Wennerstrom v. City of Mesa

• Decision Date: 24 October 1991
• Docket Number: No. CV-91-0068-AP,CV-91-0068-AP
• Citation: 169 Ariz. 485,821 P.2d 146
• Parties: Marilynn L. WENNERSTROM, Plaintiff/Appellant, v. CITY OF MESA, Arizona; Barbara Hogue, Mesa City Clerk, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 146

821 P.2d 146

169 Ariz. 485

Marilynn L. WENNERSTROM, Plaintiff/Appellant, v. CITY OF MESA, Arizona; Barbara Hogue, Mesa City Clerk, Defendants/Appellees.

No. CV-91-0068-AP.

Supreme Court of Arizona, In Banc.

Oct. 24, 1991.

Reconsideration Denied Dec. 17, 1991. ^*

[169 Ariz. 486] Meyer, Hendricks, Victor, Osborn & Maledon by Bruce E. Meyerson, Mary E. Berkheiser, Ronald R. Gallegos, Phoenix, for plaintiff, appellant.

Neal J. Beets, Mesa City Atty., Mesa, for defendants, appellees.

Shelley & Bethea by J. LaMar Shelley, Mesa, for amicus curiae League of Ariz. Cities and Towns.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

Marilynn Wennerstrom (plaintiff) sought to compel the City of Mesa (City) and the Mesa City Clerk (Clerk) to continue processing several referendum petitions. She appeals the trial court's denial of her request. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 19-122(C) and 19-121.03. ¹

FACTS

On March 9, 1987, the Mesa City Council (Council) passed a resolution calling for a bond election. At that election, held on April 28, 1987, the Mesa electorate approved the City's request for authorization to issue and sell $30 million of general obligation bonds for the purpose of improving the City's streets and highways.

On September 17, 1990, the Council passed a resolution "conceptually approving" the widening of a portion of Country Club Drive from five to seven lanes "with alignment as indicated by staff." Country Club Drive is a north-south roadway running through Mesa. It is also part of State Route 87.

Shortly thereafter, plaintiff applied to the Clerk for a referendum number and received number 90-02. After obtaining signatures, plaintiff delivered the 90-02 referendum petitions to the office of the Clerk, Barbara Hogue, on October 16 and 17, 1990. Under A.R.S. §§ 19-121.01 and -141, the Clerk's duty upon receipt is to count the signatures within 48 hours and issue a temporary receipt if the number of signatures equals or exceeds the constitutionally-required number. The Clerk issued a temporary receipt.

A.R.S. §§ 19-121.02(A) and -141(A) direct the Clerk, after issuing a temporary receipt, to select and forward a random sample of 5% of the signatures to the county recorder for verification. Instead, the Clerk returned the petitions to plaintiff's residence with a letter signed by her and the City Attorney stating that no "certification" of the signatures would be sought because the Council's conceptual approval of the street widening was not legislation and, therefore, not subject to referendum. Plaintiff immediately filed a complaint in the superior court seeking an order to compel the Clerk and the City to continue processing the petitions. See A.R.S. § 19-122(A).

A few weeks later, on November 5, 1990, the Council passed two additional resolutions concerning Country Club Drive. The first approved a project providing for "the alignment and the improvement of Country Club Drive from Broadway to a point north of McKellips Road," and "the improvement of McKellips Road from Country Club Drive west to the future intersection with the proposed Red Mountain Freeway" (the Project). This resolution also authorized Mesa to acquire rights-of-way for these improvements. The second resolution authorized the City Manager to execute an intergovernmental agreement with the state to share the cost of the Project.

On December 4, 1990, a coalition of Mesa citizens called Stop Over Spending (S.O.S.) submitted two separate sets of referendum petitions to the Clerk's office. The first set, bearing referendum number 90-03, sought to refer the November 5, 1990, resolution that approved the Project. The second set, bearing referendum number 90-04, sought to refer the resolution that authorized the City Manager to execute an intergovernmental agreement with the state. The Clerk issued a receipt indicating that she had received the 90-03 and 90-04 referendum petitions.

On December 6, 1990, plaintiff, who was a member of S.O.S., together with other representatives of S.O.S., visited the Clerk's office, apparently to obtain a temporary receipt. Instead, they received a letter from the Clerk and the City Attorney stating that the 90-03 and 90-04 petitions would not be processed because the resolutions involved were not subject to referendum for the same reasons previously outlined in their October 18, 1990 letter to the plaintiff. Plaintiff then amended her complaint to include allegations concerning the City's inaction with respect to the 90-03 and 90-04 referendum petitions. The amended complaint thus sought an order compelling a referendum on three resolutions: (1) the conceptual approval of September 17, 1990; (2) the Project approval of November 5, 1990; and (3) the November 5, 1990, authorization for the City Manager to execute an intergovernmental agreement to share the Project's cost.

The trial court held that the three Council resolutions were not subject to referendum because they were not legislative actions. Plaintiff appealed the trial court's ruling concerning the September 17 conceptual approval resolution and the November 5 Project approval resolution, but did not appeal the trial court's ruling on the intergovernmental agreement resolution.

We set an accelerated briefing and argument schedule on this appeal and heard oral argument on April 12, 1991. On May 7, 1991, we issued an order affirming the trial court decision and stating that an opinion would follow. This is that opinion.

QUESTION PRESENTED

Whether the Mesa City Council's resolution of September 17 (conceptual approval) or the resolution of November 5, 1990 (Project approval) were legislative acts subject to referendum.

DISCUSSION

I. The Scope of the Referendum Power

The Arizona Constitution reserves the powers of initiative and referendum to the people. Ariz. Const. art. 4, pt. 1, § 1. The initiative allows qualified electors to propose legislation. Id. § 1(2). The constitutional referendum power has two forms. The first form permits the legislature to refer a legislative enactment to a popular vote. Id. § 1(3). The second form, and the one we consider here, permits qualified electors to circulate petitions and refer to a popular vote legislation which has been enacted by their elected representatives. Id.

The Arizona Constitution also reserves the referendum power to the qualified electors of municipal corporations:

The powers of the Initiative and the Referendum are hereby further reserved to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which such incorporated cities, towns, and counties are or shall be empowered by general laws to legislate. Such incorporated cities, towns, and counties may prescribe the manner of exercising said powers within the restrictions of general laws. Under the power of the Initiative fifteen per centum of the qualified electors may propose measures on such local, city, town or county matters, and ten per centum of the electors may propose the Referendum on legislation enacted within and by such city, town, or county.

Ariz. Const. art. 4, pt. 1, § 1(8) (emphasis added).

In the trial court, plaintiff, acting pro per, initially argued that all city council actions are subject to referendum. Municipal corporations, however, act in several capacities: legislative, executive, administrative, and quasi-judicial. See 5 E. McQuillin, The Law of Municipal Corporations § 16.55 (3d rev. ed. 1989). The sound rationale for limiting the referendum to legislative actions is that to permit referenda on executive and administrative actions would hamper the efficient administration of local governments. See, e.g., Witcher v. Canon City, 716 P.2d 445, 449 (Colo.1986). Moreover, in referendum cases, "strict compliance with constitutional and statutory requirements" is required. Western Devcor, Inc. v. Massie, 168 Ariz. 426, 430, 814 P.2d 767, 770 (1991). The trial court correctly concluded that, under the Arizona Constitution, only the Council's legislative actions were subject to referendum. On appeal, plaintiff concedes, as she must, that the Council's actions are subject to referendum only if they are legislative. See Ariz. Const. art. 4, pt. 1, § 1(8). Accordingly, we now examine the Council's two challenged actions to determine whether they are legislative in character.

II. Distinguishing Between Legislative and Administrative Acts

Although this court has previously discussed art. 4, pt. 1, § 1(8), see, e.g., City of Globe v. Willis, 16 Ariz. 378, 146 P. 544 (1915), we have not extensively focused on the distinction between legislative and administrative acts. In Williams v. Parrack, 83 Ariz. 227, 231, 319 P.2d 989, 991 (1957), opponents of an initiative that sought to enact a comprehensive scheme of employee classification, hours, salaries, and salary increases for the City's fire department argued that the proposed measure was not a proper subject for initiative because it was "administrative." Although the text of the proposed ordinance was not before the court, the court held that the title of the ordinance clearly indicated that it was legislative. ² Id. Thus, in Williams we implicitly recognized the distinction between legislative and administrative acts. We did not articulate, however, any test for distinguishing between them.

In Saggio v. Connelly, 147 Ariz. 240, 240, 709 P.2d 874 (1985), the Apache Junction City Clerk refused to place an initiative measure on the ballot for a general election. We concluded that the proposed measure was essentially "a petition demanding an election within the city at which the electorate would be asked to decide whether the city should be dissolved." Id. at 241, 709 P.2d at 875. Noting that legislation must be a "definite, specific act or resolution," we held that the measure was not legislation because it did not "enact anything." Id. Thus, Saggio...