Sherman v. City of Tempe

• Decision Date: 12 April 2002
• Docket Number: No. CV-01-0287-PR.,CV-01-0287-PR.
• Citation: Sherman v. City of Tempe, 45 P.3d 336, 202 Ariz. 339 (Ariz. 2002)
• Parties: Barbara J. SHERMAN; Thomas L. Sherman; Eleonore Curran; Nancy Goren; Gary Goren; Carole Hunsinger; Jalma W. Hunsinger; Catherine M. Mancini; and Dominic D. Mancini, Contestant, Plaintiffs-Appellants, v. CITY OF TEMPE and Neil Giuliano, Contestee, Defendants-Appellees.
• Court: Arizona Supreme Court

45 P.3d 336

202 Ariz. 339

Barbara J. SHERMAN; Thomas L. Sherman; Eleonore Curran; Nancy Goren; Gary Goren; Carole Hunsinger; Jalma W. Hunsinger; Catherine M. Mancini; and Dominic D. Mancini, Contestant, Plaintiffs-Appellants, v. CITY OF TEMPE and Neil Giuliano, Contestee, Defendants-Appellees.

No. CV-01-0287-PR.

Supreme Court of Arizona, En Banc.

April 12, 2002.

Brown & Bain, P.A., by Paul F. Eckstein, Joel W. Nomkin, Shelley D. Cutts, Phoenix, Attorneys for Barbara J. Sherman, et al.

Osborn Maledon, P.A., by Andrew D. Hurwitz, Jill Harrison, Thomas Hudson, Phoenix, Attorneys for City of Tempe and Neil Giuliano.

Tempe City Attorney's Office, by C. Brad Woodford, City Attorney, Janis L. Bladine, Assistant City Attorney, Tempe, Attorneys for City of Tempe and Neil Giuliano.

Janet Napolitano, Attorney General, by Joseph Kanefield, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Secretary of State.

Timothy M. Hogan, Phoenix, Attorney for Amicus Curiae League of Women Voters of Arizona.

David R. Merkel, Tempe, General Counsel, Amicus Curiae League of Arizona Cities and Towns.

Michael D. House, Dennis P. McLaughlin, Tucson, Attorneys for Amicus Curiae City of Tucson.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 We granted review to determine whether the City of Tempe ("the City") violated Arizona election statutes by failing to mail publicity pamphlets ten days before the start of early voting for its May 16, 2000 general election and, if so, whether the City's charter amendment, formerly Proposition 100, must be invalidated. We also consider whether the charter amendment violates the Arizona Constitution's prohibition against special laws. We conclude that the City did not violate the election statutes and that the charter amendment is not an unconstitutional special law.

I.

¶ 2 The City's May 16, 2000 general election included Proposition 100, a proposed charter amendment that would change the City's mayoral term from two years to four years beginning with any term commencing on or after July 1, 2000. On April 13, 2000, Maricopa County, acting pursuant to an intergovernmental agreement with the City, mailed approximately 15,000 early ballots for the City's general election. On April 17, 2000, the City opened a polling place for early voting. By the close of business on April 27, 2000, nearly 7,000 voters had cast early ballots either by mail or in person. On April 28, 2000, City officials mailed voters the pamphlets for the general election. The pamphlets included the text of and analysis for Proposition 100. In May, the voters adopted Proposition 100, the official tally showing 9,155 votes for and 5,650 votes against.

¶ 3 In the City's primary election on March 14, 2000, incumbent Mayor Neil Giuliano had received a majority of the votes cast. Because Giuliano won the primary election by a majority, the general election ballot included no listing for the office of mayor. Giuliano's election became effective on May 16, 2000, and his term of office began on July 1, 2000. The adoption of Proposition 100 resulted in Giuliano's term being lengthened from two years to four years.

¶ 4 After the general election, Respondents, a group of City voters, contested the election results by filing a special action complaint and statement of election contest in superior court under Arizona Revised Statutes (A.R.S.) sections 16-672 through 16-674. The complaint alleged that Proposition 100 was invalid because it was an unconstitutional special law and because the publicity pamphlets were not timely mailed pursuant to section 19-123.

¶ 5 The City and Mayor Giuliano moved to dismiss the complaint, arguing that the publicity pamphlet requirement did not apply, or that if it did apply, the City had timely mailed the pamphlets. The trial court, treating the City's motion as a motion for summary judgment, held that Title 19's publicity pamphlet requirement governed Proposition 100, that the City had timely provided pamphlets, and that Proposition 100 was not an unconstitutional special law. Respondents appealed.

¶ 6 The court of appeals invalidated the election, holding that Proposition 100 was subject to the publicity pamphlet requirement of Title 19 because "the statutes in Title 19, read together and in harmony, advance the legislature's intent to require publicity pamphlets to be distributed to voters in connection with proposed charter amendments." Sherman v. City of Tempe, 200 Ariz. 190, 195 ¶ 22, 24 P.3d 1285, 1290 ¶ 22 (App.2001). Next, the court held that the City did not timely distribute publicity pamphlets. Id. at 195 ¶ 27, 24 P.3d at 1290 ¶ 27. Specifically, the court construed section 19-141.A's requirement that pamphlets be distributed "not less than ten days before the election at which measures are to be voted upon," as requiring pamphlet distribution ten days before any voting can occur, not just ten days before the day of the election. A.R.S. § 19-141.A (Supp.2000); Sherman, 200 Ariz. at 196 ¶ 28, 24 P.3d at 1291 ¶ 28.

¶ 7 We granted review to determine whether "election," as used in section 19-141, refers to election day or to the date early ballots are distributed and to consider whether the amendment constitutes a special law under Arizona's Constitution. After hearing oral argument, we entered our order upholding Proposition 100 and stating that this opinion would follow. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

II.

¶ 8 Arizona's election statutes do not require publicity pamphlets for all elections. Rather, the secretary of state must prepare and distribute publicity pamphlets when "ordered by the legislature, or by petition under the initiative and referendum provisions of the constitution, to submit to the people a measure or proposed amendment to the constitution." A.R.S. § 19-123.A (Supp.2000). By virtue of A.R.S. section 19-141.A, section 19-123 applies to "the legislation of cities, towns and counties" and, therefore, requires cities to prepare and distribute publicity pamphlets when measures come before voters by way of initiative and referendum. A.R.S. § 19-141.A (Supp.2000). We have never determined whether a city charter amendment falls within the language of sections 19-123 and 19-141. Because the parties have not raised this issue here, however, we assume for purposes of this opinion that Title 19 governs Proposition 100.

III.

¶ 9 Challenges concerning alleged procedural violations of the election process must be brought prior to the actual election. Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987) (holding that "[p]rocedures leading up to an election cannot be questioned after the people have voted, but... must be challenged before the election is held")(citing Kerby v. Griffin, 48 Ariz. 434, 444-46, 62 P.2d 1131, 1135-36 (1936)).¹ Thus, before considering the validity of Proposition 100, we first consider whether Respondents' claim alleges a violation of the election process.

¶ 10 Election procedures generally involve "the manner in which an election is held." Tilson, 153 Ariz. at 470, 737 P.2d at 1369. For example, the election procedures at issue in Tilson related to the manner in which ballot initiatives must be written and described in publicity pamphlets. Id. at 471-72, 737 P.2d at 1370-71. Similarly, the complaint in Kerby concerned the procedure for printing and circulating publicity pamphlets prior to an election. Kerby, 48 Ariz. at 449, 62 P.2d at 1137. This action, which involves the timing of publicity pamphlet distribution, also concerns proper election procedure.

¶ 11 By filing their complaint after the completed election, Respondents essentially ask us to overturn the will of the people, as expressed in the election. In addition, Respondents ask us to overlook our own mandate that courts should review alleged violations of election procedure prior to the actual election. See Tilson, 153 Ariz. at 470, 737 P.2d at 1369. Ordinarily, we would find Respondents' claim precluded because they did not challenge the timing of the City's distribution of publicity pamphlets before the election. Because neither party raised this issue, however, we indulge the further assumption that Respondents brought the action in a timely manner.

IV.

¶ 12 Even if Respondents had timely challenged the City's procedure, we would not overturn the May 16, 2000 election because the City complied with the procedural requirements of Title 19. Respondents allege that the City violated those portions of Title 19 which, at the time of the May 16, 2000 general election,² directed cities to mail publicity pamphlets containing the title, text and description of initiatives and referenda not "less than ten days before the election at which the measures are to be voted upon." A.R.S. §§ 19-123.A.1-2, 19-141.A (Supp. 2000). Specifically, Respondents argue that the term "election" in the pre-amendment version of section 19-141.A refers to the date in April that early voting started, rather than to the actual day of the election. Therefore, Respondents assert, the statute required that the City mail publicity pamphlets ten days before the start of early voting, not merely ten days before election day.

¶ 13 We disagree. The legislative history behind Arizona's election statutes, the legislature's recent changes to section 19-141, other Arizona statutes that employ the word "election," and the language of the statute itself, all demonstrate that section 19-141.A refers to election day, not to the start of early voting.

A.

¶ 14 The legislature first enacted section 19-141 in 1912. See 1912 Ariz. Sess. Laws, 1st Sp. Sess., ch. 71 § 9. Like the modern-day statute, the 1912 version of the statute governed specified local elections and required that publicity pamphlets be distributed "not less than eight days before the election at which the measures are to be...