Klebba v. Carpenter – 8/9/2006
Arizona Supreme Court Dismisses Election Case for Lack of Jurisdiction Because Party Challenging Petitions Failed to Timely Obtain a Signed Order.
Kay Klebba filed an action, alleging that candidate Ted Carpenter had improperly verified a petition. After an evidentiary hearing, the trial court invalidated all signatures on the single petition, but refused to disqualify all other petitions submitted by Carpenter, finding that he had not committed “petition forgery.” The trial judge announced his decision in open court on July 6, 2006; an unsigned minute entry was entered on July 10, and Klebba filed a notice of appeal on July 13.
Carpenter argued that the appeal was untimely under A.R.S. § 16-351(A), which requires that a “notice of appeal be filed within five days after the decision of the superior court,” because the appeal was filed more than five days after the court announced the decision. Klebba argued that Rule 58(a) required all judgments be in writing and signed by a judge and because no signed order had been entered by the trial court, asked that the court entertain the appeal on the merits even though it had been prematurely filed. The court agreed that Rule 58(a) requires that the decision be in writing, signed by the court, and entered before an appeal can be taken. Nevertheless, the court refused to suspend the appeal to allow entry of the requisite signed order because such an approach would be inconsistent with the expedited time frames of elections statutes. The court found that Section 16-351(a) places the burden to obtain a written and signed decision within the statutory period on the party challenging the nominating petitions. The court found that the lack of a signed order made it impossible for the court to exercise appellate review in a timely fashion and therefore dismissed the appeal for lack of jurisdiction.
Justice Hurwitz authored the opinion; Justices McGregor and Bales concurred.