Stein v. Meck ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JONATHAN STEIN, et al., Plaintiffs/Appellees,
v.
JACKIE A. MECK, et al., Defendants/Appellants.
No. 1 CA-CV 20-0263
FILED 2-9-2021
Appeal from the Superior Court in Maricopa County
No. CV2019-006142
The Honorable Rosa Mroz, Judge
AFFIRMED IN PART; REVERSED IN PART; REMANDED
COUNSEL
Gust Rosenfeld PLC, Phoenix
By Richard B. Hood, J.T. Shoaf
Counsel for Defendants/Appellants
Timothy A. LaSota PLC, Phoenix
By Timothy A. LaSota
Counsel for Plaintiffs/Appellees
STEIN, et al. v. MECK, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Jennifer M. Perkins joined.
P O R T L E Y, Judge:
¶1 The Mayor of the City of Buckeye, Arizona, Jackie A. Meck,
the named city council members and the City of Buckeye (collectively, the
“City”) appeal the summary judgment granted to The Buckeye Star
Newspaper, Inc. and Jonathan Stein, its owner (collectively, the “Star”).
The City challenges the judgment requiring it to grant the newspaper
preferential treatment and award it the 2018 contract to publish legal
notices for the City pursuant to A.R.S. § 39-204(C)(3). Specifically, the City
contends that the Star, a weekly newspaper of general circulation
(“newspaper”), did not indicate in its response to the City’s 2018 Request
for Proposal (“RFP”) that the newspaper was printed “within the territorial
limits [of the City].” See A.R.S. §§ 39-201 and -204(A), (B)(1), (C)(3).
¶2 The appeal requires us to resolve two issues. First, did the
superior court err by determining that the Star did not need to print all of
its newspapers within the City? Second, if the court did not err in its
statutory analysis, is there a genuine issue of fact that precludes summary
judgement for the Star?
¶3 We agree with the court’s interpretation of the “printed”
requirement in A.R.S. § 39-204(C)(3). However, there remains a genuine
issue of material fact of whether the Star apprised the City, in its response
to the RFP, that it was printing copies of its newspapers of general
circulation within the City’s limits. Accordingly, we reverse the entry of
summary judgment in part and remand this case back to the court for the
reasons stated below.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
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Decision of the Court
FACTS AND PROCEDURAL BACKGROUND
¶4 At the end of August 2018, the Star terminated its existing
contract with the City to publish legal notices in its newspaper because the
City refused to agree to pay increased rates, including for publishing public
notices.
¶5 In October 2018, the City issued a RFP for the publication of
legal notices it was required by law to have “printed and published” in an
Arizona newspaper of general circulation. See A.R.S. §§ 9-812, 39-204(A),
(C)(3). The Star submitted a proposal, as did The Arizona Republic. The
Star’s proposal indicated that its newspaper had been published in the City
since 2010 but stated the following, in relevant part, about printing and
circulation:
The Buckeye Star does a portion of in house printing for
newsprints, we also print the majority of the newspapers at
our subcontractors print facility in Tempe Az.
....
The Buckeye Star circulation system includes direct mail for
subscribers, City Residents, and businesses, with
subscriptions. . . . The Buckeye Star’s circulation is 5,000
issues per week, with a total of 20,000 issues per month.
....
We also have the ability to print short runs of our publication
in house within the territorial limits of Buckeye Arizona. This
ensures The Buckeye Star never runs out of newspapers, and
allows us to meet the A.R.S. Statutes to actually print and publish
within the City Limits.
The Buckeye Star uses Adobe InDesign which is a commercial
grade publishing software program for the creation of pre-
printed files of PDF’s. . . .
Once the files and pages are proofed and finalized, files are
uploaded via an FTP site to our Subcontractor, Signature
Offset a commercial newspaper printing company located at
606 South Madison Drive Tempe, AZ 85281 where the ink to
paper process is performed.
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Decision of the Court
(Emphasis added.)
¶6 The City did not believe the Star met the printing requirement
of A.R.S. § 39-204(C)(3) that all of its weekly newspapers be printed within
City limits. Accordingly, after finding The Arizona Republic’s proposal
economically advantageous, the City awarded the 2018 contract to the
Republic.
¶7 The Star filed an unsuccessful formal protest pursuant to the
City’s Procurement Code. The Star then filed a verified special action
complaint against the City seeking injunctive relief and review of the
administrative decision. After the superior court denied the request for any
injunctive relief, the parties filed competing motions for summary
judgment. The Star argued that there was no genuine issue of material fact
that it was the only bidder in 2018 that both printed and published weekly
newspapers within City limits, and thus should have been awarded the
contract pursuant to A.R.S. § 39-204(C)(3). Specifically, it asserted that even
though it printed “a more limited number” of its newspapers within City
limits, rather than the exclusive printing of all its newspapers within City
limits, it nevertheless met the “printed” requirement of A.R.S. § 39-
204(C)(3) as a matter of law.
¶8 In resolving summary judgment, the superior court noted
that the Star stated, in an answer to non-uniform interrogatories, that as of
November 8, 2018, it printed 150 newspapers for weekly distribution within
the City; 10 of which were proof copies, and 25 were kept for USPS permit
regulation purposes. After finding that the Star was not printed exclusively
within the City limits, the court held it was entitled to preferential treatment
under A.R.S. § 39-204(C)(3) since it printed some of its weekly newspapers
within City limits. Specifically, the court stated:
The plain language of A.R.S. § 39-204(C)(3) only requires that
the newspaper be “printed and published within the
territorial limits thereof.” There is nothing in the statute that
says all copies of the newspaper must be printed and
published within the territorial limits, nor does it say that
there is a minimal threshold of printing and publishing that
must occur before a newspaper receives preferential
treatment.
(Emphasis in original.)
¶9 The City timely appealed the judgment.
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Decision of the Court
DISCUSSION
I. Statutory Interpretation of A.R.S. § 39-204
¶10 The City argues that the court incorrectly interpreted A.R.S.
§ 39-204(C)(3), and contends that a plain reading of A.R.S. § 39-204(C)(3)
reveals that all printing of the Star’s weekly newspapers needs to occur
within the City to receive preferential treatment. It posits that any other
reading would essentially allow “a newspaper to print a single copy of its
newspaper in the subject jurisdiction in order to qualify for preferential
treatment under [§] 39-204(C)(3).” Consequently, we start by addressing
whether all copies of a newspaper of general circulation need to be printed
within City limits in order to qualify for statutory preferential treatment
under A.R.S. § 39-204(C)(3).
¶11 “We review issues of law involving statutory interpretation
and a trial court’s grant of summary judgment de novo.” Bentley v. Building
Our Future, 217 Ariz. 265, 270, ¶ 11 (App. 2007). “When interpreting a
statute, our primary goal is to find and give effect to legislative intent.”
Secure Ventures, LLC v. Gerlach, 249 Ariz. 97, 99, ¶ 5 (App. 2020). Because a
statute’s plain language is “the best indicator of legislative intent,” we give
unambiguous words their ordinary meaning and interpret “different
sections of a single statute consistently.” Id. “A cardinal principle of
statutory interpretation is to give meaning, if possible, to every word and
provision so that no word or provision is rendered superfluous.” Id.(quotation omitted).
¶12 Section 39-204(A) states, “[w]hen publication of a notice in a
newspaper is directed or authorized by law, it shall be in a newspaper of
general circulation printed in English.” Subsection (C)(3) provides that:
If the place of publication of the notice is not specified,
publication shall be[,] . . . [i]f by a district, city or town officer,
board or commission, or by any person in a district, city or
town, in a newspaper printed and published within the territorial
limits thereof. If no such newspaper is printed and published
within the limits thereof, publication may be made in a
newspaper printed and published in the county in which the
district, city or town is located.
(Emphasis added.)
¶13 Arizona has yet to analyze the purpose of the statute. The
California Supreme Court examined the validity of a statute that required
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Decision of the Court
a legal notice appear only in newspapers of general circulation, which were
both printed and published in the city, county, or state where the offered
advertising was published. In re Monrovia Evening Post, 248 P. 1017, 1018
(Cal. 1926). That court determined the statutory requirement “inform[ed]
the people concerning proceedings of a public nature for their general
welfare.” Id. at 1020. “It appears reasonable to require such notices to be
published in newspapers having a fixed and permanent domicile and a
substantial circulation at the city or place where the inhabitants live who
are most vitally interested in the transactions respecting which notices are
required.” Id.¶14 The language of A.R.S. § 39-204(A) is plain and
straightforward: legal notices in Arizona must be published in a newspaper
of general circulation that is printed in English.
¶15 Section 39-204(C)(3) is also plain and straightforward. It
requires a city or town seeking to publish legal notices to afford statutory
preferential treatment to a newspaper that is both printed and published
within the territorial limits of that same city or town. Notably, the “printed
and published” provision requires the printing of newspapers of general
circulation, not the mere printing of “proof copies” of that newspaper to
meet A.R.S. § 39-204(C)(3)’s “printed” requirement. See A.R.S. § 39-204(A)
(“When publication of a notice in a newspaper is directed or authorized by
law, it shall be in a newspaper of general circulation. . . .”) (emphasis added);
A.R.S. § 39-201(A) (defining “newspaper” as a “publication regularly issued
for dissemination of news of a general and public character . . . [which] shall
have a bona fide list of paying subscribers”). If the city or town does not
have a local newspaper that can meet the criteria, the city or town can use
a newspaper printed and published in the county where that city or town
is located. See A.R.S. § 39-204(C)(3).
¶16 The City contends that because the Star did not print all of its
weekly newspapers within the City, it did not have to afford the paper
preferential treatment in the 2018 RFP process. The word “all,” however, is
not now nor has it ever been in the statute. Compare Ariz. Rev. Code, ch. 62,
§ 2745(4) (1928) (“. . . in a newspaper printed and published within the
territorial limits thereof . . . .”); Ariz. Code Ann., ch. 89, § 18-102(4) (1939)
(same); A.R.S. § 39-204(C)(3) (same).
¶17 The Legislature did not include the word “all,” or other
similarly limiting language, in A.R.S. § 39-204(C)(3). We decline to add the
requirement “all,” an additional requirement, which would be in
contravention of the Legislature’s intent demonstrated by the plain
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Decision of the Court
language of the statute. See Cundiff v. State Farm. Mut. Auto. Ins., 217 Ariz.
358, 360, ¶ 8 (2008); see also John Munic Enters. v. Laos, 235 Ariz. 12, 15, ¶ 5
(App. 2014) (“When the statutory language is clear and unambiguous, we
look no further and assum[e] the legislature has said what it means.”)
(internal quotation omitted).
¶18 The City contends that it would be burdened by a “virtual
monopoly” if we accepted the superior court’s interpretation of A.R.S. § 39-
204(C)(3). Specifically, the City maintains that it will be forced to award a
contract to the Star, despite continued increases in publication fees. The
City asserts that the superior court’s interpretation harms the City and its
taxpayers, especially when a viable, cheaper alternative bid existed to
publish its legal notices. Because the City failed to cite to any legal authority
to support its virtual monopoly argument on appeal, we will not address
the argument. See ARCAP 13(a)(7)(A); Swanson v. Image Bank, 202 Ariz. 226,
239, ¶ 49 (App. 2002), aff’d in part, rev’d on other grounds, 206 Ariz. 264 (2003);
Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93, ¶ 50 (App. 1998). Indeed,
the Legislature is the proper venue for resolving such policy issues.
II. Review of Summary Judgment Against the City
¶19 We now turn to whether the superior court properly entered
summary judgment against the City.
¶20 We independently review a summary judgment to determine
if there was a genuine issue as to any material fact and whether the moving
party was entitled to judgment as a matter of law. Blevins v. Gov’t Emps. Ins.
, 227 Ariz. 456, 458, ¶ 5 (App. 2011); see also Ariz. R. Civ. P. 56(a). In doing
so, we construe the evidence and all reasonable inferences in favor of the
opposing party. Blevins, 227 Ariz. at 458, ¶ 5. “[W]here the evidence or
inferences would permit a jury to resolve a material issue in favor of either
party, summary judgment is improper.” Comerica Bank v. Mahmoodi, 224
Ariz. 289, 292, ¶ 19 (App. 2010) (internal quotation omitted). Put
differently, summary judgment is only warranted where a plaintiff
“submits undisputed admissible evidence that would compel any
reasonable juror to find in its favor.” Id. at 293, ¶ 20. And only after the
moving party meets its burden must the opposing party “come forward
with evidence to establish disputed material facts.” MidFirst Bank v. Chase,
230 Ariz. 366, 368, ¶ 6 (App. 2012); see Ariz. R. Civ. P. 56(c)(3)(B)(ii). We
further “review the decision on the record made in the trial court,
considering only the evidence presented to the trial court when it addressed
the motion.” Brookover v. Roberts Enters., 215 Ariz. 52, 55, ¶ 8 (App. 2007).
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Decision of the Court
A. Summary Judgment Against the City
¶21 The factual question is whether the Star printed any of its
weekly newspapers of general circulation within City limits at or around
the City’s November 8, 2018 RFP deadline, and provided that information
in its response to the RFP. See A.R.S. §§ 39-201, and -204(A), (C)(3). As an
initial matter, there is no disagreement that the Star is published within the
City. Moreover, the parties agree that printing occurs when ink is put on
paper (the “ink to paper” process), regardless of the process, mechanical or
otherwise.
¶22 The parties, however, disagree whether the Star advised the
City in its RFP response that it printed any newspapers of general
circulation within the City by November 8, 2018.
¶23 First, the Star’s 2018 proposal does not reveal that it printed
any weekly newspapers of general circulation within the City. The
proposal contained details about circulation, and the Star’s printing and
publishing process, stating that its “circulation is 5,000 issues per week,
with a total of 20,000 issues per month.” It also noted “[a]ll publishing
activities” are performed within the City, including the “printing of proofs
for ads and articles, assembly, packaging and distribution.” It continued,
“[w]e also have the ability to print short runs of our publication in house
within the territorial limits of Buckeye[,] Arizona. This ensures The
Buckeye Star never runs out of newspapers, and allows us to meet the
[Arizona] Statutes to actually print and publish within City Limits.” The
proposal then outlined how the Star prepares the newspaper, stating it
“does all typesetting, headlines, placing of advertisements and placing of
articles and photographs into columns” within the City. After the “files and
pages are proofed and finalized, [the] files are uploaded via an FTP site to
our Subcontractor, Signature Offset[,] a commercial newspaper printing
company located at 606 South Madison Drive Tempe, AZ 85281[,] where
the ink to paper process is performed.” The “printed copy bundles” are
then “broken down” at the newspaper’s Buckeye facility and “are marked
for the appropriate method of distribution.” The proposal did not establish
that the Star was printing any weekly newspapers of general circulation
within the City at the time of the November 8, 2018 RFP deadline. The
closest it came to this statutory requirement was the indication that the Star
could print short runs of its newspaper, if needed, to meet A.R.S. § 39-
204(C)(3)’s “printed” requirement.
¶24 The superior court, in granting summary judgment against
the City, relied on the Star’s October 2019 answers to non-uniform
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interrogatories as evidence that it met the statutory “printed” requirement
because it appeared to suggest that some 115 weekly newspapers of general
circulation were printed within the City. But that information was not
included in the Star’s 2018 proposal and was not revealed until well after
the November 8, 2018 RFP deadline. See Code of Ordinances of the City of
Buckeye, Arizona, § 24-3-10(C) (governing “Competitive Sealed Proposals”
and stating they “shall be submitted at the time and place designated in the
request for proposals”) (Aug. 28, 2018 Archive),
https://library.municode.com/az/buckeye/codes/code_of_ordinances/
326436?nodeId=CD_ORD_CH24PR_ART24-3FOPRPR. In fact, the City
learned in a July 2019 admission, that as of the November 2018 deadline,
the Star “did not conduct the print to paper process for its newspapers,
beyond short runs of its publication, within the city limits of Buckeye.” In
fact, the City, in support of its summary judgment motion, noted that the
Star “admitted that of the 5,000 [weekly] copies [issued], all but 150 proof
copies are printed at their Tempe newspaper [printing facility] as of the date
of their Response to the [2018] RFP.” (Emphasis added.)
¶25 The Star’s 2018 proposal and the information revealed during
discovery demonstrate a genuine issue of material fact as to whether it
provided timely information that would have allowed the City to
determine whether it was entitled to preferential treatment under A.R.S.
§ 39-204(C)(3). Consequently, we reverse the grant of summary judgment
and remand this matter to the superior court to allow the trier of fact to
resolve the key factual question.
III. Attorneys’ Fees and Costs
¶26 The Star has requested its attorneys’ fees on appeal under
A.R.S. §§ 12-2030 and -348(A)(4). Because we are reversing the judgment
and remanding back to the superior court, we deny its request. See A.R.S.
§§ 12-2030(A) and -348(A)(4).
CONCLUSION
¶27 For the reasons stated above, we affirm the superior court’s
interpretation of the “printed” requirement of A.R.S. § 39-204(C)(3) but
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reverse the summary judgment granted to the Star and against the City. We
remand to the superior court for further proceedings consistent with this
decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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