KZPZ BROADCASTING v. Black Canyon Citizens

• Decision Date: 30 November 2000
• Docket Number: No. 1 CA-CV 00-0128.,1 CA-CV 00-0128.
• Citation: KZPZ BROADCASTING v. Black Canyon Citizens, 13 P.3d 772, 199 Ariz. 30 (Ariz. App. 2000)
• Parties: KZPZ BROADCASTING, INC., Plaintiff-Appellee, v. BLACK CANYON CITY CONCERNED CITIZENS, Intervenor-Appellant.
• Court: Arizona Court of Appeals

13 P.3d 772

199 Ariz. 30

KZPZ BROADCASTING, INC., Plaintiff-Appellee, v. BLACK CANYON CITY CONCERNED CITIZENS, Intervenor-Appellant.

No. -0128.

Court of Appeals of Arizona, Division 1, Department C.

November 30, 2000.

Lewis and Roca LLP by Richard A. Halloran and Daniel A. Goldfried, Robert G. Schaffer, Phoenix, Attorneys for Plaintiff-Appellee.

Irvine Van Riper, P.A. by Ellen M. Van Riper, Phoenix, Attorneys for Intervenor-Appellant.

OPINION

VOSS, Presiding Judge.

¶ 1 Appellant Black Canyon City Concerned Citizens ("Citizens") appeals from the trial court's summary judgment in favor of appellee KZPZ Broadcasting, Inc. ("KZPZ") in this successful challenge to the validity of referendum petition sheets circulated by nonresidents of Yavapai County. The primary issue before us is whether any statutory authority precludes the circulation of county referendum petitions by nonresidents of the county who are otherwise qualified electors in Arizona, and, if so, whether such a restriction can withstand constitutional scrutiny after the United States Supreme Court's decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). We conclude that no statutory authority in January 1999 could have required invalidation of referendum petition sheets circulated by nonresidents of Yavapai County who were otherwise qualified electors in Arizona, because such a restriction would not withstand the strict scrutiny required under the free speech protections of the First and Fourteenth Amendments to the United States Constitution.

FACTS AND PROCEDURAL HISTORY

¶ 2 In January 1999, Citizens collected signatures on a petition to bring a referendum in Yavapai County challenging the actions of the Yavapai County Board of Supervisors in granting a special use permit to KZPZ to erect seven radio towers in Black Canyon City. Citizens was required to obtain the referendum petition signatures within thirty days of the Board's approval of the minutes reflecting the action. See Ariz.Rev.Stat.Ann. ("A.R.S.") § 19-142(A). The parties do not dispute the following relevant facts: (1) twenty-five of the thirty-two referendum petition circulators were Yavapai County residents; (2) the remaining seven petition circulators were residents of either Maricopa County or Pinal County; (3) all thirty-two circulators were registered voters in Arizona; and (4) the referendum would not qualify for the ballot unless the petition sheets circulated by the Maricopa and Pinal County residents were included in the signature count. The Yavapai County Elections Director included the signatures on petition sheets circulated by the nonresidents of Yavapai County, and on March 24, 1999, certified that the referendum qualified for the ballot.

¶ 3 KZPZ filed a special action in superior court, seeking to enjoin the placement of the referendum on the ballot, and challenging the validity of the signatures collected by the nonresident circulators. Citizens intervened, and by stipulation was allowed to defend the Election Director's and the County Recorder's certification of the referendum.

¶ 4 The parties filed cross-motions for summary judgment. KZPZ contended that, because only residents of Yavapai County are statutorily qualified to circulate referendum petitions on county ordinances, the signatures obtained on petition sheets circulated by the Maricopa and Pinal County residents should have been invalidated by the County Recorder. Citizens contended that no such local residency restriction was imposed on Arizona residents as petition circulators under Arizona law, and alternatively that, if such a restriction existed, it was unconstitutional.

¶ 5 The trial court concluded that, although the former statutory requirement that referendum petition circulators be "qualified electors" was no longer constitutionally valid after the United States Supreme Court's decision in Buckley, the unconstitutional portion of the statute that required a petition circulator to be a registered voter could be severed, leaving the remaining constitutional requirement that a circulator be "qualified to register to vote." The trial court concluded that this restriction "includes a requirement of residency in the political subdivision, is not a violation of the First Amendment and is not unconstitutional." Therefore, the court held, "the circulator must be qualified to register to vote in a county election and be a resident of that county." Because seven of the petition circulators were not Yavapai County residents, the court ruled that the petition signatures they collected must be subtracted, and ordered the County Recorder and Elections Director to "disqualify all invalid signatures, that the referendum not be placed on any election ballot and that the Board of Supervisors' January 4, 1999 approval of a special use permit is effective." After the trial court granted summary judgment in KZPZ's favor and awarded it attorneys' fees, Citizens timely appealed.¹

DISCUSSION

1. Standards of Review

¶ 6 In reviewing an order granting summary judgment, we must determine whether there is a genuine issue of disputed material fact and, if not, whether the trial court correctly applied the substantive law. See In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App.1991). Questions of law are reviewed de novo. See State v. Malvern, 192 Ariz. 154, 155, 962 P.2d 228, 229 (App.1998).

2. Justiciability Issues

¶ 7 As a preliminary matter, we address issues raised on appeal regarding the justiciability of this action.

A. Plaintiff's Standing to Challenge a Referendum

¶ 8 In a motion to dismiss, Citizens challenged KZPZ's standing to bring this lawsuit, contending that, as a corporation, KZPZ was not a "citizen" entitled to challenge the referendum certification within the meaning of A.R.S. sections 19-122(C) and 19-121.03(B). Our review of this issue is de novo. See Gemstar, Ltd. v. Ernst & Young, 185 Ariz. 493, 499, 917 P.2d 222, 228 (1996).

¶ 9 The trial court ruled as follows:

The Court finds that for purposes of challenging a referendum or an election, a corporation is a citizen. A.R.S. § 19-121.02(B) specifically provides that any citizen may challenge in the Superior Court the certification made by a County Recorder pursuant to § 19-121.02 within ten (10) calendar days of the receipt thereof by the Secretary of State. In A.R.S. § 19-101, the Legislature has prescribed that a form of petition for referendum must now contain in part the following language, "We, the undersigned citizens and qualified electors...." And [in] § 19-102, the Legislature requires the same language in an initiative petition. However, in A.R.S. § 19-121.03, which provides for judicial review of actions by the County Recorder, paragraph B, provides that any citizen may challenge in the Superior Court the certification made by a County Recorder and does not require the citizen to also be [a] qualified elector. Article 14 Section 1 of the Arizona Constitution provides in part that corporations shall have the right to sue and shall be subject to be sued, in all courts, in like cases as natural persons.

The Court finds that the Legislature in specifically requiring that a citizen be a "qualified elector" for certain purposes and... [not requiring] a citizen to be [a] "qualified elector" for other purposes, specifically has not limited the "citizen" to take certain action or to challenge certain statutes. Had the Legislature so intended, it would have specifically required the "citizen" in § 19-121.03 to not only be a citizen but also a qualified elector.

The Court also finds that KZPZ has a personal stake in the outcome as required by Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Therefore, the Court concludes KZPZ has standing.

¶ 10 We set forth this ruling in its entirety because we find it well-reasoned and legally correct. Citizens argues that only a "natural person" can be included in the meaning of "citizen," relying on Alliance Marana v. Groseclose, 191 Ariz. 287, 955 P.2d 43 (App.1998). That case, however, held only that a plaintiff who was not a "citizen" of the town and had no interest in the outcome of the litigation, had no standing to compel the town clerk to forward the referendum petitions to the county recorder. 191 Ariz. at 289, 955 P.2d at 45. Additionally, Citizens' references to cases in which various courts have interpreted a "citizen" to be "a natural person" have no application to our statutory interpretation within the context of Titles 19 and 16. We therefore find no ground for reversal on this basis.

B. Indispensable Parties

¶ 11 Citizens also contends that the trial court erred in denying its motion to dismiss on the ground that KZPZ failed to join, as indispensable parties to this suit, both Yavapai County and the Yavapai County Board of Supervisors. The trial court ruled:

The Court finds that neither Yavapai County nor the Yavapai County Board of Supervisors are necessary or indispensable parties. The Plaintiff's claim for relief seeks to compel the County Recorder and the Elections Director to comply with statutory duties, including disqualifying alleged irregular and defective petitions filed by BCCCC and refusing to certify BCCCC's referendum for the ballot. These are not duties imposed on the County or the Board of Supervisors, consequently neither are necessary or indispensable parties.

¶ 12 We agree with this ruling. This case was brought as a statutory special action pursuant to A.R.S. section 19-121.03 for judicial review of the actions of the Yavapai County Recorder, and seeking a writ of mandamus compelling the County Recorder and the Yavapai County Elections Director to decertify the referendum and remove it from the ballot. No order was sought against either the County itself or the Board of Supervisors. Citizens argues that the power to call a county election is vested exclusively...