Respect the Promise in Opposition to R-14-02-Neighbors for a Better Glendale v. Hanna
| Decision Date | 18 September 2015 |
| Docket Number | No. 1 CA–CV 14–0801.,1 CA–CV 14–0801. |
| Citation | 360 P.3d 92,238 Ariz. 296,721 Ariz. Adv. Rep. 33 |
| Parties | RESPECT THE PROMISE IN OPPOSITION TO R–14–02–NEIGHBORS FOR A BETTER GLENDALE, an Arizona political committee; No More Bad Deals for Glendale in Opposition to R–14–03–Neighbors for a Better Glendale, an Arizona political committee, Gary Hirsch, an individual, Plaintiffs/Appellants v. Pam HANNA, in her official capacity as City Clerk of the City of Glendale, Arizona; City of Glendale, Arizona, a municipal corporation, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
Osborn Maledon, P.A. By Mary O'Grady, John L. Blanchard, Phoenix, Counsel for Plaintiffs/Appellants.
Coppersmith Brockelman PLC By Keith Beauchamp, Roopali H. Desai, Melissa A. Soliz, Phoenix, Counsel for Defendants/Appellees.
¶ 1 Gary Hirsch, as chairman of two neighborhood political committees, appeals the superior court's denial of his application for a writ of mandamus requiring the Glendale City Clerk to accept and file referendum petitions challenging the Glendale City Council's approval of a resolution and related settlement agreement. Hirsch argues the City Council's acts were referable and the City Clerk lacked discretion to refuse to follow the statutory requirements for processing referendum petitions. Because we conclude that neither the resolution nor the settlement agreement were legislative acts, they are not subject to the power of referendum. We therefore affirm the court's order.
¶ 2 In November 2001, the City Council adopted Ordinance No. 2229, which purported to annex a parcel of land contiguous to the City's border, known as Area 137. After an Area 137 landowner filed a petition to set aside the annexation, however, the City Council adopted Ordinance No. 2258, which abandoned the annexation. Approximately one year later, the Tohono O'odham Nation (“the Nation”) purchased 134 acres of land (“the Property”) located within Area 137.
¶ 3 In 2009, the Nation applied to the Bureau of Indian Affairs to have the Property taken in trust by the federal government, which would allow the Nation to conduct gaming activity on the Property. In response to the Nation's application, the City Council passed Resolution No. 4246, “voicing” its opposition to the Nation's application and corresponding efforts to establish gaming on the Property. The resolution also directed the Glendale City Manager and City Attorney “to take all reasonable, necessary and prudent actions to oppose” the Nation's application. The City Council further adopted Ordinance No. 2688, which stated that Ordinance No. 2258 “was ineffective and a ity” and declared that Area 137 was indeed annexed as of December 27, 2001. The Nation, however, successfully challenged the City's attempted annexation. Tohono O'odham Nation v. City of Glendale,227 Ariz. 113, 253 P.3d 632 (App.2011).
¶ 4 In July 2010, the Secretary of the Department of the Interior approved the Nation's application and accepted the Property in trust under the federal Gila Bend Indian Reservation Lands Replacement Act, 100 Stat. 1798 (1986). The City, and other entities opposing the gaming facility, challenged the Secretary's decision in federal district court, which upheld the decision. The City appealed and the Ninth Circuit Court of Appeals vacated the district court's ruling in part and remanded, directing the Secretary to consider whether the land was “within the corporate limits of any city or town.”Gila River Indian Cmty. v. United States,729 F.3d 1139, 1150–51 (9th Cir.2013). Additional litigation ensued, stemming from the legislature's adoption of a statute in 2010 to facilitate annexation of land on a county island when an application to have the land taken into federal trust is pending. The Nation sued the State of Arizona and the City, challenging the constitutionality of the new law. The federal district court struck down the law, prompting the State and the City to appeal.
¶ 5 Meanwhile, Representative Trent Franks of Arizona introduced in Congress the Keep the Promise Act of 2013 (“the Franks Bill”), designed to prevent the construction of new casinos on trust lands within the Phoenix metropolitan area. On March 25, 2014, the City Council passed Resolution No. 4783, declaring its opposition to the Franks Bill. Interested parties attempted to refer the resolution to voters, but the City Clerk rejected the referendum petitions, explaining the matter was administrative and therefore not referable. The City Clerk's decision was not challenged.
¶ 6 On July 3, 2014, the Secretary determined the Property was not within the corporate limits of any city or town and therefore took the Property in trust. On July 15, 2014, the City Council approved Resolution No. 4828, which repealed Resolution No. 4246 () and recognized that City staff had been directed to commence negotiations with the Nation. No referendum petitions were filed challenging Resolution No. 4828.
¶ 7 On August 14, 2014, the City Council adopted Resolution No. 4840. To provide context, the resolution recounted the passage of Resolution 4246 (annexation resolution), state and federal litigation, the introduction of the Franks Bill, passage of Resolution No. 4783 (opposing the Franks Bill), the final decision of the Secretary, passage of unchallenged Resolution No. 4828 (), and prior settlement negotiations between the City and the Nation. The resolution then (1) reaffirmed the City Council's “support” for gaming on the Property; (2) declared it was in the best interests of the City to enter into a settlement agreement (“the Settlement Agreement”) with the Nation; (3) directed the mayor to execute the Settlement Agreement on the City's behalf; (4) directed the city attorney to withdraw from ongoing litigation; (5) declared support for the Secretary's decision to take the Property in trust; (6) declared support of the Nation's gaming project; (7) urged the State not to challenge the Secretary's decision and to withdraw from ongoing litigation; (8) urged the State's congressional delegation to oppose any legislation aimed at limiting the Nation's ability to conduct gaming on the Property; and (9) reaffirmed Resolution No. 4783 (opposing the Franks Bill).
¶ 8 On the same day, the City, the Nation, and the Tohono O'odham Gaming Enterprise entered into the Settlement Agreement, which recognized that the City had undertaken steps to oppose the Nation's proposed casino project by instituting litigation and pursuing state and federal legislation. The Settlement Agreement thus confirmed the parties' intentions to settle all disputes relating to the Property, including the dismissal of pending litigation. The Settlement Agreement also provided that the Nation would (1) fund all on-siteinfrastructure improvements and reimburse the City for costs it incurs for off-siteinfrastructure improvements; (2) make a one-time payment of $500,000 to the City within ten days of execution of the agreement; and (3) make various payments to the City and to the Glendale Convention and Visitors Bureau totaling more than $25 million over the next twenty years.
¶ 9 On August 25, 2014, the City was dismissed from the only remaining litigation, the appeal pending in the Ninth Circuit. Soon thereafter, Hirsch submitted separate petitions for referendum to the City Clerk challenging Resolution No. 4840 and the Settlement Agreement. The City Clerk rejected the petitions, explaining that both the Resolution and the Settlement Agreement were administrative, rather than legislative in nature, and therefore not subject to referendum.
¶ 10 Following the City Clerk's rejection, Hirsch applied for a writ of mandamus in the superior court to compel the City Clerk to process and file the referendum petitions. Following briefing and oral argument, the court entered judgment denying Hirsch's application, finding that neither Resolution No. 4840 nor approval of the Settlement Agreement were legislative acts subject to referendum. The court reasoned that (1) the provisions of Resolution No. 4840 unrelated to the Settlement Agreement do not “qualify as legislation;” and (2) the City's decision to settle its disputes with the Nation by entering the Settlement Agreement was an administrative act. Finally, the court held that the City Clerk had the authority to reject Hirsch's referendum petitions because they failed to meet the constitutional limitation that only legislative acts are referable. Hirsch timely appealed.
¶ 11 Hirsch contends Resolution No. 4840 and the Settlement Agreement created new a policy and are therefore legislative acts subject to referendum. Whether a particular action taken by the governing body of a municipality is subject to the referendum power is a question we review de novo. See Redelsperger v. City of Avondale,207 Ariz. 430, 432, ¶ 7, 87 P.3d 843 (App.2004)(reviewing de novo the trial court's finding that a city council acted in a legislative capacity, and thus subject to referendum, when it approved a conditional use permit).
¶ 12 The Arizona Constitution reserves the power of referendum to the people, Ariz. Const. art. 4, pt. 1, § 1, and thus “permits qualified electors to circulate petitions and refer to a popular vote legislation [that] has been enactedby their elected representatives.”
Wennerstrom v. City of Mesa,169 Ariz. 485, 488, 821 P.2d 146 (1991)(emphasis added). As relevant here, the constitution reserves the referendum power “to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which such incorporated cities, towns, and counties are or shall be empowered by general laws to legislate.” Ariz. Const. art. 4, pt. 1, § 1(8) (emphasis added).
¶ 13 Municipal corporations “act in several capacities: legislative, executive,...
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