Forszt v. Rodriguez, 2 CA-CV 2005-0216.

CourtCourt of Appeals of Arizona
Citation130 P.3d 538,212 Ariz. 263
Docket NumberNo. 2 CA-CV 2005-0216.,2 CA-CV 2005-0216.
PartiesGregg FORSZT and Vestar Arizona XLI, L.L.C., Plaintiffs/Appellants/Cross-Appellees, v. F. Ann RODRIGUEZ, Pima County Recorder, Defendant/Appellee/Cross-Appellant, and Stop O.V. Outrageous Giveaways, an Arizona political committee, Intervenor/Cross-Appellant.
Decision Date15 February 2006

Lewis and Roca LLP by Susan M. Freeman, John N. Iurino, and John C. Hinderaker, Tucson, Attorneys for Plaintiffs/Appellants/Cross-Appellees.

Barbara LaWall, Pima County Attorney by Karen Friar and Christopher Straub, Tucson, Attorneys for Defendant/Appellee/Cross-Appellant.

Stinson Morrison Hecker LLP by Jeffrey J. Goulder and James E. Holland, Jr., Phoenix, Attorneys for Intervenor/Cross-Appellant.


HOWARD, Presiding Judge.

¶ 1 Plaintiffs/appellants Gregg Forszt and Vestar Arizona, XLI, L.L.C., appeal from the trial court's denial of a writ of mandamus and declaratory judgment compelling defendant/appellee F. Ann Rodriguez, the Pima County Recorder, to disqualify the signature sheets filed by intervenor Stop O.V. Outrageous Giveaways (SOVOG) requesting a referendum election in the Town of Oro Valley. Because we conclude the trial court correctly denied the relief requested, we affirm its ruling.1

¶ 2 The facts relevant to this appeal are not in dispute. On April 7, 2004, the Town of Oro Valley adopted an ordinance that authorized it to enter into an economic development agreement with Vestar. The agreement provided that Vestar would develop a shopping center on land it owned in Oro Valley. In exchange, Oro Valley would share with Vestar a portion of the sales tax revenues collected from the shopping center. SOVOG sought to challenge the ordinance by referendum and collected over 1,200 signatures on 118 signature sheets. SOVOG circulated the signature sheets with a copy of the ordinance attached while it was collecting these signatures, but removed the ordinance from the signature sheets before submitting the completed referendum petition to the Oro Valley town clerk. The clerk refused to accept the petition for filing on the ground that the ordinance was an administrative rather than a legislative act and, therefore, was not subject to referendum.

¶ 3 SOVOG filed a special action petition challenging the town clerk's conclusion that the ordinance was not referable and sought an order requiring the clerk to transmit the petition to the Pima County recorder's office for the verification of signatures (SOVOG I). Vestar intervened in the action and moved for summary judgment against SOVOG. SOVOG filed a cross-motion for summary judgment against Vestar and moved for summary judgment against Oro Valley. The trial court granted Vestar's motion on the basis that the ordinance was an administrative act and, thus, was not referable. On appeal, this court reversed that decision, holding that the ordinance was a legislative act subject to referendum. Stop O.V. Outrageous Giveaways v. Cuvelier, No. 2 CA-CV 2004-0216 (decision order filed Feb. 11, 2005). On remand, the parties to SOVOG I stipulated to a form of judgment, which the trial court subsequently entered. That judgment expressly ordered the town clerk "to accept and transmit" the referendum petition to the Pima County recorder for verification of signatures.

¶ 4 SOVOG again attempted to submit its referendum petition to the town clerk. The clerk notified SOVOG that the petition was incomplete because the ordinance was not attached to the signature sheets as required by A.R.S. § 19-121(A)(3). SOVOG immediately requested permission to reattach the ordinance to the signature sheets. The clerk denied the request and refused to transmit the signature sheets to the recorder.

¶ 5 SOVOG again sought special action relief against the town clerk (SOVOG II). Vestar did not intervene in that proceeding. In its complaint, SOVOG argued that the doctrine of res judicata prevented the town clerk from refusing to transmit the signature sheets. SOVOG also argued that the clerk should have given SOVOG the opportunity to cure the technical defect. The trial court ruled in SOVOG's favor, finding that the town clerk was barred by res judicata from refusing to transmit the petitions. The court declined to reach the issue of whether SOVOG had cured or should have been allowed to cure any defect. The town clerk did not appeal the court's ruling.

¶ 6 In compliance with the trial court's order in SOVOG II, the town clerk transmitted a sample of the signed petitions to the Pima County recorder. See A.R.S. § 19-121.01(B) and (C). Vestar independently wrote to the Pima County recorder, asking her to disqualify SOVOG's referendum petition pursuant to her authority under § 19-121.01(A)(1)(a) because the signature sheets had not been filed with the clerk with the ordinance attached. The Pima County recorder responded that, in conformity with statutory procedure, she had only received a copy of "the front page" of the sample signature sheets and, therefore, never possessed, nor would ever possess, the materials from which she could disqualify the referendum petition on that ground. The recorder verified that the referendum petition contained sufficient valid signatures for an election.

¶ 7 Forszt and Vestar then filed this action, seeking a writ of mandamus and declaratory judgment against the Pima County recorder to compel her to disqualify the signature sheets (SOVOG III). Forszt had not been a named party in any of the previous lawsuits concerning this issue. SOVOG intervened and opposed the request on the following grounds: (1) the signatures were still valid, notwithstanding the failure to attach the ordinance when filed, because the ordinance had been properly attached when the petitions had been circulated; (2) that the Pima County recorder did not have statutory authority to disqualify the signatures based on their condition at the time of filing with the town clerk; (3) under the doctrine of res judicata, the judgment in SOVOG I barred Forszt and Vestar from receiving the relief they sought; and (4) SOVOG would have cured the defect in a timely fashion had the town clerk allowed it to do so.

¶ 8 Although Forszt and Vestar did not dispute that the petitions had been circulated with the ordinance attached, they maintained that the failure to file the petitions in that form required that the Pima County recorder declare all signatures invalid. The trial court denied relief, finding that SOVOG had rebutted the presumption of invalidity that had arisen when it submitted the petition without copies of the ordinance attached and that equitable considerations weighed in favor of allowing the petition to be "placed before the voters." This appeal followed.


¶ 9 Forszt and Vestar first argue that the trial court erred by finding that SOVOG had restored the presumption of validity of the signature sheets. "Because election contests are statutory proceedings, we evaluate appellants' argument by considering the applicable statutory scheme. We resolve questions of law involving statutory construction de novo." Open Primary Elections Now v. Bayless, 193 Ariz. 43, ¶ 9, 969 P.2d 649, 652 (1998). We may affirm the trial court's ruling if it is correct for any reason apparent in the record. See Washburn v. Pima County, 206 Ariz. 571, ¶ 7, 81 P.3d 1030, 1034 (App.2003). And we review the denial of a writ of mandamus for an abuse of discretion. Garcia v. City of South Tucson, 135 Ariz. 604, 606, 663 P.2d 596, 598 (App. 1983).

¶ 10 Arizona recognizes a strong public policy favoring the powers of initiative and referendum. W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991); Pioneer Trust Co. of Ariz. v. Pima County, 168 Ariz. 61, 66, 811 P.2d 22, 27 (1991). But, because the referendum process, as distinguished from the initiative process, permits a minority to challenge and delay the effective date of legislation already passed by the voters' elected representatives, our supreme court has required referendum proponents to strictly comply with applicable constitutional and statutory provisions governing that process. W. Devcor, 168 Ariz. at 429, 814 P.2d at 770; Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 49, 653 P.2d 694, 697 (1982); see also Feldmeier v. Watson, 211 Ariz. 444, ¶¶ 14-15, 123 P.3d 180, 183-84 (2005).

¶ 11 Nonetheless, proponents' failure to strictly comply with a procedural statutory requirement does not always necessitate that the referendum petition be declared void. In Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5, 503 P.2d 951, 953 (1972), our supreme court noted the limited permissible scope of statutory referendum requirements: "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." (Emphasis added.) The court held that the omission of a required avowal in a circulator's affidavit that the circulators were qualified electors did not render all the attached signatures "null and void," but merely destroyed their presumption of validity. Id. And, although the court had previously concluded that the avowal in question was a valid statutory requirement, it held that the presumption could be reinstated "on proof that the circulators were in fact qualified electors." Id.; see also W. Devcor, 168 Ariz. at 429-31, 814 P.2d at 770-72 (acknowledging that defect in affidavit attached to referendum petition did not render signatures null and void and that presumption of validity could be restored with proper showing); Homebuilders Ass'n of Cent. Ariz. v. City of Scottsdale, 186 Ariz. 642, 649, 925 P.2d 1359, 1366 (App.1996) (some statutory referendum requirements are not strictly construed).

¶ 12 The legislature has adopted an approach to technical defects very...

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