Hamilton v. Superior Court In and For Maricopa County, CV-87-0150-SA
| Decision Date | 27 May 1987 |
| Docket Number | No. CV-87-0150-SA,CV-87-0150-SA |
| Citation | 154 Ariz. 109,741 P.2d 242 |
| Parties | Ruth HAMILTON, Charles M. Monroe, and Dora Quesada (Citizen Defendants below), Petitioners, v. SUPERIOR COURT for the State of Arizona, In and For the COUNTY OF MARICOPA, Hon. Barry Schneider, a Judge thereof; the City of Phoenix, a body politic (City Defendants below); Marvin Andrews, in his official capacity as Phoenix City Manager, Respondents, The POINTE RESORTS, INC., an Arizona corporation; and Gosnell Development Corporation, an Arizona corporation, Respondents-Real Parties in Interest. |
| Court | Arizona Supreme Court |
Cox and Cox by Z. Simpson Cox, Phoenix, for petitioners.
Roderick G. McDougall, Phoenix City Atty. by Roderick G. McDougall, Larry F. Felix, Phoenix, for respondents City of Phoenix and Andrews.
Gammage & Burnham by Grady Gammage, Jr., Phoenix, for real parties in interest.
Ruth Hamilton, Charles M. Monroe, and Dora Quesada (petitioners) brought a special action 1 to enjoin the City of Phoenix from leasing Phoenix Mountain Preserve land to Gosnell Development Corporation (GDC) without voter approval. On May 5, 1987, we vacated the trial court's grant of summary judgment in favor of the City and GDC, and remanded the case to the trial court to determine the status of the transaction between GDC and the City as of the date an amendment to the City Charter We accepted jurisdiction pursuant to Rule 4, Ariz.R.P.Sp.Act. and Ariz. Const. art. 6, § 5 because, absent judicial intervention, the City is ready to execute a trade and leaseback agreement with GDC, and GDC is ready to begin construction. Petitioners had no equally plain, speedy, and adequate remedy by appeal because any delay would result in irreparable injury to the desert land. In addition, this is a matter of great public interest and concern. See, e.g., King v. Superior Court, 138 Ariz. 147, 149-50, 673 P.2d 787, 789-90 (1983).
[154 Ariz. 110] became effective. We stated in that order that a more detailed opinion would be forthcoming.
The facts we considered relevant to the issues raised are as follows. In November 1985, Phoenix voters adopted a proposition that added a provision to the City Charter:
In no event shall any real property within the City Mountain Preserve be sold, traded or otherwise alienated, redesignated or deleted from the Mountain Preserve except by approval of a majority of the electors voting thereon, provided that Mountain Preserve property may be traded if such trade is approved by the Council by ordinance prior to January 1, 1989 in accordance with the provisions set forth in this Chapter.
On March 26, 1986, the Phoenix Council adopted Ordinance No. S 16367, authorizing the city manager or his designee "to enter into an agreement and execute necessary documents to effect a trade of 29 acres of City-owned land located at the southeast edge of South Mountain Park ... for 34 acres of land owned by Gosnell Development Corporation." The ordinance was conditioned on the requirement that GDC would then donate the 29 acres back to Phoenix and the City would execute a 35-year lease granting GDC the right to use the land for five holes of a public golf course. The lease would give GDC an option to renew for another thirty-five years. No form of lease is attached to the ordinance. No rental payments are specified by the ordinance. No legal description is given for the land involved.
The day the Council adopted the ordinance, opponents began circulating initiative petitions to close the "window" whereby the Council could approve trades without voter approval until January 1, 1989. The petition drive was successful and on December 9, 1986, voters overwhelmingly passed the following initiative:
AN INITIATIVE MEASURE TO PREVENT SALE, TRADE, ALIENATION, REDESIGNATION, LEASE OR OTHER DELETION OR REMOVAL OF ANY CITY MOUNTAIN PRESERVE LAND WITHOUT APPROVAL OF A MAJORITY OF ELECTORS VOTING THEREON.
Notwithstanding any other provision of the Charter of the City of Phoenix, no land within any City Mountain Preserve, as that term is defined in Chapter 26 of the Charter of the City of Phoenix, shall be sold, traded, alienated, redesignated, leased, or otherwise deleted or removed from the Mountain Preserve except by approval of a majority of electors voting thereon.
The Charter amendment became law on January 14, 1987, and will be referred to as the 1987 initiative.
Petitioners contended that the 1987 initiative prohibits the City from consummating the land trade with GDC because the deal was not completed on January 14, 1987. See In re Dos Cabezas Power District v. Arizona Public Service Co., 17 Ariz.App. 414, 498 P.2d 488 (1972). On the other hand, GDC argued that the step required for trade approval in accordance with the Charter had been completed on March 26, 1986--the date of the ordinance authorizing the trade--and the deal could not be retroactively invalidated by the 1987 initiative passed nine months later. Agreeing with GDC, the trial court held that the initiative did not affect the already-authorized trade. The court distinguished Dos Cabezas on the ground that, in Dos Cabezas "numerous discretionary procedures" remained to be performed by the legislative body, while in the case before us only ministerial
[154 Ariz. 111] acts remain to be performed by the city manager.
We disagree with the trial court's analysis. In Dos Cabezas, the Cochise Board of Supervisors granted a petition for formation of a power district. While two power companies serving territory within the proposed district's boundaries were appealing the board's decision, the legislature amended the operative statute to prohibit the formation of a new power district that would include territory served by another electrical power-producing entity. The two utilities argued that the district could not be created because of the new law. The court of appeals stated the issue as: "What happens when a statute is amended while proceedings are going on under the old statute?" 17 Ariz.App. at 420, 498 P.2d at 494. The court held that if proceedings under a statute are "pending" and not completed when the statute is amended, the amended statute governs. Id.
The trial court attempted to distinguish the cases on the ground that in Dos Cabezas the Board of Supervisors had numerous discretionary procedures to perform before the new power district could be created, while in the instant case the City Council had completed its work and had delegated ministerial power to the city manager. We disagree and believe the court's analysis in Dos Cabezas turned on whether all the steps to consummate the creation of the district had been completed and not whether the remaining steps were ministerial or discretionary in nature or to be taken by the legislative body itself or delegated to others.
The text of the 1987 initiative is clear and unambiguous. No mountain preserve land "shall be ... traded, alienated, ... leased ... except by approval" of the voters. GDC persuasively argues that the 1987 initiative can do no more than forbid future action. As opposed to a referendum, an initiative cannot repeal the preceding charter provision nor act retroactively to undo that which was legally done under the former provision. Therefore, the 1987 initiative can be given only prospective effect. We agree. By its absolute terms, however, the initiative forbids the doing of that which was not yet done at the time the initiative became law. In our view, therefore, the text of the 1987 initiative, the principles of Dos Cabezas, and logic provide an uncomplicated test. If the "deal was done" prior to January 14, 1987, it cannot be undone by the 1987 initiative. If it was not done but was pending on the effective date of the 1987 initiative, then the new law applies to prohibit consummation of the trade and leaseback without voter approval.
When is a transaction no longer pending so that it must be considered complete and outside the reach of the 1987 initiative? If the transaction had reached the point where, if one of the parties had changed its mind as to the terms or decided to withdraw, the other party could require the first to perform, we believe the transaction would have to be considered as no longer pending and as having been substantially...
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