Intervenor,
Pinal Citizens For Sustainable Communities, Inc. (“PCSC”), petitions for
review in the Arizona Supreme Court from the July 18, 2002 decision of
the Court of Appeals which is attached as Appendix 1.
I. ISSUES
DECIDED BY THE COURT OF APPEALS AND PRESENTED FOR REVIEW.
1. Whether
the Court of Appeals’ decision that the referendum petitions submitted
in both the Anam and Robson rezoning matters were untimely filed under
A.R.S.§ 19-142 is erroneous and contrary to law.
II. ISSUES
PRESENTED TO THE COURT OF APPEALS BUT NOT DECIDED BY THE COURT OF APPEALS.
1. Whether
the trial court properly found that referendum petitions are not defective
because they refer two zoning ordinances relating to the same development
proposal as offered by each Appellant.
III. FACTS
MATERIAL TO THE ISSUE WHICH IS PRESENTED FOR REVIEW.
The
Opinion recites the essential facts of each case.
IV. REASONS
WHY REVIEW SHOULD BE GRANTED.
No
Arizona case analyzes the relationship between A.R.S. §19-141 and
§19-142 with regard to referenda at the county level. A.R.S. §19-111
defines the duties of the secretary of state at the state level and clearly
provides that there is only one governmental officer referendum proponents
must interact with in applying for and submitting petitions. In
1996, the Legislature specifically amended A.R.S.§ 19-141(A) to designate
the county’s officer in charge of election as the person for county initiative
and referendum interaction, the same as the Secretary of State at the state
level. Despite A.R.S. §19-141(A), the Court of Appeals nevertheless
interprets A.R.S. §19-142 to mean that the director of elections fulfills
some, but not all of the duties prescribed for governmental officers at
the county level and that a second governmental officer, namely the clerk
of the board of supervisors, fulfills the remaining obligations for referenda
at the county level.
This
case presents serious issues of first impression. The
public’s right to circulate referendum petitions is constitutionally protected. The
Court of Appeals’ decision is contrary to A.R.S. §19-141(A) and is
so unreasonable that the right to referendum is frustrated. Therefore,
the Court should exercise its discretion to accept jurisdiction.
V. ARGUMENT
THE
COURT OF APPEALS ERRED IN HOLDING THAT A.R.S. §19-142 APPLIES AND
NOT A.R.S.§ 19-141 TO REQUIRE PCSC TO OBTAIN THE MATERIALS FOR CIRCULATION
FROM THE CLERK OF THE BOARD OF SUPERVISORS.
1. A.R.S.
§19-141(A) Requires the Director of Elections to Supply a Referendum
Petition Proponent with a True and Correct Copy of the Materials for Circulation.
A.R.S.§
19-141(A) provides as follows:
The
provisions of the chapter shall apply to the legislation of cities, towns
and counties, except as specifically provided to the contrary in this article. The
duties required of the secretary of state as to state legislation shall
be performed in connection with such legislation by the city or town clerk,
county officer in charge of elections or person performing
the duties as such. ***” (emphasis
added)
Under
this section, the county officer in charge of elections is responsible
for “such legislation” that is referable at the county level. The
designation of the county officer in charge of elections is specific. The
statute does mention “the clerk of the board of supervisors.” Undisputably,
Mr. Hoyos is the person appointed by the Pinal County Board of Supervisors
as the County Elections Director. In appointing an elections officer, the
Board of Supervisors delegated all election duties to Mr. Hoyos.
The
Court of Appeals found that because copies of the ordinances approving
each rezoning were available from the clerk of the board of supervisors
on or shortly after each rezoning ordinance was passed, the time period
for circulating the petitions began on the date each rezoning ordinance
was available from the clerk of the board. The Court of Appeals misinterprets
the applicable provisions of Title 19 governing initiative and referendum
at the local level. It found
A.R.S.§ 19-141(A) inapplicable and interpreted A.R.S.§ 19-142(C)
instead. A.R.S. §19-142(C)
provides as follows:
C. At
the time a person or organization intending to file a referendum petition
against an ordinance or resolution applies for the issuance of an official
number pursuant to section 19-111, the city or town clerk
shall provide such person or organization with a full and correct copy
of the ordinance or resolution in the form as finally adopted. *** (emphasis
added)
Section
19-111 referred to in the above-quoted language specifies the duties of
the Secretary of State concerning initiative and referendum. It is readily
apparent that such duties of the Secretary of State are intended to be
performed by the county officer in charge of elections. Moreover,
as A.R.S.§ 19-141(A) expressly instructs: “[t]he
provisions of the chapter shall apply to the legislation of cities, towns
and counties, except as specifically provided to the
contrary in this article. (emphasis added)
A.R.S.§
19-142(C) on its face refers only to city or town clerk, and does not mention
counties or the clerk of the board. Accordingly, it cannot be argued that
it is “specifically provided to the contrary in this article.” It
is therefore unquestionable that A.R.S.§ 19-142(C) does not empower
the clerk of the board to provide the ordinance in a referendum and such
duties are not encompassed in A.R.S.§ 11-241(9).
The
Court of Appeals went astray in its holding that the clerk of the board
is responsible for providing the referred measure by citing the case of
Pioneer Trust Co. v. Pima County, 180 Ariz. 34, 37, 881 P.2d 366,
369 (1991). However, Pioneer
Trust does not govern this case because it was decided by this Court
before the legislative adoption of the present A.R.S.§ 19-141(A) in
1996. See infra.
The
Court of Appeals also cites State v. Oakley, 180 Ariz.
34, 881 P.2d 366 (1994) as authority for its interpretation. In Oakley,
A.R.S.§ 19-141 was not mentioned or implicated. A.R.S.§
19-142 was cited as authority that A.R.S.§ 19-142(B) which mentions
only cities and towns, was equally applicable to the Board of Supervisors’
actions. The Oakley decision did not concern the role of the county
officer in charge of election vis a vis the clerk of the board of supervisors. Oakley
was also decided prior to the 1996 amendment to the present A.R.S.§
19-141. See infra.
It
is therefore clear that the Court of Appeals’ reliance on Pioneer Trust
and Oakley is mistaken.
2. In
Adopting and Later Amending A.R.S.§ 19-141(A), The Legislature Intended
to Designate The Director of Elections as The County Officer Responsible
For Performing The Duties of The Secretary of State.
Substantial
changes to referendum procedures at the local and county level have been
adopted over the years. Prior
to 1991, A.R.S. §19-144 existed which provided as follows:
Referendum
petitions against an ordinance, franchise or resolution passed by the board
of supervisors of a county and initiative petitions for an ordinance, franchise
or resolution may be filed under the provisions of this article with the
board of supervisors. All
duties required of the city or town clerk shall be performed by the clerk
of the board of supervisors, *** emphasis added.
Importantly,
in 1989, the legislature added §19-142(C) as follows:
C. At
the time a person or organization intending to file a referendum petition
against an ordinance or resolution applies for the issuance of an official
number pursuant to Section 19-111, the city or town clerk shall provide
such person or organization with a full and correct copy of the ordinance
or resolution in the form as finally adopted. If
the copy of the ordinance or resolution proposed as a referendum is not
available to such person or organization at the time of making application
for an official number or on the same business day as the application is
submitted, the thirty-day period specified in subsection A begins on the
day that the ordinance or resolution is available from the city or town
clerk, and the ordinance or resolution shall not become operative until
thirty days after the ordinance or resolution is available.
Laws
1989, Ch. 10, attached as Appendix 2.
As
of 1989, the legislature stated directly that (1) the clerk of the board
of supervisors performed all duties required of the city or town clerk;
(2) the city or town clerk was required to supply petition proponents with
a copy of the measure as finally adopted for circulation with the referendum
petition and (3) that the 30 day time period for circulating a referendum
petition did not begin until the city or town clerk (and clerk of the board
of supervisors) could provide such materials to the referendum proponent.
As
part of a comprehensive overhaul of the initiative and referendum statutes,
the legislature repealed A.R.S. §19-144 in 1991 and amended §19-141(A)
to provide for referendum at the county level. The amended §19-141(A)
provided:
A. The
provisions of this chapter shall apply to the legislation of cities, towns
and counties, except as specifically provided to the contrary in this article. The
duties required of the secretary of state as to state legislation shall
be performed in connection with such legislation by the city or town clerk,
clerk of the board of supervisors or person performing the duties
as such.
Laws
1991, 3rd S.S. Ch. 1, §21, eff. Nov. 4, 1992, emphasis added, attached
as Appendix 3. The report of
the Assistant Attorney General to the legislature’s Election Reform Study
Committee dated August 30, 1991 states that the amendment to §19-141(A)
was designed to “clarify how the foregoing requirements and duties apply
to cities, towns and counties to provide for consistency and uniformity.
Appendix 4.
In
1996, A.R.S. §19-141(A) was amended again, this time to remove
all references to the clerk of the board of supervisors as the responsible
county officer and to substitute instead the elections officer as
follows:
A. The
provisions of this chapter shall apply to the legislation of cities, towns
and counties, except as specifically provided to the contrary in this article. The
duties required of the secretary of state as to state legislation shall
be performed in connection with such legislation by the city or town clerk,
county officer in charge of elections or person performing the duties
as such. *** Distribution of
pamphlets shall be made to every household containing a registered voter
in the city or county, so far as possible, by the city or town clerk or
by the county officer in charge of elections either by mail or carrier,
not less than ten days before the election at which the measures are to
be voted upon. Emphasis added.
Laws
1996, Ch. 271, §28, eff. Apr. 23, 1996, attached as Appendix 5.
The
statutory history demonstrates the legislature’s intent to remove the clerk
of the board of supervisors as the responsible county officer to perform
any duties with respect to referendum and to substitute instead the elections
officer. By specifically removing
the clerk of the board of supervisors as the responsible officer in 1996
and substituting the elections officer as the responsible county officer,
the legislature deliberately changed the person responsible for performing
referendum duties. The legislature
is presumed to know the consequences of the changes it makes to statutes
and to have intended such consequences. Hause
v. City of Tucson, 199 Ariz. 499, 19 P.3d 640 (App. 2001).
Moreover,
The Court of Appeals’ opinion, replacing
the election director with the clerk for referendum purposes, renders,
in significant part, A.R.S.§ 19-141(A)’s language, “[t]he duties required
of the secretary of state as to state legislation shall be performed in
connection with such legislation by the *** county officer in charge of
elections . . “ meaningless. As
this Court said in State
v. Pitts, 178 Ariz. 405, 405, 874 P.2d 962, 963 (1994):
The
statutory interpretation utilized by the court of appeals would render
meaningless the portion of the statute referring to ***We presume the legislature
did not intend to write a statute that contains a void, meaningless, or
futile provision. (citations omitted)
3. Alternatively,
the Director of Election, Mr. Hoyos, a County Officer, Represented Himself
to Be the Officer Responsible for Providing the Referendum Materials and
Such Representation Binds the County Board of Supervisors and the County
Clerk.
"
\l 2
It
is undisputed that Mr. Hoyos represented himself as the county officer
in charge of referendum petitions and undertook to obtain the ordinances
from the clerk of the board as he understood his duties. Intervenor
innocently relied on such representation. Mr.
Hoyos provided Intervenor with
both ordinances and informed them as to the filing deadline. Intervenor
acted strictly in accordance with Mr. Hoyos’ directions.
Assuming,
arguendo, that Mr. Hoyos lacked such authority, the Intervenors,
public citizens, should not suffer the consequence of Mr. Hoyos’ deeds. Although
Intervenor believes that Mr. Hoyos has authority under A.R.S.§ 19-141(A)
for his action, Mr. Hoyos, by holding himself out as the person in charge,
with the knowledge of Pinal County and the clerk of the board,
has the de facto authority to act. Such
de facto power renders his acts valid and the Intervenor’s reliance valid.
In Jennings v. Woods, 194 Ariz. 314, 332, 982 P.2d 274, 292 (1999),
this Court held that:
It
is now settled, that the official acts of the incumbent of an office, with
whom alone the public can, under the circumstances, transact business,
shall be regarded as legal. The affairs of society could not be carried
on in any other way than by treating as valid the official acts of [a]
person de facto in office.”
In State
ex rel. Nelson v. Jordan, 104 Ariz. 193, 196, 450 P.2d 383, 386 (1969)
the Court stated:
We
have said that a de facto officer is one whose acts though not those of
a lawful officer are held valid so far as they involve the interests
of the public and third persons. Rogers
v. Frohmiller, 59 Ariz. 513, 130 P.2d 271. (emphasis added)
Mr.
Hoyos has the apparent authority to provide Intervenor with the referendum
materials. His acts are therefore valid and Intervenor properly relied
on them . The case of Perini Land and Dev. Co. v. Pima
County, 170 Ariz. 380, 825 P.2d 22 (1991) is inapposite. In
Perini, the petitioner relied on the information provided by the
Pima County Director of Elections about the number of signatures necessary
for the referendum and that information was incorrect because it was not
based on the number of votes cast at the intervening general election after
the petitions were taken out but before they were filed. The Court held
that the number of signatures was mandated by the constitution and the
constitutional provision was clear. Here,
there is no constitutional question as to who can act as the county officer in
referendum matters. Such decision
is legislative and as demonstrated, A.R.S.§ 19-142 does not evidence
legislative intent that the clerk of the board of supervisors is given
that power. Instead, the elections
officer is given this power.
4. While
this Court Has Held That Referendum Proponents must Comply Strictly with
Applicable Constituional and Statutory Provisions, Strict Compliance Does
Not Operate to Disadvantage Proponents Who Have Not Violated Any Constitutional
or Statutory Provisions.
The
Court of Appeals’ holding unjustly frustrates the ability of petition proponents
at the county level. It is contrary to well established public policy and
judicial interpretation that the constitutional protections afforded the
public through referendum should be broadly construed. In
fact, inclusion of referendum rights in the state Constitution was so important
that it became a "burning issue" for the Constitution's drafters. In
1989, the Arizona legislature declared its public policy for initiative
and referendum matters in a preamble:
The
right of initiative and referendum shall be broadly construed. If
there is doubt about requirements of ordinances, charters, statutes or
the constitution concerning only the form and manner in which the power
of an initiative or referendum should be exercised, these requirements
shall be broadly construed, and the effect of a failure to comply with
these requirements shall not destroy the presumption of validity of citizens
signatures, petitions of the initiated or referred measure, unless the
ordinance, charter, statute or constitution expressly and explicitly makes
any fatal departure from the terms of the law.
1989
session laws, Ch. 10, §1, emphasis added.
Similarly,
this Court stated in Pioneer Trust Company of Arizona v. Pima County,
168 Ariz. 61, 66, 811 P.2d 22, 27 (1991) that referendum “is a case of
legislative review by the people, an action that the Arizona Constitution
and statutes strongly encourage.” See
also Queen Creek Land & Cattle Corp. v. Yavapai County Bd. of Supervisors,
108 Ariz. 449, 501 P.2d 391 (1972) (constitutional reservation of initiative
and referendum powers establishes electorate as coordinate source of legislation
with constituted legislative bodies); Whitman v. Moore, 59 Ariz
at 218, 125 P.2d at 452 (1942) (opinion of delegates who adopted and signed
constitution was that powers of initiative and referendum were among the
constitution’s most important provisions).
Instead
of interpreting the statutes to encourage referendum,
the Court of Appeals interpreted them so as to completely eviscerate Intervenor’s
efforts.
CONCLUSION
More
than 5,000 people signed each petition expressing their desire to place
the issues on the ballot. Their
voices should be upheld and the trial court’s decision should be affirmed
by this Court. PCSC respectfully requests that the Court accept review,
vacate the opinion of the Court of Appeals and reinstate both issues on
the ballot.
Respectfully
submitted this day
of August, 2002.
Raven
& Awerkamp, P.C.
Anne
C. Graham-Bergin
email:mekazda@mindspring.com