COMMITTEE FOR PRESERVATION OF ESTABLISHED NEIGHBORHOODS,  A duly authorized campaign committee,   Appellant,   Vs   DONNA RIFFEL,  in her official capacity as Town Clerk for the Town of Wickenburg.   And   WICKENBURG COUNTRY CLUB ESTATES   Appellees	Arizona Court of Appeals Division One No. 1 CA CV 06-0443   LC2006-000342-001T Maricopa  County Superior Court   OPENING BRIEF OF PLAINTIFF/APPELLANT COMMITTEE FOR PRESERVATION OF ESTABLISHED NEIGHBORHOODS

 

JURISDICTION OF THIS COURT.

This Court has jurisdiction of this appeal pursuant to the Ariz. Const. art. 6, § 5(3) and ARS §§ 12-121.03 and 19-122(C).  The Court has harmonized the concurrent jurisdiction of two statutes[1] providing different appellate review procedures for appeals of referendum decisions of the Arizona Superior Court by indicating its intention to transfer referenda cases to the court of appeals.[2] 

I.                   STANDARD OF REVIEW.

When a trial judge grants a motion to dismiss, the appellate court will affirm only if the facts pled by Appellant--and assumed to be true--fail to state a claim upon which relief can be granted.[3] 

II.                QUESTION PRESENTED FOR REVIEW.

A.     Has the Appellant properly complied with the statutory requirements for referendum petitions?

B.     If Appellant has complied, was the referendum timely filed?

C.     Was the legal description provided by the Town Clerk a sufficient description of the property effected by the ordinance?

III.             STATEMENT OF FACTS.[4]

On April 11^th, 2006 Appellant applied for a referendum petition from the Town of Wickenburg.  Appellant was seeking to refer a re-zoning ordinance approving a planned area development.  By April 20^th, Appellant had the requisite number of signatures and submitted them to the Town Clerk.  The Maricopa County Recorder verified that the petitions contained sufficient valid signatures to qualify the referendum for the ballot.  However, the Town Clerk subsequently rejected the petitions as not complying with the statutory requirements for referendum petitions.  Appellant then filed a complaint in mandamus asking the court to direct the Town Clerk to certify the referendum and placed it on the ballot[5].  Appellee/Intervenor filed a Motion for Summary Judgment in which the Appellee/Town  partially joined.[6]  Appellee responded and the court ruled without oral argument or reply.[7]  The electors of Wickenburg had previously rejected a similar re-zoning ordinance for the same property through an earlier referendum. In the earlier referendum, the Town Clerk did not challenge or dispute the form of the referendum petition in the earlier referendum.  Appellant, following the form of the previously approved referendum petition, stapled a narrow strip of paper to the front of the petition, describing the matter being referred in the requisite number of words. [8]

Appellant also hand wrote the reference to the ordinance being referred in the body of the preamble to the signature block on each petition, stating  that “We the undersigned…….order that the senate or (house) bill no. Ordinance 954…” . [9]  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” which is then identified as “Town of Wickenburg.” [10]

Appellees have not argued that the description stapled to the front of each petition was inaccurate.  There have been no claims of malfeasance in the circulation of the petitions, such as failing to include the summary description on the petition.  Each petition clearly identified the matter being referred by the summary, and the ordinance number.  Instead,  Appellee/Intervenor summary judgment focused on the alleged technical non-compliance with the requisite statutes- failure to “insert” the summary description  and lack of proper identification of the ordinance.[11]

 Appellee/Intervenor raised an additional argument of timeliness which Appellee/Town of Wickenburg did not join.  Insisting the ordinance was available on the evening of its passage, March 20^th, 2006, Appellee/Intervenor argued in the trial court that the April 20^th filing was thus one day to late. However, the declaration of Town Clerk Donna Riffel  indicates that the ordinance was not available for public distribution until March 31^st, 2006 due to the lack of legal description.[12] No other map or description of the property was available other than an accessor’s parcel number referenced within the ordinance itself.    Thus, Appellant contended in the trial court that the filing on April 20^th , 2006  was well within the thirty day circulation period.[13]

The trial court found that the petitions failed to comply with A.R.S. § 19-19-101(A) by stapling rather than “inserting” the text onto the face of the petition.  The court also found that the ordinance was not sufficiently described.  Appellant then took this appeal.

LEGAL ARGUMENT

            I.  THE EROSION OF THE RIGHT OF REFERENDUM. 

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

  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.  The right must be practically accessible to the electors or the rhetorical flourished of our courts are simply window dressing at a funeral for a fundamental Arizona Constitutional right.  We can lament the practical death of the right and declare the right unavailable to the average elector. Or perhaps   we can insure citizens properly exercise so as to avoid  abuse and have the right remain 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.  Appellees complain that the summary was merely attached to the face sheet of the referendum rather set out in type on the page itself.[14]  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 of a foul that resulted in no harm-no harm to the Constitution, the Town or the electors.  A sufficient number of voters in the Town requested that the ordinance be referred.  The right of the electorate to decide the fate of the ordinance is now denied by nothing more than a  statutory form of “gotcha!”     

II.                THE “STRICT COMPLIANCE” STANDARD. 

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

Arizona Courts have long held 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.[15]  The specific defect complained of in this case, contrasting from the Constitutional defect complained of in Westcor, is the purported  failure to somehow comply with the requirement of A.R.S. §19-101(A).[16]  Prescribing the form of the referendum petition, the legislature has required circulators to include on every petition a brief description of the referred ordinance.  Appellees do not complain 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  to 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.

Appellant 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 to allow the referendum to continue.[17] If a cure is palatable within the strict compliance standard, then inconsequential mistakes must be looked at with the precision of a scalpel and not of a meat axe.

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. 

            1.  There is no “abuse” of the process by the Plaintiff.

            Appellee 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 Wickenburg  referendum petitions presented a description to the potential signer on the front of the petition, accompanied by an attached copy of the ordinance.  Appellant  then gathered sufficient signatures to qualify the matter for the ballot.   The  Appellees 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 face of the petition.  

2.   There is no proof whatsoever that the elector’s ability to comprehend the request for referral was undermined with this particular petition.   

No one has come forth claiming petitions were devoid of any  description of the ordinance.  No one has claimed that the circulators removed or altered the description. In fact, that point is undisputed.[18] The best that Appellees can do is argue in the  abstract that the description might be torn off or replaced, or inserted only just before filing of the petitions.[19]  Appelles go  on to assert how important an accurate description is to the “process”-an argument that in principle, Appellant 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, Appellees then complain that  Appellant had notice even without referring to the statute that a description must “…appear on the face of the each Petition signature sheet.”[20].   Plaintiff did just that. The description was indeed on the face of each petition signature sheet- merely stapled, not type set.  No direction was given to the Appellant  by the Town on ­how the description was to appear. [21]

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

         Appellant is not asking the court to read out existence a statutory requirement that a petition must have a description “inserted” on its face.  Instead, the court must put the requirement in context of what has actually occurred. Appellant is calling for a temperate application of the strict compliance 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 one  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.

            These  facts also present a case of first impression. Arizona courts  have not made a specific pronouncement the consequences of “staple” versus “insert”.  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 typeset the description is fatal.  If that is indeed the requirement of all future referendums, why penalize the rights of these particular citizens who other wise exercised it properly and fulfilled the goal behind every requirement argued by the Appellees.

            If citizens must exercise the right of referendum perfectly, it amounts to no right at all.  Statutes have vague commands.  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.[22]  In other municipal and county jurisdictions, citizens have relied upon erroneous advice of government officials, forms that contradict statutes and Constitutional requirements, or erroneous forms supplied by election officials.[23] Petitions are  declared deficient despite the requisite number of signatures being obtained.  In every modern case, there is no allegation of fraud, collusion, illegalities or other chicanery on behalf of the petition circulators.  The cases all amount to game of “gotcha” as developers and municipalities comb through petitions with a fine tooth comb looking for the slightest mistake as to its form.  Then, invoking the “strict compliance” standard, courts repeatedly reject petitions as being “deficient”. 

A proper inquiry in referendum cases  invites two basic questions.  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 or proof or even allegation of such a threat.

Second, as to the alleged defect in question, was specific concern reflected in the  statute or the Constitutional provision met?  In this case it most certainly was.  Potential voters had before them a brief description of the 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 mandates are safeguarded,  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 affect a balance between exercising the Constitutional right of referendum and its extraordinary power to effectively “veto” duly passed legislation. 

4.        Appellees final argument serves only to demonstrate the “gotcha” process so prevalent in referendum cases.

Appellees  final argument as to the form of the petition is easily dismissed.  The Intervenor/Appellant 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…” . [24]  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. The description specifically refers to the “Town of Wickenburg Ordinance”.[25]   Thus, as with the issue of “attachment versus insertion”, potential signers were well aware of what the circulators’ request of them.  They clearly knew the request was 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. 

            The trial court merely made mention that the description of the ordinance was insufficient, failing to address the issues raised by Appellant. [26]

There has to be an outer limit to the application of the “strict compliance” standard.  Appellant would assert this case stands at that limit.  The circulators met every single concern reflected by the Constitution and state statutes.  The petitions had more then enough information for any potential signer.  The summary description was  adequate in all respects.  Clearly, an ordinance passed by the Common Council of the Town of Wickenburg was at issue.  Appellees cannot deny any of this.  Instead, they must waive the banner of strict compliance, calling for sacrifice of the citizens’ right of referendum as the only cure for imperfection.  Such a result in this case is absurd.  The court must not be seduced by the simplicity of the strict compliance standard and must apply it in this case with intellectual precision. 

II. THERE IS NO ISSUE AS TO THE TIMELINESS OF THE REFERENDUM

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.  Appellee/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. [27]  Thus, Appellee had until April 19^th, according to the Appellee/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 ordinance out to the public because it was not available for public distribution.[28]  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.

            B.  The March 20^th Ordinance Did Not Contain an Adequate Legal Description. 

Appellee/Intervenor anticipated in its argument to the trial court that Appellant would argue that no legal description was available until at least the 31^st of March.  Appellant also acknowledges the fact 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.”[29] 

   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. [30]

 

            Arguably under Lawrence, even a metes and bounds legal description is inadequate to inform voters of the location of the property being referred. Appellee/ 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. However, if an abstract metes and bounds description is  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 when the ordinance was passed.  Town Clerk Donna Riffel knew this and thus refused to distribute a “true and correct copy” of the ordinance until March 31^st, 2006 when the survey became available.[31]

            Finally, Appellant/Intervenor argued in the trial court that case law makes it clear that it is not incumbent upon the election official to provide attachments.[32] In the first instance, Appellee’s authority is distinguishable. Unlike the present case, there was no dispute in Robson that copies of the ordinances were available from the clerk on the night they were passed.[33] In the present case, 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 March  31^st. [34] 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 -one whom  the court declared had no statutory duty to provide the applicant with the appropriate documents.[35]  There can be no argument from the Intervenor/Appellant that the Town Clerk of Wickenburg had no statutory duty to provide a true and correct copy of the ordinance if asked for it.  In her opinion, the true and correct copy was not available until March 31^st. Surely, Appellee/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.

Thus, there is no real argument the matter could not have been referred any sooner than March 31^st, 2006.  There was no adequate  legal description until then.  Appellant has no independent duty to create a document and must rely on the documents provided by the municipality.  With only a parcel number available until March 31^st, no adequate description existed.  Filing the petitions on April 20^th , was therefore well within the thirty day time period.

III.             THE PARCEL NUMBER AND OR THE METES AND BOUNDS LEGAL DESCRIPTION IS INADEQUATE AS A MATTER OF LAW.  

A.   A Metes And Bounds Description Or Parcel Number Is Not An Adequate Description Of The Property.

             The only description available to the Appellant was a parcel number and later, a metes and bounds survey.  Lawrence makes it abundantly clear that there must be some identifying documents to easily identify the land in question.  As previously mentioned, Lawrence readily casts 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.[36]

 

            The trial court and the Court of Appeals agreed with the City’s reasoning.

 

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.[37]

           

            Thus, if the only legal description available to the Appellant was a “hypertechnical recitation of property boundaries that would have no meaning or relevance,”[38] there was and still is nothing to refer to the citizens of Wickenburg. 

B.  Failure To Provide A Sufficient and Meaningful  Legal Description Tolls The Effective Date Of The Ordinance.

The only clear guidance from the courts on the description 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. [39]

            CONCLUSION

            This court must allow the referendum to proceed.  No threat to the process exists.   Wickenburg electors have not ignored Constitutional provisions.  Appellant merely interpreted the dictates of the statute and indeed the directions from and past practices of the Town Clerk, as allowing the required description to bestapled 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  potential signers understand what 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.  With ten days to spare, the Appellant filed its petitions-petitions containing more than enough signatures to qualify the referendum for the ballot.

            Finally, an important issue regarding the meaningful description of the property effected by the ordinance needs to be resolved.  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.

                                    Submitted this ___day of June, 2006

 

                                    ___________________________________

                                    Gil Shaw, Attorney for Plaintiffs

:

 

Appellant’s Opening Brief and Six Copies filed, by first class mail, with

 

Clerk of the Arizona Court of Appeals

1501 W. Washington

Phoenix, Arizona 85007-3329

 

and 2 COPIES each  mailed to:

 

 

Attorneys for Appellees

 

Kelly Schwab

Curtis, Goodwin, Sullivan

    Udall & Schwab

2712 North 7^th Street

Phoenix, Arizona 85006

 

Jeff Gross

Gallagher & Kennedy

2575 East Camelback Road

Phoenix, Arizona 85016

 

This 31^st day of July, 2006

 

 

__________________________