Kromko v. City of Tucson

• Decision Date: 10 May 2002
• Docket Number: No. 2 CA-CV 2002-0064.,2 CA-CV 2002-0064.
• Citation: 202 Ariz. 499,47 P.3d 1137
• Parties: John KROMKO, Plaintiff/Appellee/Cross-Appellant, v. CITY OF TUCSON, a municipal corporation; James Keene, City Manager, Defendants/Appellants/Cross-Appellees.
• Court: Arizona Court of Appeals

47 P.3d 1137

202 Ariz. 499

John KROMKO, Plaintiff/Appellee/Cross-Appellant, v. CITY OF TUCSON, a municipal corporation; James Keene, City Manager, Defendants/Appellants/Cross-Appellees.

No. -0064.

Court of Appeals of Arizona, Division 2, Department A.

May 10, 2002.

Redesignated as Opinion June 11, 2002.

Raven & Awerkamp, P.C., by Anne C. Graham-Bergin, Tucson, for Plaintiff/Appellee/Cross-Appellant.

Gabroy, Rollman & Bosse, P.C., by Richard M. Rollman and Richard A. Brown, Tucson, for Defendants/Appellants/Cross-Appellees.

Arizona Center for Law in the Public Interest, by Joy E. Herr-Cardillo, Tucson, for Amicus Curiae Citizens for a Sensible Transportation Solution.

OPINION

FLOREZ, Judge.

¶ 1 In accordance with the May 3, 2002, order of this court, the judges of Department A have considered this accelerated appeal and cross-appeal pursuant to Rule 29, Ariz. R.Civ.App.P., 17B A.R.S. We have jurisdiction of this appeal and cross-appeal from the trial court's April 30, 2002, order granting appellee/cross-appellant John Kromko partial injunctive relief, pursuant to A.R.S. § 12-2101(F)(2). Upon consideration of the record, the briefs, including the amicus curiae brief we permitted the Arizona Center for Law in the Public Interest to file and the City's opposition thereto, and oral argument, we vacated the preliminary injunction on May 8, 2002, affirmed the denial of injunctive relief as to those matters that were the subject of Kromko's cross-appeal, and stated that this decision order would follow.

¶ 2 On April 17, 2002, Kromko filed a complaint in Pima County Superior Court seeking a declaration that appellant City of Tucson and its manager, James Keene (jointly referred to as the City), were violating A.R.S. § 9-500.14(A) by disseminating information through various media regarding two propositions that are on the ballot for the City's May 21, 2002, special referendum election: Proposition 400, which is the City of Tucson Transportation Improvement and Traffic Congestion Reduction Plan (the "Transportation Plan"), and Proposition 100, which proposes that the City's charter be amended to increase its business privilege tax by one-half cent in order to generate revenue for the Transportation Plan. Kromko sought to enjoin the City from continuing to disseminate the information, contending it was violating § 9-500.14(A) because the City was not simply educating the public through pamphlets, television announcements, and Internet websites but was advocating a vote in favor of the propositions, using City personnel, equipment, materials, and other resources to do so.

¶ 3 On April 30, 2002, the trial court granted partial relief, enjoining the City from disseminating the Transportation Plan pamphlet, broadcasting a television public service announcement featuring Keene, and displaying three Internet website pages, finding these communications "likely to," "intended to," or "meant to influence the election outcome." The court found, however, that Kromko had not sustained his burden of establishing grounds for an injunction as to the City's Continuous Flow Intersection pamphlet and four other pages of the website. See Shoen v. Shoen, 167 Ariz. 58, 804 P.2d 787 (App.1990)

(party seeking injunctive relief must show strong likelihood of success at trial on merits, possibility of irreparable harm not remedied by damages if injunction not granted, balance of hardships in party's favor, and public policy favoring injunctive relief). The City appealed and, after the trial court refused the City's request to stay the April 30 order, sought a stay from this court. Although we denied the stay, we accelerated the appeal pursuant to Rule 29; see also Perini Land and Dev. Co. v. Pima County, 170 Ariz. 380, 825 P.2d 1 (1992), and held oral argument on the appeal and subsequently filed cross-appeal on May 8, 2002.

¶ 4 We review a trial court's order granting or denying an injunction for a clear abuse of discretion. Shoen. But, because the underlying issues in this case involve matters of statutory interpretation and application, our review is de novo. State v. Korovkin,, 202 Ariz. 493, 47 P.3d 1131, (App.,2002). Consequently, we review the legal issues anew and determine whether the trial court erred as a matter of law and thereby abused its discretion in granting, in part, and denying, in part, Kromko's request for injunctive relief.

¶ 5 We summarily reject the City's challenge of the trial court's rejection of its claim that Kromko's action was barred by the equitable doctrine of laches. The City made it clear at oral argument before this court that it wished to have the merits of the appeal and cross-appeal addressed and essentially abandoned this claim. Moreover, the trial court did not abuse its discretion in rejecting the City's laches argument, given the record before us. We therefore turn to the merits of this case.

¶ 6 Section 9-500.14(A) provides as follows:

A city or town shall not use its personnel, equipment, materials, buildings or other resources for the purpose of influencing the outcomes of elections. Notwithstanding this section, a city or town may distribute informational reports on a proposed bond election as provided in § 35-454. Nothing in this section precludes a city or town from reporting on official actions of the governing body.

At the heart of the appeal and cross-appeal is the following question: precisely what constitutes "influencing the outcomes of elections" for purposes of the statute?

¶ 7 Kromko contends the statute requires the City to present the information in a fair and impartial manner.¹ Kromko insists that the City was, therefore, required to inform the electorate of the negative aspects of the propositions and that it failed to do so, presenting them only in a positive light. As support for his contention, he relied at oral argument on cases cited by the amicus curiae in its brief, primarily Fairness and Accountability in Insurance Reform v. Greene, 180 Ariz. 582, 886 P.2d 1338 (1994), and Arizona Legislative Council v. Howe, 192 Ariz. 378, 965 P.2d 770 (1998). But these cases do not assist us in interpreting § 9-500.14(A). Rather, they involved statutes applicable to state election ballots and publicity pamphlets, specifically A.R.S. §§ 19-123 and 19-124. Section 19-124(B) requires the legislative council to "prepare and file with the secretary of state an impartial analysis of the provisions of each ballot proposal of a measure or proposed amendment." There is no such language or even similar language in § 9-500.14. From the fact that the legislature worded § 19-124(B) so differently from § 9-500.14, modeling the latter after the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and some of its progeny, we infer that the legislature did not intend that the two statutes be given the same meaning. Had the legislature wanted to make presentation of an impartial analysis a prerequisite to a City's use of its funds and resources to educate the public on a ballot issue, it easily could have done so. A different standard simply must apply to § 9-500.14 than applies to § 19-124.

¶ 8 We note that in a related argument presented at oral argument on appeal, Kromko relied on the recently distributed publicity pamphlet for the upcoming special referendum election² as an example of a fair and impartial presentation of the information regarding the propositions. The trial court did not have the benefit of that pamphlet when it decided to grant the injunction, however. It is not, therefore, part of the record on appeal and may not be considered in reviewing the propriety of the trial court's order, although we permitted counsel to use it at oral argument for illustrative purposes. In any event, the pamphlet does not persuade us that the City was required to provide information as presented in the pamphlet because, again, the information that may be presented in the pamphlet is controlled by the election statutes that require a fair and impartial presentation of information on the issues. A.R.S. §§ 19-123; 19-124; 19-141.

¶ 9 The City urges us to construe § 9-500.14 as precluding only the expenditure of funds and use of resources for communications that expressly advocate a particular vote. The City relies significantly on Buckley, in which the Supreme Court addressed the constitutionality of certain provisions of the Federal Election Campaign Act of 1971, as amended in 1974, 2 U.S.C. § 431 et seq., which contains language in its disclosure provisions and spending limits similar to the language in § 9-500.14.³ The City suggests that in order to be considered express advocacy, the communication must use direct terms such as those identified by the Court in Buckley: "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'" 424 U.S. at 44 n. 52, 96 S.Ct. at 647 n. 52, 46 L.Ed.2d at 702 n. 52. We disagree.

¶ 10 First, such a narrow construction of the statute leaves room for great mischief. Application of the statute could be avoided simply by steering clear of the litany of forbidden words, albeit that the message and purpose of the communication may be unequivocal. Additionally, based on language in Buckley itself as well as cases decided later, we think there is a second, alternative test for determining whether a communication is designed to influence the outcome of an election: express advocacy may be based on communication that, "taken as a whole[,] unambiguously urge[s]" a person to vote in a particular manner. Schroeder v. Irvine City Council, 97 Cal.App.4th 174, 118 Cal.Rptr.2d 330, 339 (2002). See also Federal Election Comm'n v. Furgatch, 807 F.2d 857 (9th Cir. 1987)

. The communication "must clearly and unmistakably present a plea for action, and identify the advocated action; it is not express advocacy if reasonable minds could differ as to whether it encourages a vote for or...