Arrett v. Bower

• Decision Date: 12 March 2015
• Docket Number: No. 2 CA–CV 2015–0017.,2 CA–CV 2015–0017.
• Citation: 708 Ariz. Adv. Rep. 36,345 P.3d 129,237 Ariz. 74
• Parties: Debra ARRETT and Shirley Lamonna, Plaintiffs/Appellants, v. Julie K. BOWER, Oro Valley Town Clerk, Defendant/Appellee, Michele Reagan, Arizona Secretary of State, Intervenor.
• Court: Arizona Court of Appeals

237 Ariz. 74

345 P.3d 129

708 Ariz. Adv. Rep. 36

Debra ARRETT and Shirley Lamonna, Plaintiffs/Appellants

v.Julie K. BOWER, Oro Valley Town Clerk, Defendant/Appellee, Michele Reagan, Arizona Secretary of State, Intervenor.

No. 2 CA–CV 2015–0017.

Court of Appeals of Arizona, Division 2.

March 12, 2015.

Risner & Graham By William J. Risner, Tucson, Counsel for Plaintiffs/Appellants.

Curtis, Goodwin, Sullivan, Udall & Schwab, P.L.C. By Kelly Y. Schwab and Patricia E. Ronan, Tobin C. Sidles, Director of Town of Oro Valley Legal Services, Oro Valley, Phoenix, Counsel for Defendant/Appellee.

Mark Brnovich, Arizona Attorney General, James Driscoll–MacEachron, Assistant Attorney General, Phoenix, Counsel for Intervenor.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, Presiding Judge:

¶ 1 In this expedited election appeal, we are asked to decide whether Julie K. Bower, the Clerk of the Town of Oro Valley, correctly rejected all signature sheets of a referendum petition filed by appellant Shirley Lamonna, for lack of compliance with A.R.S. § 19–111(B), and whether the statute and its enforcement here is constitutional. We conclude Lamonna failed to strictly comply with § 19–111(B), which requires the serial number issued for the referendum petition to appear on both sides of each petition sheet, and application of this and related statutes in this case is constitutional. Bower therefore acted correctly and we affirm the trial court's denial of Appellants' petition for a writ of mandamus.

Factual and Procedural Background

¶ 2 The material facts are undisputed. On December 17, 2014, the council of the Town of Oro Valley (the Town) and its mayor adopted Resolution No. (R)14–66 (the Resolution), approving the Town's acquisition of the El Conquistador Country Club, Golf, and Tennis facilities (the Property) for one million dollars, for the purpose of converting the Property into a community center.¹ The Resolution authorizes the Town's manager “to take such steps as are necessary to acquire” the Property. On December 18, 2014, Lamonna, as chairperson of “T.O.O.T.H. in OV,” a political committee that opposed the Resolution, registered the committee and filed an application for a referendum petition serial number. Bower issued Lamonna serial number OVREF 14–01.

¶ 3 On January 15, 2015, Lamonna returned 249 petition sheets to the clerk's office, then completed and signed a receipt, which Bower also signed. Lamonna learned the petition sheets were defective because the Resolution number was used rather than the assigned serial number as required by § 19–111(B). See also A.R.S. § 19–101(B). Shortly thereafter, Bower rejected all sheets for OVREF 14–01 because none of them included the serial number. On January 23, 2015, Arrett² and Lamonna filed a statutory special action pursuant to A.R.S. § 19–122(A), seeking a writ of mandamus compelling Bower to accept the petition sheets Lamonna had submitted as part of OVREF 14–01, and to transmit the petitions to the Pima County Recorder for verification and further processing for placement of the referendum on the ballot for the next election. See A.R.S. § 19–121.01.

¶ 4 Bower filed an answer to the complaint and a motion to dismiss/motion for summary judgment. The trial court set the matter for an order to show cause hearing on February 3, 2015. After Bower and Lamonna testified at that hearing, the parties submitted the matter to the court based on their testimony, the pleadings, memoranda, and exhibits. The court denied the motion to dismiss at the end of the hearing but took the matter under advisement, issuing its order denying the request for a writ of mandamus the following day. The court found the petition sheets did not comply with § 19–111(B), Bower had acted in accordance with the law in rejecting them, and Arrett and Lamonna had not sustained their burden of establishing they were entitled to special-action relief. The court denied Appellants' request to stay its order.

¶ 5 Appellants' accelerated appeal pursuant to Rule 10, Ariz. R. Civ.App. P., followed. They filed a motion in this court asking us to stay the trial court's order and to enjoin the Town from further negotiations for or finalization of its purchase of the property, which was expected to occur sometime in March. We denied the request for a stay.

Discussion

¶ 6 Appellants contend the petition sheets complied with all requirements provided in article IV, pt. 1, § 1, of the Arizona Constitution, particularly § 1 (9). Characterizing § 19–111(B) as “non-substantive,” they assert the “undisputed error” did not invalidate the sheets. Appellants argue § 19–111(B) is not among the “helpful” kinds of limited provisions the legislature may enact to facilitate the important constitutional right of the electorate to initiative and referendum, and is, in fact, unconstitutional. They also challenge the application of a strict compliance standard to referenda, suggesting the statute is vague on its face or as applied here.³

¶ 7 “We review a trial court's decision on a request for injunctive or mandamus relief under § 19–122 for an abuse of discretion.” Parker v. City of Tucson, 233 Ariz. 422, ¶ 11, 314 P.3d 100, 106 (App.2013). An abuse of discretion includes an error in the interpretation or application of the law. See id. This appeal raises questions regarding the interpretation and application of election statutes and Arizona's constitution; we review these questions of law de novo. Pedersen v. Bennett, 230 Ariz. 556, ¶ 6, 288 P.3d 760, 762 (2012).

¶ 8 “Our primary purpose in interpreting a statute is to give effect to the legislature's intent.” Parker, 233 Ariz. 422, ¶ 12, 314 P.3d at 106. A statute's plain language is the best reflection of the legislature's intent; therefore, when the language “is clear and unambiguous we need look no further than the statute's terms to determine its meaning and do not employ other principles of statutory construction.” Id. These principles of construction apply to the interpretation of Arizona's constitution, requiring us to interpret its provisions “to effectuate the intent of those who framed [them].” Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994) ; see also Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R., 228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App.2011) (if language of constitutional provision is “unambiguous, we generally must follow the text as written”).

¶ 9 The Arizona Constitution reserves the power of initiative and referendum to the qualified electors of cities, towns, and counties. Ariz. Const. art. IV, pt. 1, § 1 (8). This court recognizes the importance of and “respect[s] the citizens' constitutional right to challenge a government's legislative actions by referring a duly enacted measure to the ballot for a vote.” Sklar v. Town of Fountain Hills, 220 Ariz. 449, ¶ 8, 207 P.3d 702, 705 (App.2008). Indeed, the courts of this state “have long recognized the strong public policy favoring the initiative and referendum.” Van Riper v. Threadgill, 183 Ariz. 580, 582, 905 P.2d 589, 591 (App.1995), citing W. Devcor, Inc. v. City of Scottsdale,

168 Ariz. 426, 428, 814 P.2d 767, 769 (1991). The right of initiative and referendum has been “ characterized ... as ‘vital,’ and one so important to the authors of our constitution that they included sufficient machinery in the constitution to make the right self-executing.” Id., quoting Crozier v. Frohmiller, 65 Ariz. 296, 298, 179 P.2d 445, 447 (1947).

¶ 10 Arizona's constitution includes certain requirements as to the form and contents of initiative and referendum petitions. Ariz. Const. art. IV, pt. 1, § 1 (9). As Appellants correctly point out, article IV, part 1, is self-executing. See Ariz. Const. art. IV, pt. 1, § 1 (16). But as they concede, the fact that the constitutional provisions are self-executing does not preclude the legislature from enacting laws pertaining to referenda and initiatives. Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5, 503 P.2d 951, 953 (1972). Indeed, the constitution expressly permits localities to “prescribe the manner of exercising said powers,” and to supplement the provisions of the constitution as long as they do so “within the restrictions of general laws.” See Ariz. Const. art. IV, pt. 1, § 1 (8). Our courts repeatedly have recognized the power of the legislature to regulate the referendum process. See, e.g., Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 49, 653 P.2d 694, 697 (1982) ; Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953 ; Lawrence v. Jones, 199 Ariz. 446, ¶¶ 7–9, 18 P.3d 1245, 1248–49 (App.2001). “If such legislation does not unreasonably hinder or restrict the constitutional provision and if the legislation reasonably supplements the constitutional purpose, then the legislation may stand.” Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953 (upholding validity of statute requiring circulators of referendum petitions be qualified electors, even absent constitutional requirement).

¶ 11 The legislature initially adopted laws relating to initiative and referendum in 1953, “prescribing the form, verification and method of circulation of petitions.” 1953 Ariz. Sess. Laws, ch. 82. The stated purpose of these laws was to “further implement[ ] the provisions of the Constitution,” prevent fraud and abuse of the process, and “safeguard to the people their right of initiative and referendum in its original concept.” 1953 Ariz. Sess. Laws, ch. 82, § 1. In 1989, the legislature amended existing statutes and enacted new provisions relating to initiative, referendum, and recall elections. 1989 Ariz. Sess. Laws, ch. 10. It expressly stated the purpose of this legislation:

The right of initiative and referendum shall be broadly construed. If there is doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an

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