IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN DIVISION

RAYMOND L. MALNAR, A QUALIFIED ELECTOR

Plaintiff/Appellee,

v.

ELIZABETH (AKA BETH) JOICE, AN INDIVIDUAL,

Defendant/Appellant,

and

DON COVEY, ED.D., IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF 

SCHOOLS OF MARICOPA COUNTY, ARIZONA; DENNY BARNEY, STEVE 

CHUCRI, ANDY KUNASEK, CLINT L. HICKMAN AND MARIE LOPEZ ROGERS,

IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF 

SUPERVISORS OF MARICOPA COUNTY; HELEN PURCELL, IN HER OFFICIAL 

CAPACITY AS RECORDER OF MARICOPA COUNTY, ARIZONA; AND KAREN 

OSBORNE, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ELECTIONS OF 

MARICOPA COUNTY, ARIZONA,

Defendants.

No. CV-14-0240-AP/EL

Filed November 14, 2014

Appeal from the Superior Court in Maricopa County

The Honorable Douglas Gerlach, Judge

No. CV2014-010726

AFFIRMED

COUNSEL:

David J. Cantelme, D. Aaron Brown, Samuel Saks, Cantelme & Brown, 

P.L.C., Phoenix, for Raymond L. Malnar

Kory A. Langhofer, Thomas J. Basile, Brownstein Hyatt Farber Schreck, 

LLP, Phoenix, for Elizabeth Joice

William G. Montgomery, Maricopa County Attorney, M. Colleen Connor, 

Joe Albo, Deputy County Attorneys, Phoenix, for County Defendants
MALNAR V. JOICE ET AL.

Opinion of the Court

2

JUSTICE TIMMER authored the opinion of the Court, in which VICE 

CHIEF JUSTICE PELANDER and JUSTICE BERCH joined.

JUSTICE TIMMER, opinion of the Court:

¶1 We previously issued an order affirming the superior court’s 

removal of Elizabeth Joice’s name from the 2014 general election ballot for 

a vacant term on the Peoria Unified School District Governing Board. This 

opinion explains our reasoning.

I. BACKGROUND

¶2 There are three vacant positions for terms on the Peoria 

Unified School District Governing Board up for election in the 2014 general 

election. Two of the terms are full four-year terms and one is an unexpired, 

two-year term. On August 4, 2014, Joice filed a nomination paper with the 

Maricopa County Education Service Agency (“Agency”) declaring her

intent to run for the unexpired term. She simultaneously filed nomination

petitions but failed to comply with A.R.S. § 16-314(D), which provides that 

“[t]he nomination petition of a person seeking to fill an unexpired vacant 

term for any public office shall designate the expiration date of the term 

following the name of the office being sought.”

¶3 Elector Raymond L. Malnar filed this action in superior court 

on August 19, challenging Joice’s candidacy based on her non-compliant 

nomination petitions. The next day, Malnar served the complaint and 

attendant documents on the Agency as Joice’s statutory agent pursuant to 

A.R.S. § 16-351(D).

¶4 At a hearing on August 22, Joice’s attorney entered a limited 

appearance to contest the sufficiency of service of process, contending that 

she had not received the complaint from the Agency. In response, the 

Agency’s counsel avowed that the Agency had mailed the complaint to 

Joice and notified her of the lawsuit by telephone. At the superior court’s 

direction, Malnar gave Joice’s attorney a copy of the complaint, and the 

hearing was continued to August 25. At the conclusion of the August 25

hearing, the court upheld Malnar’s challenge and ordered that Joice’s name 

not be included on the ballot.
MALNAR V. JOICE ET AL.

Opinion of the Court

3

¶5 Joice appealed to this Court pursuant to A.R.S. § 16-351(A).

She does not contest that she failed to comply with § 16-314(D) but argues

that the superior court lacked personal jurisdiction and, alternatively,

imposed an inappropriate remedy for the violation.

II. DISCUSSION

A. Personal Jurisdiction

¶6 The officer with whom the candidate files the nomination 

paper and petitions is statutorily appointed as that candidate’s agent to 

receive service of process for any challenge to the nomination petitions.

A.R.S. § 16-351(D). Upon receipt of process, the agent must immediately 

mail it to the candidate and notify the candidate by telephone that the action 

was filed. Id. Joice argues that because nothing in the record reflects that 

the Agency complied with § 16-351(D)’s notification requirements, service 

of process on the Agency was insufficient under the Due Process Clause to 

bestow personal jurisdiction over her.

¶7 Service of process on an agent appointed by statute affords 

sufficient due process if “the statutory provisions in themselves indicate 

that there is reasonable probability that if the statutes are complied with, 

the defendant will receive actual notice.” Wuchter v. Pizzutti, 276 U.S. 13, 24 

(1928); cf. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) 

(“An elementary and fundamental requirement of due process in any 

proceeding which is to be accorded finality is notice reasonably 

calculated . . . to apprise interested parties of the pendency of the action and 

afford them an opportunity to present their objections.”). Joice 

acknowledges that § 16-351(D) meets this standard but argues that the 

absence of evidence demonstrating the Agency’s compliance with the 

statute’s notice requirements rendered service of process defective.

¶8 The record reflects sufficient service of process on Joice. A

process server avowed in a sworn certificate of service that he had served 

the complaint package on the Agency’s elections specialist. Absent any

evidence to the contrary, we presume that the Agency complied with the 

notification requirements of § 16-351(D). Cf. Verdugo v. Indus. Comm’n, 108 

Ariz. 44, 48, 492 P.2d 705, 709 (1972) (noting that “public officers are 

presumed to have done their duty”); Indus. Comm'n v. J. & J. Const. Co., 72 

Ariz. 139, 145, 231 P.2d 762, 765–66 (1951) (presuming that the Industrial 
MALNAR V. JOICE ET AL.

Opinion of the Court

4

Commission served an order as directed by rule). Joice bore the burden of 

producing evidence to rebut this presumption, Ariz. R. Evid. 301, and she 

did not present any evidence suggesting that the Agency failed to comply 

with § 16-351(D). Moreover, the Agency’s counsel avowed that it had

complied with the statute, and Joice never contended otherwise. In sum,

the record reflects proper service on Joice pursuant to A.R.S. § 16-351(D), 

and the superior court correctly rejected Joice’s jurisdictional challenge.

B. Remedy

¶9 Candidates will not be disqualified based on an error or 

omission in nomination documents that substantially comply with 

statutory requirements. Dedolph v. McDermott, 230 Ariz. 130, 131 ¶ 3, 281 

P.3d 484, 485 (2012) (nomination paper); Bee v. Day, 218 Ariz. 505, 507 ¶¶ 8–

9, 189 P.3d 1078, 1080 (2008) (nomination petitions). In determining 

whether substantial compliance exists, we focus on “whether the omission 

of information could confuse or mislead electors.” Dedolph, 230 Ariz. at 133 

¶ 17, 281 P.3d at 487 (quoting Moreno v. Jones, 213 Ariz. 94, 102 ¶ 42, 139 

P.3d 612, 620 (2006)); see also Bee, 218 Ariz. at 507 ¶ 10, 189 P.3d at 1080. We 

review de novo whether nomination documents substantially complied 

with statutory requirements. Moreno, 213 Ariz. at 101–02 ¶ 40, 139 P.3d at 

619–20.

¶10 Joice does not contend that the superior court incorrectly 

struck her name from the ballot for the unexpired two-year board term but 

argues that the court erred by refusing to order that her name appear on the 

ballot as a candidate for a full four-year term. Because full-term candidates 

were not required to designate the expiration date of the term on their 

petitions, Joice contends that electors who signed her petitions necessarily 

intended to place her name on the ballot for a full term. Therefore, she 

asserts, because voters were not confused or misled about which term she 

sought, she substantially complied with the statutory requirements for a 

full-term candidacy.

¶11 We reject Joice’s speculative argument for two reasons. First, 

we are not persuaded that the electors who signed her petitions necessarily 

thought she was running for a full term. Joice filed a nomination paper 

declaring her intent to run for the unexpired term. See A.R.S. § 16-311(B) 

(requiring a person desiring to be a candidate to designate the office sought

in the nomination paper). Consequently, and depending on what they were 
MALNAR V. JOICE ET AL.

Opinion of the Court

5

told by petition circulators, electors could have thought she was running 

for the unexpired term position despite the absence of petition language 

specifying that fact. Had some electors known she was seeking a full term, 

they might have declined to sign her petition because they supported other 

candidates for the two full-term positions or had already signed the 

maximum number of petitions allowed. See A.R.S. § 16-321(A) (limiting the 

number of petitions for the same office that an elector may sign). We cannot 

remedy Joice’s statutory violation in a way that could thwart some electors’ 

intentions.

¶12 Second, because Joice’s nomination paper specified her intent 

to run for the unexpired term, the superior court correctly refused to order 

her name on the ballot for a full term. Relying on Dedolph, Joice nevertheless 

asks that we consider her nomination paper as one seeking a full-term 

candidacy. In Dedolph, the candidate used part of her former married name 

on her nomination paper in violation of A.R.S. § 16-311(G), which required 

her to use her legal name. 230 Ariz. at 131 ¶¶ 1–2, 281 P.3d at 485. Because 

the record demonstrated that electors could not have been confused or 

misled by her error, we ordered that her name be included on the ballot in 

the manner statutorily required. Id. at 133–34 ¶¶ 18–19, 281 P.3d at 487–88.

Unlike the candidate in Dedolph, however, Joice did not make an error in 

her nomination paper; she always intended to run for the unexpired term.

Consequently, there is nothing to correct, and Dedolph is unavailing.

III. CONCLUSION

¶13 For the foregoing reasons, we affirm the superior court’s 

judgment and order that Joice’s name be excluded from the 2014 general 

election ballot for a position on the Peoria Unified School District 

Governing Board.