Tucson v. Consumers for Retail Choice

• Decision Date: 25 May 2000
• Docket Number: No. 2 CA-CV 00-0035.,2 CA-CV 00-0035.
• Citation: 5 P.3d 934,197 Ariz. 600
• Parties: CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, and Joana Diamos, Intervenor/Appellant/Cross-Appellee, v. CONSUMERS FOR RETAIL CHOICE SPONSORED BY WAL-MART, Defendant/Appellee/Cross-Appellant. Consumers for Retail Choice Sponsored by Wal-Mart, a political committee registered with the Tucson City Clerk, and Hal Personius, a citizen and qualified elector of the City of Tucson, Plaintiffs/Appellees/Cross-Appellants, v. Kathleen Detrick, as the Clerk of the City of Tucson, and the City of Tucson, a municipal corporation, Defendants/Appellants/Cross-Appellees, and Joana Diamos, Intervenor/Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

5 P.3d 934

197 Ariz. 600

CITY OF TUCSON, a municipal corporation, Plaintiff/Appellant/Cross-Appellee, and Joana Diamos, Intervenor/Appellant/Cross-Appellee, v. CONSUMERS FOR RETAIL CHOICE SPONSORED BY WAL-MART, Defendant/Appellee/Cross-Appellant.

Consumers for Retail Choice Sponsored by Wal-Mart, a political committee registered with the Tucson City Clerk, and Hal Personius, a citizen and qualified elector of the City of Tucson, Plaintiffs/Appellees/Cross-Appellants, v. Kathleen Detrick, as the Clerk of the City of Tucson, and the City of Tucson, a municipal corporation, Defendants/Appellants/Cross-Appellees, and Joana Diamos, Intervenor/Appellant/Cross-Appellee.

No. -0035.

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

May 25, 2000.

Review Denied September 26, 2000.

Meyers, Taber & Meyers, P.C. By Lisa T. Hauser and Gust Rosenfeld, P.L.C. By Richard A. Segal, Phoenix, Attorneys for Appellees/Cross-Appellants.

Gabroy, Rollman & Bosse, P.C. By Richard M. Rollman and Richard A. Brown, Tuscon, Attorneys for Appellants/Cross-Appellees City of Tucson and Detrick.

Raven & Kirschner, P.C. By Anne C. Graham-Bergin, Tucson, Attorneys for Intervenor/Appellant/Cross-Appellee.

OPINION

HOWARD, Judge.

¶ 1 The City of Tucson, a charter city, filed a declaratory judgment action¹ to clarify the validity and constitutionality of its referendum ordinances, which impose requirements on the content and circulation of Tucson referendum petitions in addition to those imposed by our state referendum statutes. Hal Personius and Consumers For Retail Choice Sponsored by Wal-Mart (collectively CFRC) filed a special action against Kathleen Detrick and the City of Tucson, seeking mandamus relief requiring Tucson to accept and process CFRC's referendum petition and seeking a declaration that the state referendum statutes preempt Tucson's referendum ordinances. The trial court consolidated the two cases and granted summary judgment to CFRC, concluding that Tucson's referendum ordinances, with which CFRC did not comply, are preempted by the referendum statutes, and that CFRC's petition was qualified to appear on the ballot. Tucson appealed from this decision.² We reverse because Tucson's referendum ordinances do not conflict with, and are not preempted by, the referendum statutes, and CFRC did not comply with them.

BACKGROUND

¶ 2 In 1985, the mayor and council of the City of Tucson adopted a comprehensive ordinance regarding the preparation, circulation, and presentation of initiative and referendum petitions. In response to fraud involving an initiative petition, the mayor and council later adopted a second ordinance for initiative and referendum petitions, adding requirements for the circulation of petitions.

¶ 3 In 1999, the mayor and council adopted a "Big Box" ordinance which imposed certain restrictions on retail establishments with over 100,000 square feet of floor area. CFRC applied for a referendum petition to have the Big Box ordinance placed on the next election's ballot. Detrick gave CFRC a copy of Tucson's Initiative and Referendum Rules and Regulations, which contained relevant portions of the City's Charter and Code and a sample petition purportedly complying with the Arizona Constitution and referendum statutes and Tucson's referendum ordinances. CFRC, however, patterned its referendum petition on its interpretation of the Constitution and statutes and did not seek to comply with the requirements of Tucson's ordinances. This dispute arose after CFRC submitted its petition to Tucson's City Clerk.

DISCUSSION

¶ 4 In support of the trial court's ruling that Tucson's referendum ordinances were preempted by state law, CFRC contends that Tucson's ordinances impermissibly conflict with the state statutes, A.R.S. §§ 19-101 through 19-143, which set forth the procedures for referendum elections. Alternatively, CFRC asserts that the legislature "assumed control" of local referendum procedures in 1991, thereby appropriating the field. Tucson, however, claims that its ordinances supplement, rather than conflict with, the statutes and that the referendum ordinances concern solely local matters, over which the state has no control. Neither party presents any factual dispute, and we review this legal issue de novo. Herman v. City of Tucson, 311 Ariz. Adv. Rep. 12, ¶ 5, 197 Ariz. 430, 4 P.3d 973 (App.1999).

¶ 5 The right of statewide referendum is reserved in the Arizona Constitution to the people and the Legislature. Ariz. Const. art. IV, pt. 1, § 1(3). On matters involving incorporated cities, the power of referendum is reserved to the qualified electors of the city. Ariz. Const. art. IV, pt. 1, § 1(8). The Constitution grants cities the power to "prescribe the manner of exercising [that right] within the restrictions of general laws." Id.

¶ 6 In matters of solely local concern, a charter city's ordinance supersedes a conflicting state statute. Strode v. Sullivan, 72 Ariz. 360, 365, 236 P.2d 48, 51 (1951). However, in matters of both local and statewide concern, a charter city's ordinance is invalid if it conflicts with a valid state statute. Ariz. Const. art. IV, pt. 1, § 1(8); Strode, 72 Ariz. at 363,236 P.2d at 50; Mayor and Common Council of City of Prescott v. Randall, 67 Ariz. 369, 372, 196 P.2d 477, 479 (1948); City of Tucson v. State, 191 Ariz. 436, 438, 957 P.2d 341, 343 (1997). See also A.R.S. § 9-284(B). But there must be an actual conflict. "Mere commonality of some aspect of subject matter is insufficient," and the ordinance and the statute must not be "capable of peaceful coexistence." City of Prescott v. Town of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (1989),vacated in part on other grounds, 166 Ariz. 480, 803 P.2d 891 (1990)

; see also Jett v. City of Tucson, 180 Ariz. 115, 121-22, 882 P.2d 426, 432-33 (1994). And, although a city ordinance on a matter of local and statewide concern must not conflict with a statute, it may be more restrictive than the statute, City of Phoenix v. Breuninger, 50 Ariz. 372, 378, 72 P.2d 580, 583 (1937), " `may parallel it, or even go beyond it.'" Randall, 67 Ariz. at 372, 196 P.2d at 479, quoting Hislop v. Rodgers, 54 Ariz. 101, 115, 92 P.2d 527, 533 (1939). See also Union Transportes de Nogales v. City of Nogales, 195 Ariz. 166, ¶ 23, 985 P.2d 1025, ¶ 23 (1999).

¶ 7 Even if a city ordinance on a matter of local and statewide concern does not conflict with a state statute, however, it may nevertheless be invalid if the state has appropriated the field. Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 559, 578 P.2d 985, 988 (1978); Babe's Cabaret v. City of Scottsdale, 197 Ariz. 98, ¶ 11, 3 P.3d 1018, ¶ 11 (App.1999); City of Tucson v. Rineer, 193 Ariz. 160, ¶ 3, 971 P.2d 207, ¶ 3 (1998). "State preemption of local legislation raises a question of legislative intent, which can be either express or implied." Babe's Cabaret, 197 Ariz. 98, ¶ 11, 3 P.3d 1018, ¶ 11. The legislative intent to preempt must be clear; a negative inference is insufficient. Town of Chino Valley, 163 Ariz. at 616, 790 P.2d at 271; Rineer, 193 Ariz. 160, ¶ 4, 971 P.2d 207, ¶ 4; see also Jett, 180 Ariz. at 121-22,

882 P.2d at 432-33; Babe's Cabaret,

197 Ariz. 98, ¶ 11, 3 P.3d 1018, ¶ 11.

A. Local/statewide concern

¶ 8 Charter city elections are clearly a matter of local concern. See Triano v. Massion, 109 Ariz. 506, 508, 513 P.2d 935, 937 (1973)

; Strode, 72 Ariz. at 367-68,

236 P.2d at 53-54. They can, however, also involve matters of significant statewide importance. See City of Tucson v. State. Although the legislature did not identify any statewide interest in the referendum statutes, CFRC has posited that ensuring uniformity and avoiding confusion for citizens who want to circulate municipal and statewide referendum petitions are matters of statewide concern. We assume, without deciding, that city referendum procedures are also a matter of statewide concern.

B. Conflict

¶ 9 Section 19-141(A), A.R.S., provides that "[t]he provisions of this chapter shall apply to the legislation of cities, towns and counties, except as specifically provided to the contrary in this article...." (Footnote omitted.) Among other things, the chapter—A.R.S. §§ 19-101 through 19-143— provides the form for referendum petitions; outlines the general procedures for signing, filing, and verifying the petitions; prohibits certain acts; and provides a framework for referendum elections. Tucson's referendum ordinances have additional requirements, including, providing: (1) the names and addresses of three people who should be notified of all proceedings related to the petition; (2) a statement in the petition that the mayor and council may repeal the legislation or call a general or special election; and (3) avowals by the circulator that he or she retained direct custody and control of each signature sheet and personally witnessed each signature, that a copy of the title and text of the proposed referendum measure was attached to each signature sheet when circulated, and that the circulator crossed out and initialed all blank signature lines. See Tucson City Code §§ 12-52, 12-54, 12-76, and 12-77.

¶ 10 Tucson's additional referendum requirements are more restrictive than those of the state, adding more content to the petition and additional requirements for circulators. See Union Transportes de Nogales,195 Ariz. 166, ¶ 23, 985 P.2d 1025, ¶ 23; Randall, 67 Ariz. at 372, 196 P.2d at 479; Breuninger, 50 Ariz. at 378, 72 P.2d at 583. But they do not conflict with or attempt to overrule any state requirements and are able to peacefully coexist with the state requirements. See Town of Chino Valley,163 Ariz. at 616,790 P.2d at 271. Furthermore, although they may be slightly more burdensome than the state requirements, CFRC has produced no evidence that compliance with Tucson's referendum procedures would prevent or hinder a citizen from circulating a petition or would unduly burden the right of...