Western Devcor, Inc. v. City of Scottsdale

• Citation: 168 Ariz. 426,814 P.2d 767
• Decision Date: 11 July 1991
• Docket Number: No. CV-91-0116-AP,CV-91-0116-AP
• Parties: WESTERN DEVCOR, INC., an Arizona corporation, Plaintiff/Appellant, v. CITY OF SCOTTSDALE, a municipal corporation; Mark G. MASSIE, in his capacity as City Clerk, for City of Scottsdale; Helen Purcell, in her capacity as Maricopa County Recorder; and Maricopa County, a body politic, Defendants/Appellees, Kenneth Pinckard, Guy Williams, Jr., Nancy Klein, Harmon C. Anderson, Nancy Campbell, and Susan W. Jones, Defendants/Intervenors/Appellees.
• Court: Supreme Court of Arizona

Page 767

814 P.2d 767

168 Ariz. 426

WESTERN DEVCOR, INC., an Arizona corporation, Plaintiff/Appellant, v. CITY OF SCOTTSDALE, a municipal corporation;

Mark G. MASSIE, in his capacity as City Clerk, for City of Scottsdale; Helen Purcell, in her capacity as Maricopa County Recorder; and Maricopa County, a body politic, Defendants/Appellees,

Kenneth Pinckard, Guy Williams, Jr., Nancy Klein, Harmon C. Anderson, Nancy Campbell, and Susan W. Jones, Defendants/Intervenors/Appellees.

No. CV-91-0116-AP.

Supreme Court of Arizona, In Banc.

July 11, 1991.

[168 Ariz. 427] Beus, Gilbert & Morrill by Paul E. Gilbert, J. Tyrrell Taber, and Jeffrey D. Gross, Phoenix, for plaintiff/appellant.

Richard W. Garnett, III, City Atty. by Fredda J. Bisman, Deputy City Atty., Scottsdale, for City of Scottsdale.

Richard M. Romley, Maricopa County Atty. by Christina P. Sargeant, Deputy County Atty., Phoenix, for Maricopa County.

Gil Shaw, Phoenix, for defendants/intervenors/appellees.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

Plaintiff Western Devcor (Owner ¹) challenged the sufficiency of referendum petitions and appeals the trial court's judgment upholding the validity of the petitions and permitting a referendum election. We have jurisdiction of this appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 19-122(C), 19-121.03, and 19-141(C). ²

FACTS

On December 4, 1990, the Scottsdale City Council unanimously approved the rezoning of Owner's property at the corner of Pima Road and Shea Boulevard. On January 11, 1991, Intervenors ³ filed referendum petitions seeking to refer the council's decision to the voters. Owner filed this case the same day, seeking to prevent the referendum. Owner's complaint presented several allegations: (1) the referendum was premature, (2) the referendum petitions were invalid on two separate grounds, (3) the random sampling method of A.R.S. § 19-121.02(A) is unconstitutional, and (4) the signatures on the petitions were invalid.

The trial court temporarily stayed the proceedings pending certification of the signatures obtained from the random sample required by A.R.S. § 19-121.02(A). In a January 25, 1991, letter, the Scottsdale City Clerk reported that the Maricopa County Recorder had determined that 14.2% of the signatures in the random sample were invalid. Based on projections from the sample, the clerk certified that a sufficient number of valid signatures existed.

At a status conference in the trial court, Owner dropped all counts of its complaint except its challenge to the validity of the referendum petitions. In a motion for summary judgment, Owner argued that the referendum petitions were invalid because they bore an inadequate title and because the circulators' affidavits did not state that the circulators believed the signers to be qualified electors of the City of Scottsdale. On March 5, 1991, the trial court ruled that the referendum petitions were sufficient and that the matter should be submitted to the city's voters. The transcript of the proceeding indicates that the trial court believed that the clerk's certification that the referendum petitions contained a sufficient number of signatures cured the defect in the circulators' affidavits. The trial court also considered the fact that each signature page contained a statement attributable to the signers to the effect that the signers were qualified electors of the City of Scottsdale.

The trial court entered judgment in favor of Intervenors and the other defendants, and Owner appealed. Following accelerated briefing, this court heard oral argument on April 9, 1991. On April 10, we ruled, by order, that the referendum petitions were insufficient under the Arizona Constitution. Accordingly, we reversed the trial court's judgment, directed it to enter judgment in favor of Owner, and stated that a written opinion would follow. This is that opinion.

ISSUE PRESENTED

Whether referendum petitions seeking to refer a legislative act of the Scottsdale City Council are invalid because they do not contain circulators' affidavits swearing that the circulators believe that each petition signer was a qualified elector of the City of Scottsdale.

DISCUSSION

I. Constitutional and Statutory Requirements for Referenda Must be Strictly Followed

The Arizona Constitution reserves to qualified electors a role in the legislative process via initiative and referendum procedures. Ariz. Const. art. 4, pt. 1, § 1. The Legislature itself may also refer proposed legislation to the electorate. Id., § 1(3). Referral by the Legislature is a separate process not addressed in this opinion, which deals only with voter-initiated referenda.

Throughout the years, and most recently in Pioneer Trust Co. v. Pima County, we have recognized Arizona's strong public policy favoring the initiative and referendum. --- Ariz. ---, ---, 811 P.2d 22, 27 (1991). In cases challenging compliance with constitutional and statutory requirements, however, we have distinguished between these two forms of participation in the legislative process. We permit substantial compliance in the initiative context, Kromko v. Superior Court, --- Ariz. ---, ---, 811 P.2d 12, 19 (1991), but require strict compliance in the referendum context. Cottonwood Dev. v. Foothills Area Coalition, 134 Ariz. 46, 48-49, 653 P.2d 694, 696-97 (1982); Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 6, 503 P.2d 951, 954 (1972).

We base this distinction on the difference between the two processes. An initiative allows qualified electors to submit legislation to the voters; a referendum allows qualified electors to refer to the voters legislation that has already been enacted by elected representatives. Cottonwood, 134 Ariz. at 48, 653 P.2d at 696. Because the referendum is an "extraordinary" power, Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953, that permits a "minority to hold up the effective date of legislation which may well represent the wishes of the majority," we require referendum proponents to comply strictly with applicable constitutional and statutory provisions. Cottonwood, 134 Ariz. at 49, 653 P.2d at 697. Thus, while recognizing the historical importance of the referendum to our state, we have required strict compliance to ensure that the constitutional right is not abused or improperly expanded. Id. at 48, 653 P.2d at 696; see also Direct Sellers, 109 Ariz. at 6, 503 P.2d at 954. Accordingly, courts must closely examine referendum petitions to determine whether they comply with constitutional and statutory requirements.

II. The Referendum Petitions Do Not Comply With Constitutional and Statutory Requirements

Article 4, pt. 1, § 1(9) of the Arizona Constitution requires that every referendum petition sheet shall contain the affidavit of the circulators verifying that:

[E]ach of the names ... was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector of the State, or in the case of a city, town, or county measure, of the city, town, or county affected by the measure so proposed to be initiated or referred to the people.

(emphasis added). A.R.S. § 19-112(B) tracks the constitutional provision and requires that the circulator's affidavit verify the circulator's belief that: "each signer was a qualified elector of a certain county of the state, or, in the case of a city, town or county measure, of the city, town or county affected by the measure on the date indicated." (emphasis added). In this case, the petitions sought to refer a legislative act of the City of Scottsdale, but the affidavits state that the circulators believed the signers were qualified electors of the State of Arizona. The circulators' affidavits, therefore, failed to state, as both art. 4, pt. 1, § 1(9) and A.R.S. § 19-112(B) specifically require, that the circulators believed each signer to be a qualified elector of the City of Scottsdale.

Because the law requires strict compliance with constitutional and statutory requirements for referenda, and because the referendum petitions in this case do not strictly comply, we must turn next to Intervenors' arguments that the referendum should be allowed to proceed despite the lack of strict compliance.

III. The Facts Do Not Excuse Lack of Strict Compliance

A. Reliance on Statutes and Forms

Intervenors attempt to justify their failure to comply with the constitutional and statutory requirements by claiming they faced a "Catch 22" situation because a conflict exists between the constitutional requirements of Ariz. Const. art. 4, pt. 1, § 1(9) and the statutory requirements of A.R.S. § 19-112(C). ⁴ As previously noted art. 4, pt. 1, § 1(9) requires the circulator's verification that the circulator believes the petition signers are qualified electors of the City of Scottsdale. Section 19-112(C) states that the circulator's affidavit "shall be in the following form," and the illustrated form's contents verify that the circulator believes "each signer is a qualified elector of the state of Arizona." Thus, Intervenors argue that they were faced with a "judgment call" and chose to follow the "mandatory" language of § 19-112(C) instead of the language in Ariz. Const. art. 4, pt. 1, § 1(9).

Intervenors also point out that the Secretary of State's sample petition form is in error. This sample petition form contains parenthetical information on the signature page indicating appropriate places to insert a city's name. The circulator's affidavit located on the back side of the sample petition form, however, does not contain any parenthetical information indicating that a city's name should be inserted instead of "the State of Arizona."

Intervenors, citing the "conflict" between constitutional and statutory provisions and the "error" in the secretary of state's sample petition form, essentially ask this court to overlook their petitions' constitutional infirmity. We cannot.

For several reasons, we do not believe that Interve...