SUPREME COURT OF ARIZONA 

In Division 

 

KAY KLEBBA, an individual and ) Arizona Supreme Court 

qualified elector, ) No. CV-06-0239-AP/EL 

 ) 

 Plaintiff/Appellant/ ) 

 Cross-Appellee, ) Maricopa County 

 ) Superior Court 

 v. ) No. CV2006-007339 

 ) 

TED CARPENTER, an individual, ) 

 ) O P I N I O N 

 Defendant/Appellee/ ) 

 Cross-Appellant, ) 

 ) 

THE HONORABLE R. FULTON BROCK, ) 

DON STAPLEY, ANDREW KUNASEK, MAX ) 

W. WILSON, MARY ROSE WILCOX, THE ) 

DULY ELECTED OR 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 ) 

SOLELY NAMED IN HER OFFICIAL ) 

CAPACITY; THE HONORABLE JANICE ) 

K. BREWER, THE DULY ELECTED ) 

ARIZONA SECRETARY OF STATE, WHO ) 

IS NAMED SOLELY IN HER OFFICIAL ) 

CAPACITY, ) 

 ) 

 Defendants. ) 

__________________________________) 

 

Appeal from the Superior Court in Maricopa County 

The Honorable Douglas L. Rayes, Judge 

APPEAL DISMISSED 
2

________________________________________________________________ 

BOATES & CRUMP PLLC Anthem 

 By Craighton T. Boates 

Attorneys for Kay Klebba 

CANTELME & BROWN PLC Phoenix 

 By David J. Cantelme 

 D. Aaron Brown 

Attorneys for Ted Carpenter 

ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix 

 By Bruce P. White, Deputy County Attorney 

Attorneys for R. Fulton Brock, Don Stapley, Andrew Kunasek, 

Max Wilson, Mary Rose Wilcox, Helen Purcell, and Karen Osborne 

TERRI SKLADANY, ACTING ARIZONA ATTORNEY GENERAL Phoenix 

 By Diana L. Varela, Assistant Attorney General 

Attorneys for Janice Brewer, Arizona Secretary of State 

________________________________________________________________ 

H U R W I T Z, Justice 

¶1 This case arises out of a challenge to nomination 

petitions filed by Ted Carpenter, a Republican candidate for the 

State Senate in Legislative District 6. We previously ordered 

this appeal dismissed for lack of jurisdiction; this opinion 

explains our reasoning. 

I. 

¶2 After Carpenter submitted his nomination petitions, 

Kay Klebba, a registered voter in District 6, filed this action 

alleging that Carpenter had improperly verified a petition. 

After an evidentiary hearing, the superior court held that 

Carpenter was not the person before whom the signatures were 

written on the challenged petition and invalidated all 
3

signatures on that petition. See Ariz. Rev. Stat. (“A.R.S.”) § 

16-321(D) (Supp. 2005) (requiring “[t]he person before whom the 

signatures were written” to verify signatures); Brousseau v. 

Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984) 

(holding that no signatures on “petitions containing false 

certifications” may be considered). The court held, however, 

that Carpenter had not committed “petition forgery” under A.R.S. 

§ 16-351(F) (Supp. 2005), and refused to disqualify all other 

petitions submitted by him on that ground. Because Carpenter 

still had sufficient valid signatures to qualify for the ballot 

after the signatures on the challenged petition were stricken, 

the superior court found for Carpenter. 

¶3 The trial judge announced his decision in open court 

on July 6, 2006. An unsigned minute entry memorializing the 

decision was entered on July 10, 2006. Klebba filed a notice of 

appeal on July 13, 2006. 

II. 

¶4 Carpenter argues that the appeal is untimely under 

A.R.S. § 16-351(A). Section 16-351(A), which governs challenges 

to nomination petitions, requires that a “notice of appeal shall 

be filed within five days after the decision of the superior 

court in the action.” Carpenter contends that the oral ruling 

in open court on July 6 was the “decision” of the superior 
4

court, and that notice of appeal was therefore filed two days 

late.1

¶5 Klebba, in turn, argues that because Arizona Rule of 

Civil Procedure 58(a) requires that “all judgments shall be in 

writing and signed by a judge,” the July 6 oral ruling did not 

trigger the five-day appeal period. Recognizing that no signed 

order has been entered by the superior court, Klebba asks that 

we treat her notice of appeal as having been prematurely filed 

and entertain the appeal on the merits. 

III. 

¶6 Section 16-351(A) directs the superior court to 

“render a decision” on a challenge to nomination petitions 

“[w]ithin ten days after the filing of the action”2

 and requires 

a notice of appeal to be filed “within five days after the 

decision of the superior court.” The legislative choice of the 

word “decision” rather than “judgment,” however, does not mean 

that Rule 58(a) is inapplicable. Arizona Rule of Civil 

Procedure 54(a) defines the term “judgment” broadly, to include 

 

1

 “[T]he five days allowed to appeal a decision in a 

challenge to the nomination of a candidate includes weekends and 

holidays.” Bohart v. Hanna, __ Ariz. __, __ ¶ 7, __ P.3d __, __ 

(2006). 

2

 “[T]he ten day requirement for action by the superior court 

is directory and not mandatory,” Brousseau, 138 Ariz. at 456, 

675 P.2d at 716, but the five day appeal period is mandatory, 

id. (citing Bedard v. Gonzales, 120 Ariz. 19, 583 P.2d 906 

(1978)). 
5

any decree or order “from which an appeal lies.” The 

requirement in Rule 58(a) that “all judgments shall be in 

writing and signed by a judge” therefore applies not only to 

final judgments disposing of all issues between the parties, but 

also to any other orders made appealable by statute.3

¶7 Section 16-351(A) expressly provides that the 

“decision” of the superior court in a case involving nomination 

petitions is “appealable” to this Court. Therefore, the 

“decision” in this case is also a “judgment” as defined in Rule 

54(a).4 Rule 58(a) thus requires that the decision be in 

 

3

 The general appeals statute, A.R.S. § 12-2101 (2003), 

contains numerous provisions providing for appeals from 

interlocutory “orders.” For example, A.R.S. § 12-2101(C) 

provides for appeal of “any special order made after final 

judgment”; § 12-2101(F)(2) permits appeal from an order granting 

or denying an injunction; § 12-2101(F)(3) permits appeal from an 

order that dissolves or refuses to dissolve an attachment or 

garnishment. Our cases have interpreted Rule 58(a) to require 

that such appealable “orders” be in writing and signed by a 

judge. See, e.g., Eaton Fruit Co. v. Cal. Spray-Chem. Corp., 

102 Ariz. 129, 130, 426 P.2d 397, 398 (1967) (requiring signed 

writing for appeal of order denying motion for new trial); State 

v. Birmingham, 96 Ariz. 109, 112, 392 P.2d 775, 777 (1964) 

(requiring signed written order for appeal of permanent 

injunction). 

4

 Whether an order is also a “judgment” under Rule 54(a) 

therefore turns on whether the relevant statute provides for 

appeal from that order. See Musa v. Adrian, 130 Ariz. 311, 312, 

636 P.2d 89, 90 (1981) (“[A]bsent a pertinent provision in the 

Arizona Constitution, the right of appeal exists only by 

statute.”). Thus, in Devenir Associates v. City of Phoenix, 

interpreting a statute requiring the tax court to render a 

“decision in writing,” but only allowing an appeal from a final 

“judgment,” we held the decision was not itself an appealable 

judgment. 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991). 
6

writing, signed by the court, and entered before an appeal can 

be taken. 

¶8 We find no evidence that the legislature intended in § 

16-351(A) to depart from the general requirements of Rules 54(a) 

and 58(a) with respect to the form of appealable orders. 

Although the election statutes mandate that challenges to 

nomination petitions be tried and appealed expeditiously, 

requiring that the appealable “decision” be in the form 

specified by Rule 58(a) need not impose any delay.5

 Superior 

courts can and should enter such signed decisions within the 

ten-day limit imposed in § 16-351(A). If the court does not 

immediately enter the written and signed decision on its own 

accord, any party can provide a written decision to the superior 

court for signing and entry within the ten-day period. See 

Howard P. Foley Co. v. Harris, 4 Ariz. App. 294, 296, 419 P.2d 

735, 737 (1967); 1 State Bar of Arizona, Arizona Appellate 

Handbook § 3.3.2.2 (4th ed. 2000). 

______________________________________ 

5

 In Bedard, this Court declined to apply the time-exclusion 

provisions of Arizona Rule of Civil Procedure 6(a) to a 

predecessor statute of § 16-351, because “the time elements in 

the elections statutes [are] to be construed strictly.” 120 

Ariz. at 20, 583 P.2d at 907. In contrast, application of Rule 

58(a) will not affect the time elements in the elections 

statutes. The ten-day statutory period for rendering a decision 

remains applicable; the decision simply must be in the form 

required by Rule 58(a). 
7

IV. 

¶9 We therefore agree with Klebba’s argument that her 

notice of appeal was not late, but rather premature. We 

disagree, however, with Klebba’s suggestion that we should 

nonetheless exercise jurisdiction. We have exercised appellate 

jurisdiction when a signed written order was entered after the 

notice of appeal was filed. See Barassi v. Matison, 130 Ariz. 

418, 420-21, 636 P.2d 1200, 1202-03 (1981). But where no signed 

order has ever been entered, the notice of appeal is simply 

ineffective to confer jurisdiction on an appellate court. Eaton 

Fruit Co. v. Cal. Spray-Chem. Corp., 102 Ariz. 129, 130, 426 

P.2d 397, 398 (1967). 

¶10 In the usual case, we would suspend the appeal in 

order to allow the entry of the requisite signed order in the 

superior court. Id. But such an approach here would be wholly 

inconsistent with the expedited timeframes of the elections 

statutes. Section 16-351(A) directs that the decision be made 

by the superior court within ten days of the filing of the 

action and requires that an appeal be filed within five days 

thereafter. The statute thus places the burden to act with 

celerity not only on the superior court, but also on the party 

challenging nomination petitions. By failing to obtain a 

written and signed decision within the statutory period, Klebba 

has made it impossible for us to exercise appellate review in a 
8

timely fashion. We therefore decline to suspend the appeal and 

remand, and instead dismiss the appeal for lack of jurisdiction. 

 __________________________________ 

 Andrew D. Hurwitz, Justice 

CONCURRING: 

_______________________________________ 

Ruth V. McGregor, Chief Justice 

_______________________________________ 

W. Scott Bales, Justice