City of Flagstaff v. Mangum

• Decision Date: 31 May 1990
• Docket Number: No. CV-89-0420-SA,CV-89-0420-SA
• Citation: City of Flagstaff v. Mangum, 164 Ariz. 395, 793 P.2d 548 (Ariz. 1990)
• Parties: CITY OF FLAGSTAFF, a municipal corporation, and Linda Butler, in her capacity as City Clerk of the City of Flagstaff, Petitioners, v. Hon. Richard K. MANGUM, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino; and Jacque Sullivan and K. Joseph Nackard, as taxpayers and electors on behalf of Citizens for Responsible Spending, a campaign committee, real parties in interest, Respondents. Jacque SULLIVAN and K. Joseph Nackard, taxpaying electors of the City of Flagstaff, for themselves and on behalf of the Citizens for Responsible Spending, a campaign committee, Petitioners, v. Hon. Richard K. MANGUM, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino; City of Flagstaff, a municipal corporation and political subdivision of the State of Arizona; and Linda Butler, City Clerk for the City of Flagstaff, acting in her official capacity, the real parties in interest, Respondents.
• Court: Arizona Supreme Court

Page 548

793 P.2d 548

164 Ariz. 395

CITY OF FLAGSTAFF, a municipal corporation, and Linda Butler, in her capacity as City Clerk of the City of Flagstaff, Petitioners, v. Hon. Richard K. MANGUM, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino; and Jacque Sullivan and K. Joseph Nackard, as taxpayers and electors on behalf of Citizens for Responsible Spending, a campaign committee, real parties in interest, Respondents.

Jacque SULLIVAN and K. Joseph Nackard, taxpaying electors of the City of Flagstaff, for themselves and on behalf of the Citizens for Responsible Spending, a campaign committee, Petitioners, v. Hon. Richard K. MANGUM, Judge of the Superior Court of the State of Arizona, In and For the County of Coconino; City of Flagstaff, a municipal corporation and political subdivision of the State of Arizona; and Linda Butler, City Clerk for the City of Flagstaff, acting in her official capacity, the real parties in interest, Respondents.

No. CV-89-0420-SA.

Supreme Court of Arizona, In Banc.

May 31, 1990.

As Modified on Grant of Reconsideration July 5, 1990.

[164 Ariz. 396] Joseph R. Bertoldo, Flagstaff City Atty., and Hufford, Horstman, McCullough & Mongini, P.C. by Patrice M. Horstman, Flagstaff, for City of Flagstaff and Linda Butler.

Mangum, Wall, Stoops & Warden by Paul L. Brinkmann and Robert W. Warden, Flagstaff, for Jacque Sullivan and K. Joseph Nackard on behalf of Citizens for Responsible Spending.

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

OPINION

MOELLER, Justice.

JURISDICTION

These two special actions present questions concerning the timeliness of the filing of local initiative petitions and the method of calculating the number of valid signatures on such petitions. The trial court found the petitions to be timely filed, but lacking sufficient valid signatures to require placement on the ballot. Relief by appeal is inadequate because normal appellate procedure would result in delay beyond the scheduled election. See King v. Superior Court, 138 Ariz. 147, 149-50, 673 P.2d 787, 789-90 (1983). The questions presented involve issues of law with statewide significance. See Summerfield v. Superior Court, 144 Ariz. 467, 469, 698 P.2d 712, 714 (1985). Therefore, we accepted jurisdiction of the special actions pursuant to Ariz. Const. art. 6, § 5(4), and Rule 1, Ariz.R.P.Sp.Act., 17B A.R.S. We permitted the League of Arizona Cities and Towns to file an amicus curiae brief because the issues in this case are recurring and have been the subject of controversy in cities and towns throughout Arizona. See Rule 7(f), Ariz.R.P.Sp.Act., 17B A.R.S. and Rule 16, Ariz.R.Civ.App.P., 17A A.R.S.

ISSUES PRESENTED

1. In the absence of controlling local law, what is the filing deadline for local initiative petitions?

2. If local initiative petitions are untimely filed as to the targeted election, are they nevertheless valid for a later election?

3. In the absence of controlling local law, does the Arizona Constitution require signatures on initiative petitions of fifteen percent of those who voted for mayor at the last election or fifteen percent of those eligible to vote?

4. What is the proper procedural method for calculating the number of valid signatures on initiative petitions under A.R.S. § 19-121 et seq.?

FACTS

In November 1987, the Flagstaff City Council enacted an ordinance levying a two percent tax on the gross revenues of hotels, motels, campgrounds, bars and restaurants. On August 7, 1989, Jacque Sullivan, on behalf of the Citizens for Responsible Spending (Citizens), obtained an initiative petition seeking to eliminate what has become known as the "bed, board and booze tax."

On November 21, 1989, Citizens tendered the petition to the city clerk for filing and for presentation to the city council pursuant to A.R.S. § 19-143. The city clerk refused to accept and file the petition, stating that the petition was not timely as an initiative petition because it was not filed four months prior to the March 6, 1990 election, as required by Ariz. Const. art. 4, pt. 1, § 1(4). The clerk also rejected the petition as a referendum petition because it was not filed within thirty days after passage of the challenged ordinance as required by A.R.S. § 19-142.

Citizens then filed a special action in superior court, seeking an order compelling the clerk to accept the petition and present it to the council, and to place the initiative measure on the March 6, 1990 ballot. Citizens also sought a ruling that the required fifteen percent of qualified electors be determined by applying the percentage to the number of votes cast in the last mayoral election, rather than to the number of persons qualified to vote.

The trial court held that the petition was timely because, in the absence of a controlling City Charter provision, A.R.S. § 19-143(A) mandated a ninety-day filing deadline. The trial court also held that under Ariz. Const. art. 4, pt. 1, § 1 the required number of signatures was fifteen percent of all persons qualified to vote, not just fifteen percent of those who voted at the last mayoral election. ¹

The City filed a special action with this court seeking review of the timeliness issue. Citizens also filed a special action in this court seeking review of the issue of the required number of signatures. For reasons previously stated, we accepted jurisdiction of both special actions and consolidated them.

Following oral argument, we entered an order finding that the four-month period of Ariz. Const. art. 4, pt. 1, § 1(4) applied. Thus, the initiative petition was untimely filed for the March 6, 1990 election. However, we permitted the trial court to proceed to determine the number of valid signatures submitted. In addition, we asked the parties to brief the question of whether, assuming enough valid signatures were submitted, the initiative proposal should be placed on a later ballot. The trial court completed its determination of the number of valid signatures and the parties submitted their supplemental briefs. This opinion follows our initial order.

DISCUSSION

I. Filing Deadline

Citizens contend the trial court correctly determined that, in the absence of any controlling local provision, A.R.S. § 19-143(A) provides a ninety-day filing deadline preceding the next election. Our analysis of the applicable constitutional and statutory provisions, however, leads us to conclude that the four-month period prescribed in the state constitution controls in this case.

The powers of initiative and referendum as to local matters are reserved to the qualified electors of cities, towns and counties. Ariz. Const. art. 4, pt. 1, § 1(8). These municipalities "may prescribe the manner of exercising said powers within the restrictions of general laws." Id.; see also Maxwell v. Fleming, 64 Ariz. 125, 128, 166 P.2d 831, 833 (1946) (initiative power under Charter must be exercised within limitations imposed by constitution and general laws). Accordingly, we must first examine the general laws of the state to determine whether the state legislature prescribed a filing deadline for local initiative petitions.

Citizens argue that A.R.S. § 19-143(A) provides a filing deadline of ninety days preceding the next election. The statute states:

If an ordinance, charter or amendment to the charter of a city or town is proposed by initiative petition, it shall be filed with the city or town clerk, who shall submit it to the voters of the city or town at the next ensuing election held therein not less than ninety days after it was first presented to the city or town council. The council may enact the ordinance or amendment and refer it to the people or it may enact the ordinance or amendment without referring it to the people, and in that case it is subject to referendum petition as other ordinances. The mayor shall not have power to veto either of such measures.

A.R.S. § 19-143(A).

We read this statute not as a deadline for filing initiative petitions, but as a measure providing in part for a mechanism by which the municipal legislative authority can enact the proposal without the necessity of an election. The statute also designates the person with whom the petitions shall be filed (the clerk) and prevents placement of the measure on the ballot at any election held less than ninety days after the clerk presents it to the council. The section further provides that the city may enact the proposed ordinance or amendment either with or without referral to the voters but precludes mayoral veto. The statute implicitly contemplates that the petition must be presented to the clerk more than ninety days prior to the election.

In contrast to A.R.S. § 19-143(A) dealing with local initiatives, A.R.S. § 19-142(A), dealing with local referenda, provides a clear filing deadline by stating "the petition shall be filed with the city or town clerk within thirty days after passage of the ordinance." Where the legislature uses a term within one statute and excludes it from another, the term usually will not be read into the provision from which it was excluded. See Board of Regents v. Public Safety Ret. Fund Mgr., 160 Ariz. 150, 157, 771 P.2d 880, 887 (Ct.App.1989). Because a filing deadline was specifically included in § 19-142(A) for referendum petitions, but was not specifically included in § 19-143(A) for initiative petitions, we will not read a filing deadline into § 19-143(A).

Finding no filing deadline in A.R.S. § 19-143(A) or other general statutes, we look next to the Charter of the City of Flagstaff which, in turn, refers us back to the constitution and to state laws. The Charter provides:

The provisions of the Constitution and the general laws of the State, as the same now exists or hereafter may be amended, governing the initiative and referendum and recall of elected officers, shall apply to the use thereof in the City.

City of Flagstaff...