Legal Appeal Referendum Wickenburg, AZ

Plaintiff responds to the Intervenor’s Motion for Summary Judgment and submits its Cross Motion for Summary Judgment upon the Memorandum of Points and Authorities, Statement of Facts and Exhibits and all items of record.[1]

At stake in this case is the time honored right of referendum. Courts are often quick to espouse platitudes of Arizona’s great tradition of referendum and initiative. However, in case after case, the courts continue to erode the right of referendum such that the average citizen may not refer legislation without expensive legal retainers and sophisticated word processing equipment. The right of referendum must have true substance or the rhetorical flourished of our courts are simply window dressing at a funeral for a fundamental Arizona Constitutional right. We can lament it passing and essential declare the right unavailable to the average elector or we can insure citizens properly exercise the right so that it remains a viable tool of our citizens. This case presents such an opportunity to insure the viability of the right, not is further erosion.

The primary issue before the court is how circulators convey the required summary of the referred ordinance to potential signers of the referendum. Intervenor complains that the summary was merely attached to the face sheet of the referendum rather set out in type on the page itself.[2] However, the record contains no allegations of wrong doing, such as substituting or omitting the required description. Intervenor does not complain that there was malfeasance of any kind by the circulators. With the County Recorder confirming adequate signatures to reach the ballot, the only recourse is to complain that the form must be elevated over substance. A sufficient number of voters in the Town requested that the ordinance be referred. That request is now supposedly trumped by a statutory form of “gotcha!”

Intervenor also insists the petitions were filed beyond the appropriate deadline. This argument is quickly disposed of by the declaration of Town Clerk Donna Riffel. She indicates that the ordinance was not available for public distribution until March 31^st, 2006. Thus the Plaintiff’s filing on April 20^th was well within the thirty day circulation period.

The critical issue confronting this court amounts to nothing more than an additional staple on the front of a referendum petition.

A. The Strict Compliance Standard Must Not Elevate Inconsequential “Errors” Over the Right to Refer Legislation.

Arizona Courts have long espoused that because a referendum is tantamount to a

“Citizen Veto”, an elector must have a virtually error free petition. A petition cannot be deficient of any requirements of the Arizona Constitution and must fully comply with all statutory mandates. See generally, Western Devcor Inc., v City of Scottsdale 168 Ariz. 426, 814 P.2d 767 (1991). The specific defect complained of in this case, contrasting from the Constitutional defect complained of in Westcor, is purported failure to somehow comply with the requirement of A.R.S. §19-101(A).[3] Prescribing the form of the referendum petition, the legislature has required circulators to include on every petition a brief description of the referred ordinance. Neither the Intervenor nor the Town complains the wording of the description was inaccurate, misleading or otherwise deficient. Nor do they assert that voters failed to see it or were otherwise prevented from reading the description. There is no claim that the petitions failed include an actual text of the referred ordinance. No challenge has been made to the qualifications of the circulators, nor that the signers were not registered voters.

Thus, virtually every principle evidenced by the Constitutional and statutory requirements were met. Voters had a summary description of the matter referred in front of them, and a full measure of the text attached. Circulators were qualified to circulate the petitions and the requisite number of Town electors signed the petitions. The Intervenor or the Town makes no claims of circulation improprieties. Therefore, an additional slip of paper is the only tool available to the Intervenor to defeat a legitimate referendum and vote of the people on the Town ordinance at issue.

B. The Penalty for Non-Compliance is Draconian, and Defeats the Right of Referendum for Electors Attempting to Refer Legislation.

Plaintiff is not advocating that the court throw out the standard of “strict compliance”. However, the standard must be looked at the context of the error complained of and the actual effect it has on the scrutinized petitions. The Arizona Supreme Court has held open the possibility that even with the presence of substantial defects, an opportunity to cure the defect exists and may therefore allow the referendum to continue. See, Direct Sellers Ass'n v. McBrayer 109 Ariz. 3, 503 P.2d, 951, (1972), providing for the amendment of circulators’ affidavits to cure the defect. See also, Western Devcor Inc., v City of Scottsdale 168 Ariz. 426, 814 P.2d 767 (1991), citing Direct Sellers with favor in dicta that a cure of circulator declarations may occur.

In the present case, the Plaintiff is not asserting that a practical cure of the alleged

fatal defect can occur. However, a practical evaluation of the alleged defect in the petition can occur in the context of “strict compliance” and allow the referendum to go forward.

Intervenor is quick to point out that courts must throw the baby out with the bath water to protect the process from abuse. The flaw in this argument is readably noticeable. The Plaintiff’s petitions presented a description to the potential signer on the front of the petition, accompanied by an attached copy of the ordinance. Plaintiff then gathered sufficient signatures to qualify the matter for the ballot. The Intervenor attempts to convince the court that elector’s ability to see and understand what is being referred was somehow compromised in this process merely because the description was attached to the to the face of the petition. There is no proof whatsoever that such ability was undermined with this particular petition. No one has come forth claiming petitions were presented without a description of the ordinance. No one has claimed that the circulators removed or altered the description. In fact, that point is undisputed. (See Plaintiff’s SOF ¶5,6&12. The best that the Intervenor can argue is an abstract argument that the description might be torn off or replaced, or inserted only just before filing of the petitions. (Intervenor’s Motion for Summary Judgment at 7-8.) Intervenor then goes on to assert how important an accurate description is to the “process”-an argument that in principle, Plaintiff does not dispute. However, that argument is much ado about nothing, There is no argument made in this case that the description presented to potential signers, was deficient in any way.

Curiously, Intervenor complains that Plaintiff had notice even without referring to the statute that a description must “…appear on the face of the each Petition signature sheet.” Intervenor’s SOF¶5. Well, Plaintiff did just that. There was no direction given to by the Town on how it was to appear. The description was indeed on the face of each petition signature sheet- merely stapled, not type set. (See Plaintiff’s SOF ¶5,6,13)

2. This court may allow the referendum to go forward and still protect the Strict Compliance standard.

The Plaintiff is not asking the court to read out existence a statutory requirement that a petition must have a description “inserted” on its face. Instead, Plaintiff asks the court to put the requirement in context of what has actually occurred. What Plaintiff is calling for is a temperate application of the doctrine on a case by case basis, in light of the error complained of and the effect such an error has on the integrity of the process or the ability to even exercise the right of referendum itself.

In this case, any potential signer saw everything he or she would have seen had the description actually been type set with the petition face itself. Absent allegations of wrongdoing, purposeful manipulation or negligent omissions of the description, the extraordinary power of the right of referendum is not being expanded. Other potential referrers may insulate themselves against these allegations by typesetting the description.

This too is an isolated case where the courts have not made a specific pronouncement on the issue presented. The circulators received vague advice from the Town Clerk, to merely have the description “on the face” of the petition. No court has yet to pronounce that failure to actually typeset the description is fatal. If that is indeed the requirement of all future referendums, while penalize the rights of these particular citizens who other wise exercised it properly and fulfilled the goal behind every requirement argued by the Intervenor.

If citizens must exercise the right of referendum perfectly, it amounts to no right at all. Statutes have vague commands, the forms and even the practices of the various election officials differ form jurisdiction to jurisdiction. In this specific case, the Town Clerk allowed a similar referendum to go to the ballot with the description attached to the face of the petition. (See Plaintiff’s SOF 11). In other jurisdictions, citizens have relied upon erroneous advice of government officials, forms that contradict statutes and Constitutional requirements, or erroneous forms supplied by election officials.[4] Petitions are often declared deficient despite the requisite number of signatures being obtained. In virtually every modern case, there is no allegation of fraud, collusion, illegalities or other chicanery on behalf of the petition circulators. The cases amount to game of “gotcha” as developers and municipalities comb through petitions with a fine tooth comb looking for a misstate as to its form. Then, invoking the “strict compliance” standard, courts repeatedly throw out petitions as being “deficient”.

There are two simple questions to ask. These questions insure that the right of referendum has substance and that the safeguards against abuse of this “citizens’ veto are securely in place. First, was the integrity of the process threatened? In the case of the Wickenburg referendum, there is no actual evidence of such a threat.

Second, as to the alleged defect in question, was specific safeguard reflected in the concern of the statute or the Constitutional provision met? In this case it most certainly was. Potential voters had before them a brief description referred ordinance as well as an attached copy of the complete ordinance itself. So if the integrity of the process is preserved and the concerns behind the statutory mandate is addressed, why declare this particular matter ineligible for the ballot? To serve as a warning to others attempting to exercise the right? The court can declare the matter eligible for the ballot, and still warn others that such “errors” may well be grounds for ineligibility in the future. Thus the court can effect a balance between exercising the Constitutional right of referendum and its extraordinary power to effectively “veto” duly passed legislation.

3. Intervenor’s final argument as to the form of the petition serves only to demonstrate the “gotcha” process so prevalent in referendum cases.

Intervenor’s final argument as to the form of the petition is easily dismissed. The Intervenor complains that the petitions failed to include the exact title of ordinance. In fact, the title was included, perhaps inartfully, but nonetheless included. “ We the undersigned…….order that the senate or (house) bill no. Ordinance 954…” . [5] The petition goes on to talk about the law originating in the “Common Council” in conjunction with the parenthetical phrase referring to the “town legislative body”. See Intervenor’s SOF, Exhibit 3. There can be no doubt the circulators were referring a local ordinance. Not only do they have the ordinance number on the face of the petition, its set out in the description and attached to each petition. See Intervenor’s SOF, Exhibit 4, where the description specifically refers to the “Town of Wickenburg Ordinance”. Thus, as with the issue of “attachment versus insertion”, potential signers had ample notice of the matter at hand. They clearly knew they were being asked to refer a local ordinance passed by the “Common Council” of the Town of Wickenburg. To argue otherwise simply carries the “strict compliance scheme to an extreme never contemplated by the courts.

A. The Wickenburg Town Clerk Did Not Have the True and Correct Copy of the Ordinance Available Prior to March 31^st, 2006.

There is no dispute that the ordinance in question was passed on the evening of March 20^th, 2006. Intervenor claims that the ordinance was thus “available” within the meaning A.R.S. §19-142(C) and the clock begin to run on the evening of March 20^th. Thus, Plaintiff had until April 18^th, according to the Intervenor, to file any petitions attempting to refer the ordinance. Therefore, the filing on the 20^th was untimely. This argument fails on two fronts.

First and foremost, the ordinance was not available until March 31^st. The declaration of Town Clerk Donna Riffel makes that abundantly clear. In fact, she refused to give the ordiance out to the public because it was not available for public distribution. (See Plaintiff’s SOF ¶9,10.) Therefore, if the ordinance was not going be given to anybody prior to the 31^st of March, an April 20^th filing of petitions was well within the thirty day window.

Secondly, Intervenor then anticipates that Plaintiff would argue that no legal description was available until at least the 31^st of March. (In light of Clerk Riffel’s declaration, such an argument may very well be moot in any event, See Plaintiff’s SOF, Exhibit 2.) However, it is well established that a court may not excuse a referendum proponent from providing an accurate “legal description” of the property. But what constitutes a “legal description” is vague and no bright line test exits. In fact, the one Arizona case on the subject strongly suggests that a “metes and bounds” legal description is wholly inadequate to attach to the re-zoning request. “This technical narrative does not give the average reader of a referendum petition clear notice of the location of the property.” Lawrence v Jones 199 Ariz. 446, at 462, 18 P.3d 1245 at 1250 (App. 2001).

The Lawrence court further notes that although the statute requires attachment of a legal description, it gives a referendum proponent no clear guide on what constitutes a valid description. The court then adopts as persuasive the reasoning provided to the Mesa City Counsel by its attorney:

Particularly in the context of a referendum, I believe a sufficiently detailed map, similar to the one attached to Mesa's zoning ordinance and the citizen's referendum in this case, more than meets the statutory requirement for a legal description of the property in question.

Here, the controlling statute requires that potential petition signers have available to them a legal description of the property that is the subject of the rezoning and referendum. The Legislature did not specify a particular type of legal description--although the Legislature was free to do so if it chose.

So, the critical statutory construction question becomes one of legislative intent: "Why, in the first place, did the Legislature create a requirement for a legal description of the property subject to a zoning referendum?" By requiring a legal description of the property ..., the manifest intent of the Legislature was to make sure that petition signers had an opportunity to learn about the parcel of land being rezoned. Location, location, location is self-evidently critical to land use and referendum decisions. Id.at 452.

Arguably under Lawrence, even a metes and bounds legal description is inadequate to inform voters of the location of the property being referred. Intervenor argues that the ordinance itself contained a reference to the property’s county assigned assessor’s number and thus voters would have a legal description from which to identify the property in question. If an abstract metes and bounds description is likely inadequate, how on earth could a simple assessor’s parcel adequately identify the property? Thus at a minimum, it is clear that no adequate legal description existed at the time of the ordinances passing. Town Clerk Donna Riffel knew this and thus refused to distribute a “true and correct copy” of the ordinance until March 31^st, 2006.

Finally, Intervenor argues the proposition that it is not incumbent upon the election official to provide attachments, citing Robson Ranch Mountains LLC v Pinal County, 203 Ariz. 120, 51 P.3d 342 (App. 2002). In the first instance Robson is distinguishable because unlike in the present case, there is no dispute that copies of the ordinances were available from the clerk on the night they were passed. Id at 124.

It is clear from the Wickenburg Town Clerk that she was not in a position to provide a true and correct copy of the ordinance to anyone before May 31^st. Robson does indeed go on to conclude that a referendum applicant has the ultimate duty to obtain the appropriate attachments. However, that was within the context of the applicant relying on an election official that the court found had no statutory duty to provide the applicant with the appropriate documents. Id at 128. There can be no argument from the Intervenor that the Town Clerk of Wickenburg had that statutory duty to provide a true and correct copy of the ordinance if asked for it. In her opinion, it was not available until March 31^st. (See Plaintiff’s SOF ¶9,10) Surely, Intervenor is not suggesting that a referendum applicant go out and hire a surveyor to obtain the correct legal description of the property being re-zoned. In any event, only the Town Clerk can certify that the legal description is indeed the correct one.

Finally, in light of Intervenor’s argument, Plaintiff would now contend that the ordinance is still referable and the 30 day period under A.R.S §19-142(C) & (D) is tolled. Lawrence makes it abundantly clear that there must be some identifying documents to easily identify the land in question. As previously mentioned, the court readily cast doubt on whether a metes and bounds legal description could indeed fulfill the requirement. The referendum proponents in Lawrence attached an “official zoning” map of the area to be re-zoned. The Mesa City Attorney, argued:

A picture is worth a thousand words, especially when those words--as in a metes and bounds form of legal description or an assessor parcel number form of legal description--are legalese, real estate-ese or otherwise technical words that are foreign to most potential petition signers. Unless potential petition signers happen to specialize in land surveying, a narrative legal description is not only uninformative, it is decidedly unhelpful in fulfilling the manifest legislative intent of providing useful and meaningful information to potential petition signers. Lawrence v Jones 199 Ariz. 446, at 452, 18 P.3d 1245 at 1251 (App. 2001)

We acknowledge that a "technical, narrative form of legal description" might necessarily be required in a variety of other contexts, such as a real estate dispute to determine boundary or ownership interests by reference to records maintained by the County Recorder, or in a taxation dispute involving comparison of records maintained by the County Assessor, or in an attempt to create a lien against specific property. See, e.g., Bryan v. Nelson, 180 Ariz. 366, 884 P.2d 252 (App.1994) (holding street address is insufficient "legal description" to create a lien by dissolution decree pursuant to A.R.S. section 25-318(A)). However, we find nothing inherent in the context of A.R.S. section 19-121(E) that requires, "legal description" to be interpreted to mean a hypertechnical recitation of property boundaries that would have no meaning or relevance to the citizens considering the petition. Id.

Thus, the only clear guidance from the courts on this issue leads to the logical conclusion that the governing body must include a zoning map to provide meaningful information to the potential signers of the petition. Thus, if the Intervenor prevails in arguing that the legal description need not be available then something sufficient to provide “meaningful information” must be. Lawrence makes it abundantly clear that the metes and bounds legal description is wholly inadequate for that purpose. If there was no proper legal description then the Plaintiff’s circulation exercise is moot and the clerk must provide a meaningful description of the property being re-zoned in order for the 30 days to begin running.

This court must allow the referendum to proceed. No threat to the integrity of the process is evident. No Constitutional provisions are being ignored. Plaintiff merely interpreted the dictates of the statute and indeed the direction from and past practices of the Town Clerk as allowing the required description to be stapled to the front of the petition. All potential signers saw the description. All had available to them the text of the ordinance attached to each petition. Thus, no harm was done to the Constitutional and statutory mandates that a potential signer understand what it is they are signing.

Nor were the petitions filed after the clock ran out. The Town Clerk had nothing to give any potential referendum applicant until March 31^st. The petitions were turned in with ten days to spare.

Finally, this court must ponder perhaps the unintended consequences of the Intervenor’s arguments. Without a clear and intelligible description of the property available in any form, has not the time for referring the ordinance been effectively tolled? If so, the court must declare the complaint moot as a matter of law, and declare the ordinance not yet in effect until a meaningful description of the property is available from the Town Clerk.

[1] This response and cross motion is filed several days out of time by agreement with all parties due to the unavailability of Town Clerk Donna Riffel’s declaration until after the initial response time had passed.

[2] A referendum in the Town of Wickenburg on a similar zoning request in 2005, by the Intervenor, was accepted without challenge by either the Intervenor or the Town. The referring citizens attached a description of the summary on that particular petition, as did the Plaintiff in this matter. The ordinance was rejected by the electors in a Special Election. PSOF ¶ 11

[3] Intervenor mis-characterizes the omission in Western Devor. The Court found the petitions to be invalid because the circulators complied with a form versus the Constitutional requirement (also reflected in statute) that circulators indicate that signers were qualified electors in the correct governmental entity, (county, city or town). Western Devcor, 168 Ariz. at 429, 814 P.2d at 770.

[4] See, Robson Ranch Mountains LLC v. Pinal County, 203 Ariz. 120, 51 P.3d 342 (App. 2002) , throwing out a petition because circulators relied on advice of county elections officials in error; Westcor Dev. Inc. v City of Scottdale, 168 Ariz. 426, 814 P.2d 767 (1991), invalidating petitions despite circulators’ contention they relied on forms given to them by the city election official; De Szendeffy v. Threadgill, 178 Ariz. 464, 874, P.2d 1021 (App. 1996), throwing out petitions based on erroneous forms given to citizens by the town clerk.

[5] This is the actual number of the Town Council’s ordinance. The bolded text was actually hand written into the space on the form of the petition. See Intervenor’s SOF, Exhibit 3.