This is an appeal from a judgment of the lower court ordering that the name of Roy R. Carson, a candidate for Judge of the Superior Court of Maricopa County, Division 20, be placed on the right-hand side of the ballot in a column at the right of the party columns, but parallel to the other judicial candidates bearing the heading in bold-faced type "Other Candidates".
We are called upon to determine whether the name of a judicial candidate who has qualified for a position upon the general election ballot pursuant to 16-601 A.R.S., must be placed on that ballot pursuant to Section 16-844, subsec. E, A.R.S., or 16-844, subsec. B, A.R.S.
The necessary facts for a determination of this matter on appeal are as follows: Appellant, Roy R. Carson, did not circulate nominating petitions to have his name placed on the primary election ballot and was not nominated by "write-in" for the
Thereafter, appellee, the Honorable William H. Gooding, Judge of the Superior Court of Maricopa County, Division 20, and candidate for that office in the general election by reason of nomination in the primary election, petitioned for a writ of mandamus to compel the respondent Maricopa County Board of Supervisors and John Burke, Maricopa County Election Director, to place the name of the appellant, Roy R. Carson, upon the general election ballot pursuant to Section 16-844, subsec. E, A.R.S. and not under 16-844, subsec. B, A.R.S.
On 5 October, 1966, the Judge of the court below signed an order which reads in part as follows:
Appellant immediately appealed and we granted a motion for accelerated hearing of the appeal because of the importance of the question, and because the matter would be moot once the general election was held or the time for the starting of absentee balloting had passed. Rapier v. Superior Court, 97 Ariz. 153, 398 P.2d 112 (1964); Board of Supervisors of Maricopa County v. Superior Court, 4 Ariz.App. 110, 417 P.2d 744 (1966).
Article 6, Section 12 of the Constitution of the State of Arizona, A.R.S., reads in part as follows:
Section 16-844 A.R.S. reads in part as follows:
By general rule, the statute will be construed as a whole, State ex rel. Church v. Arizona Corporation Commission, 94 Ariz. 107,
It is contended by the appellee that 16-601 A.R.S. is the specific statute providing a specified method by which a candidate may be qualified for general election and that Section 16-844, subsec. E, A.R.S., applies to all 16-601 A.R.S. candidates including judicial candidates. Appellee therefore contends that appellant's name may not be placed with the other judicial candidates on the general election ballot, but must be placed to the right and above the party columns under the designation "Other Candidates". With this position we cannot agree.
We feel that Section 16-844, subsec. B provides the specific manner in which candidates for Judge of the Superior Court are to be placed upon the general election ballot. This section when read together with the Arizona Constitution, op. cit., makes it clear that "all" candidates for Judge of the Superior Court are to be placed in a single line at the top of the election ballot "without partisan or other designation" (emphasis ours). Once the appellant has become a qualified candidate for Judge of the Superior Court in the general election, he is entitled to the same treatment as every other candidate for the same office. To set his name to the right and to the side of all other judicial candidates, would, we believe, not only treat him differently but tend to astigmatize his name on the ballot, and indicate to the voter that he is not a "regular" judicial candidate, but an "Other Candidate" for the office. Our Supreme Court has stated:
Were it necessary to interpret the Arizona statute (16-844) to require that appellant's name be set off to the side in a separate category, apart and isolated from all other candidates for judicial office, we would be compelled by Kautenburger v. Jackson, supra, to declare the statute unconstitutional. We are not, however, required to do this. Construing the statute in a manner to uphold its constitutionality, when a candidate has qualified under the provisions of 16-601 A.R.S. to have his name on the general election ballot, we are able to apply 16-844, subsec. B to judicial candidates and 16-844, subsec. E to non-judicial candidates and at the same time give effect to what we feel to have been the intent of the legislature in enacting 16-844, subsecs. B and E, A.R.S.
We therefore hold that once a candidate for a judicial office has been qualified to have his name placed upon the general election ballot, that his name shall be placed on the ballot in the same manner provided for all other judicial candidates,
The judgment of the lower court is reversed.
DONOFRIO, J., and PORTER MURRY, Judge of the Superior Court, concur.
NOTE: Chief Judge HENRY S. STEVENS having requested that he be relieved from consideration of this matter, Judge PORTER MURRY was called to sit in his stead and participate in the determination of this decision.