informed the City Clerk that he would not continue to run for the City Council position.  Katan demanded that his name be placed on the general election ballot because he was now one of the six candidates receiving the highest number of votes in the primary.  The City refused to list Katan, who, as a result, filed a special action complaint in the superior court.  The superior court concluded that Katan should be listed on the ballot and ordered the City to do so.  This appeal followed.

The Arizona Appeals Court first rejected the City’s argument that A.R.S. § 16-673, which requires a court contest to be filed within five days of the declaration of election results, deprived the Court of jurisdiction.  The Court explained that § 16-673 is inapposite because Katan was challenging the City’s compliance with its Charter and not the results of the primary election.

The Court next held that the City was not required to include Katan on the general election ballot.  The Court reasoned that following the primary election Katan was not one of the top six vote-getters, and thus he was eliminated from the race and not eligible to be listed on the ballot.  Whether Bell was listed on the ballot or not, Katan’s right to be listed could not be restored once he was not among the top six vote-getters.  The Court concluded that the language of the City Charter “plainly prevents anyone not among the top six in the primary from being listed on the general election ballot.”  The Charter contained no mechanism for replacing one of the top six vote-getters in the primary, and the Court refused to create one by judicial fiat. 

Judge Irvine authored the opinion; Judges Gemmill and Thompson concurred.