Barry v. Alberty

• Citation: 843 P.2d 1279,173 Ariz. 387
• Decision Date: 22 December 1992
• Docket Number: No. 1,CA-CV,1
• Parties: John J. BARRY, Plaintiff-Appellant, v. Phyllis ALBERTY, Town Clerk, Town of Gilbert, Defendant-Appellee. 92-0255.
• Court: Court of Appeals of Arizona

Page 1279

843 P.2d 1279

173 Ariz. 387

John J. BARRY, Plaintiff-Appellant, v. Phyllis ALBERTY, Town Clerk, Town of Gilbert, Defendant-Appellee.

No. 1 CA-CV 92-0255.

Court of Appeals of Arizona Division 1, Department D.

Dec. 22, 1992.

[173 Ariz. 388] Theodore C. Jarvi, Tempe, for plaintiff-appellant.

Martinez & Curtis, P.C. by Jay M. Martinez, Steven B. Bennett, Phoenix, for defendant-appellee.

OPINION

CONTRERAS, Judge.

Appellant John J. Barry appeals from the trial court's judgment dismissing his petition for special action. In the special action petition, Barry asked the trial court for an order compelling the Gilbert Town Clerk ("Appellee" or "Town Clerk") to accept and file a referendum petition. The trial court dismissed the special action petition as untimely because it was not filed within ten days after Appellee refused to accept and file the referendum petition. ¹ We affirm the trial court's judgment.

There are four issues presented on appeal:

1) whether the ten-day period for filing a special action seeking to compel a public officer to accept and file a referendum petition pursuant to A.R.S. section 19-122(A) began to run (a) when the Town Clerk issued a written refusal to accept and file the referendum petition, (b) on the date of the Town Clerk's letter stating the reason for the refusal, or (c) on the date when the person who submitted the petition received the letter;

2) whether Rule 6(a) of the Arizona Rules of Civil Procedure requires that weekends and holidays be excluded when computing the ten-day period;

3) whether Rule 6(e) of the Arizona Rules of Civil Procedure requires that the ten-day period be extended by five additional days because the letter stating the Town Clerk's reason for refusal was sent by mail; and

4) whether the Superior Court abused its discretion in granting Appellee's motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent undisputed facts follow. In 1987, the Town of Gilbert ("Gilbert") held a special election that resulted in a majority of the qualified voters authorizing Gilbert to acquire a portion of the Arizona Public Service ("APS") electric distribution system in Gilbert. Four years later, on December 10, 1991, the Gilbert Town Council considered the feasibility of either acquiring the APS system or approving a settlement agreement between Gilbert and APS whereby Gilbert would abandon the plan to acquire the system. The Council voted 4 to 3 to abandon the acquisition and approved the proposed settlement agreement between Gilbert and APS.

On January 9, 1992, Walter Lowe submitted to the Gilbert Town Clerk the circulated referendum petition challenging the approved settlement between Gilbert and APS. On January 20, 1992, the Gilbert Town Clerk refused to accept and file the referendum petition. On that date, the Town Clerk issued a written statement of her reason for refusal, claiming that the proposed referendum challenged an administrative Council action and that administrative actions were not subject to referendum. ² On that same date, the Town Clerk mailed a letter dated January 20, 1992, to Walter Lowe setting forth a written statement for the refusal. A newspaper reporter advised Lowe on January 21, 1992, that the Town Clerk had rejected the referendum petition. Lowe received the Town Clerk's written statement of the reason for the refusal by certified mail on January 22, 1992.

On January 31, 1992, Appellant Barry filed a petition for special action in the Maricopa County Superior Court asking the court to compel the Gilbert Town Clerk to accept and file the referendum petition. ³ There is nothing in the record that indicates, nor does Barry contend, that he was in privity with Walter Lowe or that he was otherwise entitled to individual direct notification by the Town Clerk.

Appellant argues that the trial court abused its discretion in granting Appellee's motion to dismiss. However, we are not considering a matter within the trial court's discretion. The interpretation of a statute is a question of law. Arizona State Bd. v. Keebler, 115 Ariz. 239, 241, 564 P.2d 928, 930 (Ct.App.1977). We are not bound by the trial court's determination of questions of law and may consider the question on a de novo basis. Id.; Chaffin v. Commissioner, 164 Ariz. 474, 476, 793 P.2d 1141, 1143 (Ct.App.1990).

The Arizona Supreme Court has provided the context for our consideration by distinguishing between initiative and referendum measures. See Kromko v. Superior Court, 168 Ariz. 51, 811 P.2d 12 (1991); Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 814 P.2d 767 (1991). The Court has also provided guidelines for construing the statutory language governing referendum measures brought pursuant to Title 19 of the Arizona Revised Statutes. See Western Devcor, 168 Ariz. 426, 814 P.2d 767; Cottonwood Dev. v. Foothills Area Coalition, 134 Ariz. 46, 653 P.2d 694 (1982). Basically, initiative actions provide electors with a means to submit legislation directly to the voters for their approval or rejection. A.R.S. § 19-102. Initiative measures require "substantial" compliance with requirements of the law, but not necessarily "technical" compliance. Kromko, 168 Ariz. at 58, 811 P.2d at 19.

On the other hand, referendum actions provide the electors with a means by which legislation that has already been enacted by elected representatives may be referred to the voters. A.R.S. § 19-101. The Arizona Supreme Court has considered the referendum to be an "extraordinary power ... that permits a minority to hold up the effective date of legislation which may well represent the wishes of the majority." Western Devcor, 168 Ariz. at 428-29, 814 P.2d at 769-70 (quoting Cottonwood Development, 134 Ariz. at 49, 653 P.2d at 697). Consequently, the Court has held that referendum proponents must comply strictly with constitutional and statutory provisions to ensure that the constitutional right of the referendum is not "abused or improperly expanded." Id.; see also Cottonwood Development, 134 Ariz. at 48-49, 653 P.2d at 696-97 (constitutional and statutory provisions relating to power of referendum must be strictly followed). With the foregoing considerations in mind, we are required to construe A.R.S. section 19-122(A) by applying a strict construction standard with respect to the issues on appeal.

COMPUTING THE TEN-DAY PERIOD

Appellant argues that in the present case the ten-day period for filing a petition for special action pursuant to A.R.S. section 19-122(A) began when the referendum proponent received written notice of the reason for the Town Clerk's refusal. Appellee contends that the ten-day period started when she dated the statement of the reason for refusal.

Section 19-122(A) provides:

If the secretary of state refuses to accept and file a petition for the initiative or referendum ... he shall provide the person who submitted the petition ... with a written statement of the reason for refusal. Within ten days after the refusal any citizen may apply to the superior court for a writ of mandamus to compel the secretary of state to file the petition.

A.R.S. § 19-122(A) (emphasis added); see also A.R.S. § 19-141(A) (term "secretary of state" includes the city or town clerk).

In construing section 19-122(A), we follow the fundamental principles of statutory construction and start with a consideration of the language of the statute. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). Because the plain language of section 19-122(A) is clear and unequivocal, we find it determinative. See id.; Jenkins v. First Baptist Church, 166 Ariz. 243, 245, 801 P.2d 478, 480 (Ct.App.1990); Walker v. City of Scottsdale, 163 Ariz. 206, 209, 786 P.2d 1057, 1060 (Ct.App.1989). There is nothing in the language of the statute or the legislative history that supports Appellant's argument that the ten-day period starts when the referendum proponent receives written notice of the reason for the Town Clerk's refusal. There is no nexus between the Town Clerk's statutory obligation to notify the referendum proponent of the reason for refusal and the right of "any citizen" to file a special action challenging the refusal. See A.R.S. § 19-122(A). The ten-day period in which "any citizen" may file a petition for special action seeking to compel the Town Clerk to accept and file the referendum petition is within ten calendar days after the Town Clerk refuses to accept and file the referendum petition. See id. We again point out that in the present case, Appellant would not have received direct personal notice of the reason for the refusal because he was not the referendum proponent. He was only one of many citizens who could file a petition for special action challenging the refusal.

Section 19-122(A) places the burden of determining whether a referendum petition has been accepted or refused on the citizens. Although the statute does not require the Town Clerk to provide public notice of refusal, a written refusal to accept a referendum petition becomes a matter of public record on the date that it is made. In the present case, it is clear that the Town Clerk's decision to refuse the referendum petition was made on January 20, 1992, and that the refusal, along with the reason for such refusal, which was reduced to a written statement, became a matter of public record on January 20, 1992. Moreover, the legislature has specifically provided that other time periods in the referendum context run from the date of "receipt," but it has not included this term in section 19-122(A). See, e.g., A.R.S. § 19-121.02(B) (county recorder must return facsimile signature sheets within ten days after "receiving" them from the clerk); A.R.S. § 19-121.03(B) (any citizen may challenge county recorder's certification within ten days of clerk's "receipt" of it). We are bound by the legislature's decision not to expand the ten-day period provided in section 19-122(A).

The Gilbert...