SHANE NOEL JONES and VICTORIA CRANFORD v. RESPECT THE WILL OF THE PEOPLE ( 2022 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
SHANE NOEL JONES, A QUALIFIED ELECTOR; VICTORIA CRANFORD,
A QUALIFIED ELECTOR AND RESIDENT OF GRAHAM COUNTY,
Plaintiffs/Appellants,
v.
RESPECT THE WILL OF THE PEOPLE: GRAHAM COUNTY VOTERS & THE
ARIZONA PUBLIC INTEGRITY ALLIANCE ENCOURAGES A NO VOTE ON MASSIVE
MARIJUANA EXPANSION IN OUR AREA, REAL PARTY IN INTEREST
GEORGE KHALAF, AS ITS CHAIRMAN; WENDY JOHN, IN HER OFFICIAL CAPACITY
AS GRAHAM COUNTY RECORDER; HANNAH DUDERSTADT, IN HER OFFICIAL
CAPACITY AS DEPUTY CLERK/ELECTIONS DIRECTOR; DANNY SMITH,
PAUL R. DAVID, AND JOHN HOWARD, IN THEIR OFFICIAL CAPACITIES
AS MEMBERS OF THE BOARD OF SUPERVISORS FOR GRAHAM COUNTY,
Defendants/Appellees.
No. 2 CA-CV 2022-0065
Filed August 25, 2022
Appeal from the Superior Court in Graham County
Nos. S0500CV202100076 and S0500CV202100077 (Consolidated)
The Honorable John R. Hannah Jr., Judge
AFFIRMED
COUNSEL
Herrera Arellano LLP, Phoenix
By Roy Herrera, Daniel A. Arellano, and Jillian L. Andrews
and
Snell & Wilmer L.L.P., Phoenix
By Colin P. Ahler
Counsel for Plaintiffs/Appellants
JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
Rose Law Group PC, Scottsdale
By Logan V. Elia and John H. Sud
Counsel for Defendants/Appellees
OPINION
Vice Chief Judge Staring authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Brearcliffe concurred.
S T A R I N G, Vice Chief Judge:
¶1 In this expedited election appeal, Shane Jones and Victoria
Cranford (collectively, Jones) challenge the trial court’s final judgment in
favor of Respect the Will of the People: Graham County Voters & The
Arizona Public Integrity Alliance Encourages a No Vote on Massive
Marijuana Expansion in Our Area; its chairman, George Khalaf; and
various Graham County officials (collectively, RWP), denying Jones’s
request for injunctive relief and permitting referendum petition
REF-02-2021 to be placed on the November 2022 ballot.1 Jones raises two
principal issues on appeal: (1) whether the court erred in concluding the
petition complied with A.R.S. § 19-101(A) by including the title twice and
the entire text of the zoning measure; and (2) whether the court erred in
concluding RWP had obtained enough valid signatures to place the
measure on the ballot. By order dated July 21, 2022, we affirmed the trial
court’s judgment, indicating that a formal written disposition would
follow. This opinion is that disposition.
Factual and Procedural Background
¶2 In June 2021, the Graham County Board of Supervisors
approved the rezoning of a portion of land from “general use” to
“unlimited manufacturing” for the purpose of establishing a medical
marijuana cultivation facility. The following month, RWP filed a
referendum petition (designated as REF-02-2021) opposing the rezoning
1Below, Jones “voluntarily dismiss[ed] any allegations of errors or
omissions on the part of any County Defendant,” and the Graham County
officials “remain nominal Defendants only to the extent that they are
necessary to effectuate any injunctive relief granted by the Court.”
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
and referring the matter to Graham County voters in the November 2022
election. Later that month, RWP submitted 2,288 signatures supporting the
petition. In August 2021, after verifying randomly selected signatures, the
Graham County Recorder certified the petition for the ballot.
¶3 Also in August, Jones filed a verified complaint pursuant to
A.R.S. §§ 19-122(C) and 19-141(D), alleging RWP had failed to obtain a
sufficient number of valid signatures on the referendum petition. 2 In
addition, Jones alleged RWP had failed to comply with the petition
requirements under § 19-101(A) by including “more than the ‘title’ of the
measure, its number, and the meeting and body at which it was passed,”
which Jones asserted was “misleading.” Jones requested an injunction
prohibiting Graham County officials from placing the petition on the
November 2022 ballot.
¶4 RWP subsequently filed a motion to dismiss Jones’s
complaint. First, RWP argued Jones was barred by the statute of limitations
from challenging the signatures on the referendum petition. Second,
regarding the allegation that the petition was “misleading,” RWP asserted
Jones had failed to state a claim upon which relief could be granted.
Further, RWP maintained that the petition “strictly complies with the
relevant statutes” because it included the “entire name of the Rezoning
Application as described in the Board’s official meeting minutes,”
consistent with A.R.S. § 19-121(E). The trial court denied the motion to
dismiss in part, rejecting the statute of limitations argument. The court,
however, granted the motion to dismiss “to the extent that [Jones]
challenge[d] the text of the ‘petition for referendum’ section of the subject
petitions,” finding that the petition was “within the bounds of what is
permissible.”
¶5 Shortly thereafter, Jones filed a motion for summary
judgment on the signature challenge. The parties agreed that RWP needed
1,064 signatures to place the referendum petition on the ballot and that it
had collected 2,288 total signatures. Jones, however, maintained that 1,308
of the signatures were “statutorily deficient,” leaving only 980 that were
valid. Jones reasoned that 230 signatures were “invalid based on facial
deficiencies or lack of a corresponding voter registration record [in]
Graham County.” Jones further asserted that 1,077 signatures were
2 Jones and Cranford each filed a separate complaint, but the trial
court consolidated the matters.
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
“deficient” because the circulator who had collected them, Keith Leonard,
“issued a false circulator affidavit about where he lived.”3
¶6 After oral argument, the trial court denied the motion for
summary judgment as to the 1,077 signatures affected by the circulator
challenge, finding Leonard’s address to be a factual question. The court
also denied the motion as to ninety-three signatures that had addresses on
the referendum petition that did not match those in the voter rolls and as to
six signatures that had a missing year in the date line. But the court granted
the motion for summary judgment as to eighty-seven signatures not
appearing in the Graham County voter rolls, thirty-one signatures with
missing or illegible information, ten signatures that listed a post-office box
instead of a residential address, three signatures with a date-related
deficiency, and ten signatures that were duplicative.4
¶7 In April 2022, the trial court held a bench trial to address the
remaining issues. After considering the evidence and argument, the court
found that the address Leonard had listed on the circulator affidavit was
not his “actual residence” and, therefore, it concluded all the petition sheets
circulated by Leonard were invalid.
¶8 The trial court then heard argument concerning the remaining
signature issues. Jones asserted that, during trial preparations, he had
discovered an additional twelve signatures that were not in the Graham
County voter rolls and argued that they should be covered by the court’s
earlier grant of summary judgment on that issue. According to Jones,
taking those additional signatures into account would mean RWP had
failed to meet the 1,064 threshold. The court ordered Jones to file a
supplemental motion for summary judgment and RWP to respond in order
to give both parties time to review the signatures and the calculation.
¶9 In that supplemental motion, Jones pointed out that, as part
of the initial motion for summary judgment, the trial court had struck the
3 Althoughthe motion argued that 1,078 signatures were invalid
based on the false circulator affidavit, the parties later agreed that the
correct number was 1,077.
4Although the court’s minute entry indicated that ninety signatures
belonged to voters not listed in the voter rolls, in the motion for summary
judgment, Jones had indicated that this number was eighty-seven, and the
court later corrected it.
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
signatures of eighty-seven individuals who were not registered to vote in
Graham County when they signed the referendum petition but had
proceeded to trial on ninety-three signatures for individuals whose
addresses on the petition did not match the voter records. Jones explained
that the additional twelve signatures he had discovered during trial
preparations “were inadvertently included in [his] objection category for a
‘mismatched address’ when, in fact, they did not appear at all in the
County’s voter registration records.” Jones therefore reasoned that the
twelve signatures “cannot be counted.” He also pointed out that, on the
eve of trial, when counsel had sent RWP an email detailing this discrepancy,
RWP suggested it would stipulate to the twelve “objections based upon
signers who do not appear in the precinct register.” Jones argued RWP
could not “walk . . . back” the stipulation “because it did not anticipate
losing on the Keith Leonard issue.” And, Jones maintained that subtracting
all the invalid signatures left RWP with 1,062 signatures, which was two
short of the required 1,064.
¶10 In response, RWP conceded that the twelve signatures raised
in the supplemental motion “were not those of registered voters in Graham
County.”5 But RWP pointed out that of the ten signatures the trial court
had originally struck as duplicates pursuant to the initial motion for
summary judgment, seven were duplicative of signatures Leonard had
obtained. Thus, RWP argued, when the court struck the Leonard
signatures, “the copies of the 7 signatures that were gathered by other
circulators and previously eliminated as duplicates [were] now the only
valid signatures from those voters.” (Emphasis omitted.) Adding those
seven to the 1,062 Jones had conceded were valid, RWP reasoned there were
1,069 valid signatures, exceeding the requirement of 1,064. RWP also
identified an additional twenty-two signatures that had been
“misrepresented” in the initial motion for summary judgment and should
not have been disqualified.
¶11 In reply, Jones argued that RWP was asking “to re-open this
entire case” by contesting “scores of . . . signature-specific objections that
have long been disclosed and were squarely raised in [the initial] motion
for summary judgment.” Jones asserted RWP had “waived any arguments
5 After supplemental briefing was complete, the parties filed a
stipulation acknowledging that one of the twelve signatures at issue in fact
belonged to a registered voter at the time the referendum petition was
signed. They therefore agreed the supplemental motion for summary
judgment only concerned eleven signatures.
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
concerning signatures already deemed invalid” because it had not
challenged them as part of the initial motion for summary judgment. Jones
further asserted that he would suffer “immeasurable prejudice” by having
to relitigate these issues. As to the seven duplicate signatures, Jones
explained that the individuals had signed Leonard’s petition first and he
had sought summary judgment on the “second-in-time signature,” such
that both signatures should be disqualified. (Emphasis omitted.)
¶12 In May 2022, the trial court issued its under-advisement
ruling denying Jones’s request for injunctive relief. The court concluded
RWP had waived its argument concerning the twenty-two signatures that
were “misrepresented” in the initial motion for summary judgment. But,
the court determined that RWP had not waived its argument about the
seven duplicate signatures because it could not have been raised sooner and
that there was “no legal basis for disqualifying those signatures.” This
resulted in 1,070 valid signatures, and the referendum petition qualified for
the ballot. In June 2022, the court entered a final judgment incorporating
its prior minute entries and rulings, and this appeal followed.
Standard of Review
¶13 We review a trial court’s decision on a request for injunctive
relief for an abuse of discretion. Parker v. City of Tucson, 233 Ariz. 422, ¶ 11
(App. 2013). However, we review questions of law concerning the
interpretation and application of referendum statutes de novo. Arrett v.
Bower, 237 Ariz. 74, ¶ 7 (App. 2015).
¶14 In Arizona, the power of referendum is reserved for qualified
electors of cities, towns, and counties. Ariz. Const. art. IV, pt. 1, § 1(8). It
“permits qualified electors to circulate petitions and refer legislation which
has been enacted by their elected representatives to a popular vote.”
Redelsperger v. City of Avondale, 207 Ariz. 430, ¶ 8 (App. 2004). Because this
power “permits a minority to forestall implementation of enacted
legislation, it ‘requires strict compliance with [applicable] constitutional
and statutory requirements.’” Maricopa Citizens Protecting Taxpayers v. Price,
244 Ariz. 330, ¶ 8 (App. 2017) (alteration in Price) (quoting W. Devcor, Inc. v.
City of Scottsdale, 168 Ariz. 426, 429 (1991)); see also Comm. for Pres. of
Established Neighborhoods v. Riffel, 213 Ariz. 247, ¶ 6 (App. 2006) (“requires
nearly perfect compliance”); Sklar v. Town of Fountain Hills, 220 Ariz. 449,
¶ 9 (App. 2008) (strict compliance required).
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
Compliance with § 19-101(A)
¶15 Jones first argues the trial court erred in dismissing his
challenge to the text of the referendum petition. Specifically, he maintains
that RWP’s petition “plainly does not comply” with § 19-101(A)’s
“straightforward directive to identify” the “county measure” at issue and
the title of the measure being referred, rather than its entire text. We review
de novo the grant of a motion to dismiss for failure to state a claim. Coleman
v. City of Mesa, 230 Ariz. 352, ¶ 7 (2012).
¶16 Section 19-101(A) prescribes “the form for referring to the
people by referendum petition a measure or item, section or part of a
measure enacted by the legislature, or by the legislative body of an
incorporated city, town or county.” As relevant here, it requires the
following language:
Petition for Referendum
To the secretary of state (or to the
corresponding officer for or on local, county,
city or town measures):
We, the undersigned citizens and
qualified electors of the state of Arizona,
respectfully order that the senate (or house) bill
No. _____ (or other local, county, city or town
measure) entitled (title of act or ordinance, and
if the petition is against less than the whole act
or ordinance then set forth here the item,
section, or part, of any measure on which the
referendum is used), passed by the
_________________ session of the legislature of
the state of Arizona, at the general (or special, as
the case may be) session of said legislature, (or
by a county, city or town legislative body) shall
be referred to a vote of the qualified electors of
the state, (county, city or town) for their
approval or rejection at the next regular general
election (or county, city or town election) and
each for himself says . . . .
(Emphasis added.)
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
¶17 RWP’s referendum petition stated:
Petition for Referendum
To the Graham County Election
Director:6
We, the undersigned citizens and
qualified electors of the state of Arizona,
respectfully order that the Zone Map Change
REZ#832-21 (APN 114-19-008D), entitled
“Zone Map Change REZ#832-21 (APN 114-19-
008D). Request is to change the present “A”
(General Land Use) Zone, site 5-6, to “M-X”
(Unlimited Manufacturing Land Use) Zone for
the purpose of operating offsite cultivation
facility for medical marijuana dispensaries
within existing greenhouse on property.
Applicant is Heather Dukes. Site address is
26050 S. NatureSweet Ave., Willcox, AZ.”,
passed by the Graham County Board of
Supervisors at the June 21, 2021 regular Board
of Supervisors’ meeting and ratified at the June
28, 2021 regular Board of Supervisors’ meeting,
shall be referred to a vote of the qualified
electors of the county for their approval or
6 Article IV, part 1, § 1(9) of the Arizona Constitution provides:
“Every initiative or referendum petition shall be addressed to the secretary
of state in the case of petitions for or on state measures, and to the clerk of
the board of supervisors, city clerk, or corresponding officer in the case of
petitions for or on county, city, or town measures.” In contrast, § 19-141(A)
states, “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.” We are aware of no case addressing this discrepancy. See Robson
Ranch Mountains, L.L.C. v. Pinal County, 203 Ariz. 120, ¶ 26 (App. 2002)
(identifying conflict). However, because Jones has not challenged the
petition on this basis and because RWP had a legal basis—§ 19-141(A)—to
address the petition to the election director, we decline to address the issue
further.
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
rejection at the next regular county election and
each for himself says . . . .
(Emphasis added.)
¶18 In granting the motion to dismiss on this issue, the trial court
explained that § 19-101(A) “calls for the insertion of the title” but “[i]f the
petition is against less than the whole act or ordinance then it is to set forth
the item, section, or part of any measure on which the referendum was
used.” The court reasoned that “[t]he ‘whole act’ in this case was the
entirety of the Board of Supervisors agenda” and “[t]he petition set forth
the item, section, or part on which the referendum is used.” The court
continued, “Even if that is not a technically correct interpretation of the
statute, the manner of compliance is not subject to the strict construction
rule.” And, the court concluded, “The manner of compliance here is within
the bounds of what is permissible in the effort of the defendants to comply
with the statutes.”
¶19 On appeal, Jones argues the trial court “misunderstood” § 19-
101(A) and “mistakenly relied on the statute’s directive that, ‘if the petition
is against less than the whole act or ordinance,’ the description must ‘set
forth here the item, section, or part, of any measure on which the
referendum is used.’” Jones reasons, “While the zoning measure was
approved amid other matters considered by the Graham County Board of
Supervisors, the zoning measure was certified as its own standalone
measure.”
¶20 “Our goal in interpreting statutes is to give effect to the intent
of the legislature.” Sell v. Gama, 231 Ariz. 323, ¶ 16 (2013) (quoting Est. of
Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 8 (2011)). “If a statute’s
language is clear and unambiguous, we apply it without resorting to other
methods of statutory interpretation.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264,
268 (1994). Statutes “should be construed together with other related
statutes,” even if they “contain no reference one to the other.” State ex rel.
Larson v. Farley, 106 Ariz. 119, 122 (1970). However, “the expression of one
or more items of a class indicates an intent to exclude all items of the same
class which are not expressed.” Pima County v. Heinfeld, 134 Ariz. 133, 134
(1982); see also Welch v. Cochise Cnty. Bd. of Supervisors, 251 Ariz. 519, ¶ 36
(2021) (applying this canon of construction to conclude legislature
intentionally excluded remedies).
¶21 Section 19-101(A) plainly prescribes the form of a referendum
petition. See Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5-6 (1972) (statute
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
“prescribes what the petition for referendum shall contain, how it shall be
signed, and by whom it shall be verified” (quoting AAD Temple Bldg. Ass’n
v. Duluth, 160 N.W. 682, 684 (Minn. 1916))). It applies to “a measure or item,
section or part of a measure enacted by the legislature, or by the legislative
body of an incorporated city, town or county.” § 19-101(A).
¶22 At issue here was a county measure, specifically, a rezoning
request, REZ#832-21, which the Graham County Board of Supervisors
approved in June 2021. See A.R.S. § 19-142(D) (explaining that “a person or
organization may file a referendum petition against the rezoning of a parcel
of property” upon approval of rezoning) (emphasis added). And RWP was
challenging the entire rezoning, not a part thereof. Put another way, the
measure at issue was not the Board of Supervisors’ agenda, as the trial court
found. See Grosvenor Holdings L.C. v. City of Peoria, 195 Ariz. 137, ¶ 14 (App.
1999) (“decision” in minutes is “referable act”). Indeed, RWP seemed to
recognize as much by designating “Zone Map Change REZ#832-21 (APN
114-19-008D)” as the “measure” on the petition, without reference to the
entirety of the Board of Supervisors’ agenda. The court therefore erred in
its interpretation of § 19-101(A), insofar as it concluded the measure at issue
was the entire agenda. See Arrett, 237 Ariz. 74, ¶ 7.
¶23 RWP nevertheless argues that when § 19-101(A) is read in
conjunction with § 19-121(E), the “logical conclusion . . . is that when there
is not an ordinance resolution to identify a measure, the meeting minutes
suffice for identification.” Section 19-121(E) provides:
For the purposes of this article and article
4 of this chapter, the measure to be attached to
the petition as enacted by the legislative body of
an incorporated city, town or county means the
adopted ordinance or resolution signed by the
mayor or the chairman of the board of
supervisors, as appropriate, and signed by the
clerk of the municipality or the clerk of the
board, as appropriate, or, in the absence of a
written ordinance or resolution, that portion of
the minutes of the legislative body that is
approved by the governing body and filed with
the clerk of the governing body and that reflects
the action taken by that body when adopting
the measure. In the case of zoning measures, the
measure shall also include a legal description of
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
the property and any amendments made to the
ordinance by the legislative body.
¶24 Even assuming we must construe the two statutes together,
see Larson, 106 Ariz. at 122; Heinfeld, 134 Ariz. at 134, we find RWP’s
argument unpersuasive. Section 19-121(E) discusses “the measure to be
attached to the petition.” See Simpson v. Comm. Against Unconstitutional
Takings, L.L.C., 193 Ariz. 391, ¶ 13 (App. 1998) (interpreting § 19-121(E) to
mean: “If the ordinance or resolution has been adopted, attach that to the
referendum petition; in the absence of a written ordinance or resolution,
attach the approved minutes.”). Here, by contrast, we are concerned with
the language describing the measure, including the “title of act or
ordinance” or “the item, section, or part, of any measure on which the
referendum is used,” as used in the text of the referendum petition itself.
§ 19-101(A). Indeed, § 19-101(A) separately requires “the title and text of
the measure [to be] attached” to the petition. From a practical standpoint,
it makes sense that the minutes, which can sometimes be lengthy and hard
to understand, would be attached to but not included in the text of a
petition. Section 19-121(E) therefore does not support RWP’s position that
the Graham County Board of Supervisors’ meeting minutes could be used
as the required language on the petition.
¶25 Next, Jones asserts that strict compliance with § 19-101(A)
was necessary. Jones contends the trial court’s conclusion that “the manner
of compliance is not subject to the strict construction rule” is a “patently
incorrect statement of [the] law.” He argues the court erroneously relied on
“Sklar’s discussion of the need to ‘broadly construe’ the terms of
referendum statutes,” notwithstanding the fact the legislature has
subsequently made clear in A.R.S. § 19-101.01 that “strict compliance is the
law, and failure to strictly comply is fatal to the measure.”7
¶26 In Sklar, which was decided in November 2008, this court
noted that “[o]ur supreme court has consistently held that a referendum
petition must ‘comply strictly with applicable constitutional and statutory
provisions.’” 220 Ariz. 449, ¶ 9 (quoting Sherrill v. City of Peoria, 189 Ariz.
537, 540 (1997)). But, we also noted that our legislature had expressly
7RWP suggests that Jones did not raise this argument below but does
not argue that we should consider the issue waived. Although Jones did
not apparently argue that Sklar was no longer good law before the trial
court, he did rely on § 19-101.01 and maintained that strict compliance with
§ 19-101(A) was required. We decline to find waiver.
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Opinion of the Court
directed, in a note to A.R.S. § 19-111, that referendum requirements should
be “broadly construed.” Id. ¶ 10 (quoting Sherrill, 189 Ariz. at 540-41). In
an attempt to harmonize these two standards, this court explained that we
must strictly construe the statutory requirements but broadly construe the
terms used in the statutes to identify those requirements. Id. ¶ 11. In 2015,
after Sklar was decided, our legislature added § 19-101.01, which mandates
“that the constitutional and statutory requirements for the referendum be
strictly construed and that persons using the referendum process strictly
comply with those constitutional and statutory requirements.” See 2015
Ariz. Sess. Laws, ch. 285, § 1.
¶27 As a starting point, we determine whether Sklar’s proposition
that we must broadly construe the terms used in the referendum statutes
can coexist with the explicit requirements of § 19-101.01. Section 19-101.01
requires strict compliance with “the constitutional and statutory
requirements for the referendum process.” Notably, our caselaw
established that same proposition even before § 19-101.01 was enacted.
See Sklar, 220 Ariz. 449, ¶ 9. Section 19-101.01, however, does not address
how we interpret the terms used in those constitutional and statutory
requirements to determine their ultimate meaning.
¶28 That said, the proposition that we broadly interpret terms
used in the statutory requirements for referendums was based on a prior
note to § 19-111. See Sklar, 220 Ariz. 449, ¶ 10. But that note was removed,8
and our legislature enacted § 19-101.01, emphasizing the need for strict
compliance. See State v. Superior Court, 104 Ariz. 440, 442 (1969) (when
legislature amends existing statute, we presume it was aware of prior
judicial interpretations of statute); State v. Averyt, 179 Ariz. 123, 128
8 The note was originally included as a statement of purpose with
legislative amendments to title 19, chapter 1. 1989 Ariz. Sess. Laws, ch. 10,
§§ 1, 2. It was not numbered and subsequently appeared under the heading
“Historical and Statutory Notes,” as late as 2015. See, e.g., Sklar, 220 Ariz.
449, ¶ 10. To the extent this statement of purpose was enacted as part of
our prior law, the legislature’s subsequent adoption of § 19-101.01
seemingly repealed it by implication. See Hounshell v. White, 219 Ariz. 381,
¶ 13 (App. 2008) (repeal by implication results where subsequent statute
covers same subject matter and earlier statute not explicitly retained);
see also A.R.S. § 1-245. In any event, we need not resolve the issue here
because our opinion does not turn on the ongoing validity of that statement
or the reasoning in Sklar.
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
(App. 1994) (“Under the rules of statutory construction, when the
legislature modifies the language of a statute, there is a presumption that a
change in the existing law was intended.”). Thus, the proposition that we
broadly construe the terms in the referendum statutes appears to be no
longer good law. The trial court therefore erred in concluding that the rule
of strict compliance does not apply here. See Romer-Pollis v. Ada, 223 Ariz.
300, ¶ 12 (App. 2009) (court abuses discretion by committing error of law).
¶29 However, we decline to conclude that the presence of any
surplus information on a referendum petition automatically negates strict
compliance under § 19-101(A). Nothing in the plain language of
§ 19-101(A) mandates such a result. Further, in this instance, the surplusage
does not alter the meaning or cause confusion. See Pioneer Tr. Co. of Ariz. v.
Pima County, 168 Ariz. 61, 67 (1991); see also Sklar, 220 Ariz. 449, ¶ 17 (“The
purpose of [§ 19-101(A)] is to ensure that the public has immediate and full
disclosure of the exact public action that may be reversed.”). As our
supreme court concluded in Pioneer Trust, “Absent constitutional or
statutory proscription of such surplusage, we choose not to silence the voice
of the people because of it.” 168 Ariz. at 67.
¶30 RWP’s referendum petition contained the required
information under § 19-101(A). It identified the relevant rezoning request,
including details of when it had been passed and by whom. Although the
petition included the title of the rezoning request twice, as well as the entire
proposal, this additional information did not alter the meaning and “does
not justify depriving [Graham] County voters of their opportunity to be
heard.” Pioneer Tr., 168 Ariz. at 67. If anything, this additional information
served to better inform the signers of the matter at issue. See Sklar, 220 Ariz.
449, ¶ 17. In addition, although the petition lacked the phrase “county
measure,” or something similar, it was clear based on the remainder of the
petition—namely the address of the property and the involvement of the
Graham County Board of Supervisors—that what was at issue was a county
matter.
¶31 In sum, we conclude that the form of a referendum petition
must strictly comply with § 19-101(A) and that RWP so complied here,
despite its inclusion of surplus information. Accordingly, the trial court did
not err in granting the motion to dismiss on this issue. See Coleman,
230 Ariz. 352, ¶ 7; see also Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006)
(we may affirm trial court if legally correct for any reason apparent in
record).
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Opinion of the Court
Sufficient Valid Signatures
¶32 Jones next contends that the “trial court erred in granting
post-trial judgment” for RWP on the signature challenge. Specifically, he
raises three issues: (1) the court “failed to shift the burden of proof to [RWP]
to prove the validity of signatures containing mismatched addresses”;
(2) RWP “waived its post-trial argument to revive seven ‘duplicate’
signatures that [it had] conceded, during summary judgment briefing, were
invalid”; and (3) the court misinterpreted “the duplicate signature
prohibition in A.R.S. § 19-121.02.” We address each issue in turn.
¶33 The first issue concerns ninety-three signatures with an
address on the referendum petition that did not match the signer’s address
in the voter registration records. Below, Jones presented evidence of these
mismatched addresses in his motion for summary judgment. In response,
RWP asserted, in a footnote, that “[i]t is not clear that a failure to update a
voters’ registration address automatically invalidates their signing of a
referendum petition.”
¶34 In denying the motion for summary judgment on these
signatures, the trial court stated:
As to the signatures for which the
addresses do not match the voter registration,
the court finds that those signatures are
presumed to be valid. The requirement is that
those people be qualified electors. By
identifying those people as being potentially the
same people, who have simply moved within
Graham County, the plaintiffs implicitly
concede the likely validity of those signatures.
Also, the petition calls for the “current
residence address” of the signers. It’s difficult
for the court to see how it’s fair to presume a
signature invalid where the signer provided
exactly the information the sign[e]r was
instructed to provide.
....
. . . [T]he plaintiffs are free to present
evidence to the court, or argue to the court
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
based on the evidence that’s already present in
the record, that those signatures should not
count. At this point the court cannot say that
those 93 signatures are either valid or invalid.
¶35 On appeal, Jones maintains that his “position is not that a
signature is invalid simply because an otherwise qualified elector has
moved after signing.” Rather, he argues, “[I]t is impossible to determine,
on the face of the petition vis-à-vis voter registration rolls, whether the John
Smith who signed the petition as a resident of 123 Main Street is a qualified
elector if no John Smith is registered at that address.” Because “[i]t is
uncontested that, as to dozens of signers, no voter by the same name
appeared registered at the address listed on the petition,” Jones reasons that
this “discrepancy displaced the presumption of validity as to these
signatures and shifted the burden to [RWP] to re-establish their validity.”
¶36 In support of his burden-shifting argument, Jones relies on
Jenkins v. Hale, 218 Ariz. 561, ¶ 23 (2008), and McKenna v. Soto, 250 Ariz. 469,
¶ 18 (2021). But these cases are distinguishable. Procedurally, neither case
was before the trial court on summary judgment. See Jenkins, 218 Ariz. 561,
¶ 4; McKenna, 250 Ariz. 469, ¶ 1. Substantively, Jenkins involved signatures
that listed a post-office box, rather than the required residential address,
218 Ariz. 561, ¶ 18, while McKenna involved signatures with incomplete
dates, 250 Ariz. 469, ¶ 15. Both cases, therefore, involved issues that were
facially fatal.
¶37 “In Arizona, a summary judgment motion sets in play shifting
burdens.” Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 12 (App. 2008).
The moving party bears the initial burden of showing “there are no genuine
issues of material fact and it is entitled to summary judgment as a matter of
law.” Id. “Only if the moving party satisfies this burden will the party
opposing the motion be required to come forward with evidence
establishing the existence of a genuine issue of material fact that must be
resolved at trial.” Id. The moving party bears the heavy burden of
persuasion, and that burden does not shift to the non-moving party.
Id. ¶¶ 16-17. In reviewing a motion for summary judgment, we must
determine de novo whether the trial court erred in applying the law. Bothell
v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8 (App. 1998).
¶38 As RWP points out, the only evidence Jones presented in
support of his claim as to these ninety-three signatures was the mismatched
addresses in the voter rolls. The trial court seemed to suggest that Jones
had failed to meet his initial burden because the signers listed an address
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
that was presumably their “current residence address,” regardless of what
address they had previously used when registering to vote. We agree that,
despite different addresses being listed in the voter registration records,
there is nothing facially fatal about these signatures. See § 19-101(A)
(requiring signer to provide “[a]ctual address” or description of “residence
location”); § 19-121.02(A)(1) (county recorder may reject signatures where
“[n]o residence address or description of residence location is provided”).
And it is not clear from the record what version of the registration records
Jones used for the address comparison—the current version as of the filing
of the court action, the version as of the signing of the petition, or something
else entirely. See § 19-122(B) (most current version of voter registration
database at time of filing of court action challenging referendum petition
constitutes “official record” to be used to determine eligibility, but if that
address differs, county recorder must also examine version of database that
was current as of date signer signed petition). Because Jones failed to show
there were “no genuine issues of material fact” with regard to his claim that
the signatures were invalid, the burden of establishing a genuine issue did
not fall to RWP. Nat’l Bank of Ariz., 218 Ariz. 112, ¶¶ 12, 17. The court
therefore did not err in denying the motion for summary judgment.
See Bothell, 192 Ariz. 313, ¶ 8.
¶39 The second and third issues concern seven duplicate
signatures that were collected by Leonard and a separate circulator. These
signatures were part of the ten signatures the trial court had disqualified
under the initial motion for summary judgment. At that time, the court
denied the motion for summary judgment on Leonard’s circulator affidavit.
After the court had invalidated all the petition sheets circulated by Leonard
at trial, and after the court had granted the parties leave to file supplemental
pleadings on the additional twelve signatures that were not in the voter
rolls, RWP raised this new issue with respect to the seven duplicate
signatures. RWP maintained that because the court had invalidated the
signatures on the Leonard petitions, the duplicate signatures, collected by
a different circulator, should not be disqualified.
¶40 The trial court agreed with RWP, explaining that there was
“no legal basis for disqualifying” the seven signatures after the Leonard
petitions had been disqualified. The court explained that it was not going
to treat this argument as waived because it “could not have been made in
response to the pre-hearing summary judgment motion,” given that the
Leonard petitions had not yet been struck. The court further determined
that RWP had timely raised the issue because “no final ruling was made at
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
the hearing.” The court further pointed out that Jones had a “full and fair
opportunity to be heard in response.”
¶41 On appeal, Jones reurges his argument that RWP waived any
issue related to these seven signatures. He points to caselaw discussing
partial summary judgment rulings and “the need for parties to be able to
rely on those rulings in preparing for trial.” And, Jones maintains he
focused his “trial preparation and presentation on evidence showing that
the address that Leonard listed on his petition sheets was not his actual
residence” and “did not present evidence concerning the 93 signatures
containing mismatched addresses, as this would have been superfluous.”
¶42 The rule of waiver “is a rule of prudence, not of jurisdiction.”
City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, n.9 (2005). When
good reason exists, a court may entertain waived issues. Jimenez v. Sears,
Roebuck & Co., 183 Ariz. 399, 406 n.9 (1995). Whether to apply the doctrine
of waiver is largely a discretionary decision for the court considering it.
See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987).
¶43 At the hearing on the motion for summary judgment, the trial
court entered its orders in an unsigned minute entry. As the court pointed
out, its orders were therefore subject to change. See Ariz. R. Civ. P. 54(b);
BCAZ Corp. v. Helgoe, 194 Ariz. 11, ¶ 14 (App. 1998) (interlocutory or
intermediate order subject to change prior to final judgment); Reilly v.
Perkins, 6 Ariz. 188, 190 (1899) (until final judgment, proceedings are subject
to change and modification; interlocutory order or decree “is always under
the control of the court until the final decision of the suit, and may be
modified or rescinded upon sufficient grounds shown at any time before
final judgment”). And in light of later events at trial—specifically, the
disqualification of the petition sheets circulated by Leonard—the court
determined that its original summary judgment ruling needed to be
modified. The court therefore had a sound reason—and a legal basis—for
declining to apply waiver.
¶44 It is significant that Jones was afforded an opportunity to
respond to RWP’s argument—and in fact did so—through his reply in
support of his supplemental motion for summary judgment. See Stokes v.
Stokes, 143 Ariz. 590, 592 (App. 1984) (doctrine of waiver intended to
prevent surprise). In addition, the trial court allowed Jones to present
arguably tardy evidence about the additional twelve signatures of
individuals who were not in the voter rolls that, Jones maintained, should
be disqualified pursuant to the court’s earlier grant of summary judgment.
Cf. State v. Ross, 166 Ariz. 579, 584 (App. 1990) (“essential fairness” underlies
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
system of justice). We therefore cannot say the court abused its discretion
in declining to deem this argument waived. See Hawkins, 152 Ariz. at 503.
¶45 The final issue concerns § 19-121.02(A), which provides that,
after receiving referendum petition signature sheets, the county recorder
“shall determine which signatures of individuals whose names were
transmitted shall be disqualified.” The statute further provides, in relevant
part, that “[i]f a petitioner signed more than once, all but one otherwise
valid signature shall be disqualified.” § 19-121.02(A)(8).
¶46 Below, Jones argued, “[I]f a person signs a referendum
petition more than once, only the first signature collected by that person
should be eligible to be counted.” And, according to Jones, with respect to
the seven signatures, because those individuals signed Leonard’s petition
first, the first was invalid based on the false circulator affidavit and the
second was invalid as being a duplicate. The trial court disagreed,
explaining § 19-121.02(A)(8) “says to count ‘one signature’ that is valid but
for the fact that it is duplicative.” The court continued, “There is no basis
in the statute’s text for disqualifying all duplicative signatures.”
¶47 On appeal, Jones again contends that § 19-121.02(A)(8), when
“combined with the ‘strict compliance’ standard to which referenda
signatures are held, . . . logically suggests that only the first signature
obtained from a duplicate signer should be counted.” (Emphasis omitted.)
Jones maintains that the trial court’s “alternative interpretation . . . fails to
recognize the important policy reasons behind eliminating second-in-time
signatures.” Specifically, Jones asserts that “[f]ailure to eliminate all but the
first signature incentivizes initiative or referendum sponsors to have
individuals sign the same petition as many times as possible because if one
of the earlier-in-time duplicates is eliminated on other grounds, the later-
in-time signatures can serve as back-ups.”
¶48 Section 19-121.02(A)(8) plainly requires the county recorder
to disqualify “all but one otherwise valid signature” if the person signed
more than once. It does not specify which signature must be invalidated.
“[W]e will not read into a statute something which is not within the
manifest intent of the legislature as indicated by the statute itself.” City of
Tempe v. Fleming, 168 Ariz. 454, 457 (App. 1991). “Nor will we ‘inflate,
expand, stretch or extend a statute to matters not falling within its express
provisions.’” Id. (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133
(1965)). Accordingly, the trial court correctly interpreted § 19-121.02(A)(8)
as allowing the disqualification of the first signature. See Arrett, 237 Ariz.
74, ¶ 7. And we need not resort to Jones’s policy arguments, given that the
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JONES v. RESPECT THE WILL OF THE PEOPLE
Opinion of the Court
language of the statute is plain and unambiguous. See Hayes, 178 Ariz. at
268.
Conclusion
¶49 For the foregoing reasons, we affirm the trial court’s denial of
Jones’s request for injunctive relief, permitting referendum petition
REF-02-2021 to be placed on the November 2022 ballot.
19