Voice of Surprise v. Skip Hall

SUPREME COURT OF ARIZONA
VOICE OF SURPRISE, et al., ) Arizona Supreme Court
) No. CV-23-0117-PR
Plaintiffs/Appellants, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 22-0696 EL
SKIP HALL, et al., )
) Maricopa County
Defendants/Appellees. ) Superior Court
) No. CV 2022-013360
__________________________________)
FILED 06/23/2023
DECISION ORDER
Before the Court is an expedited election appeal regarding an
effort by Appellants Voice of Surprise, a political action committee,
and Quintus Schulzke, its chairperson, to refer Surprise, Arizona,
City Council Ordinance 2022-18 to a vote of the city’s electorate.
We issue this decision order with a more explanatory opinion to
follow so that the parties can proceed expeditiously to conclude this
matter. The Court’s decision is unanimous.
Ordinance 2022-18 adopted a preliminary development plan for a
large area of property that Appellees Dominium, Inc. and Truman Ranch
46 SWC LLC (collectively, “Private Defendants”) seek to develop. To
succeed in referring the Ordinance to the ballot, Appellants were
required to gather supportive signatures from ten percent of the
electorate who voted in the previous election at which a mayor or
council members were chosen. See Ariz. Const. art. 4, pt. 1, § 1(8);
A.R.S. § 19-142(A). Appellants initiated that effort on August 29,
2022, by filing an application for a petition serial number and a
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statement of organization with the City Clerk for the City of
Surprise. See A.R.S. § 19-111(A). But the application did not set
forth the text of Ordinance 2022-18, as required by § 19-111(A).
Although the City Clerk realized the error, she accepted the
application without comment and issued a serial number for placement
on petition sheets Appellants circulated for signatures.
Appellants returned to the City Clerk’s Office on September 16
and submitted petition sheets bearing 5,432 signatures supporting
referral of Ordinance 2022-18 to the ballot. There is no dispute
that the petition sheets properly attached the Ordinance for review
by people signing the petition sheets. See A.R.S. § 19-112(B)
(requiring attachment). Thereafter, Appellee Dominium urged the City
Clerk to reject the petitions for multiple reasons, including
Appellants’ failure to attach the Ordinance to the application for a
petition serial number. On October 5, the City Clerk rejected all
the petition sheets and signatures based on this application error.
Appellants initiated this action by filing a complaint against
the City Clerk, other City of Surprise officials, and the Private
Defendants pursuant to A.R.S. § 19-122(A). Appellants asked the
superior court to compel the City Clerk to accept the petition sheets
and signatures and process them in accordance with A.R.S. § 19-121.01
to determine whether enough valid signatures supported placing the
referendum on the ballot. See A.R.S. § 19-141(A) (applying A.R.S.
§§ 19-101 to -161 to referenda concerning municipal legislation).
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Dominium filed an answer and counterclaim challenging the legal
sufficiency of the referendum for multiple reasons, including the
application error.
After holding an evidentiary hearing on Appellants’ application
for preliminary and permanent injunctive relief, the court denied
Appellants’ requested relief and entered judgment for Appellees. It
reasoned that because Appellants were required to strictly comply
with the statutory requirements directing the referendum process, see
A.R.S. § 19-101.01, Appellants’ failure to file an application that
strictly complied with § 19-111(A) was fatal to the referendum
effort. The court of appeals affirmed. See Voice of Surprise v.
Skip Hall, 2023 WL 3107268, at *5 ¶ 26 (Ariz. App. Apr. 27, 2023).
We granted review to address whether the application error entitled
the City Clerk to reject the petition sheets and all signatures.
We agree with the superior court and the court of appeals that
Appellants failed to strictly comply with § 19-111(A) by omitting the
text of Ordinance 2022-18 in the application for a petition serial
number. We reject Appellants’ argument that this error served only
to destroy the legal presumption that the gathered signatures are
valid, and that Appellants restored that presumption by showing that
the objective underlying § 19-111(A)’s requirement was otherwise
satisfied. There is no challenge presently that the petition
signatures were improperly gathered from qualified electors and
therefore invalid. Whether or not the application complied with
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§ 19-111(A), the validity of the signatures is unaffected, and there
is nothing to “restore.”
The application for a petition serial number cannot be corrected
at this late date to include the text of Ordinance 2022-18. See
Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5 (1972) (disagreeing
that referendum proponents could “amend their petitions to comply
with the verification provision” outside the time permitted for
initiating the referendum effort). Nor can we excuse Appellants’
omission as a harmless error on the ground that neither the City
Clerk nor the electorate were confused about which Ordinance was the
subject of the proposed referendum. Doing so would mean advancing a
referendum effort that only substantially complied with statutory
requirements in violation of the legislative directive for strict
compliance. See § 19-101.01. Notably, Appellants do not argue
requiring strict compliance with § 19-111(A)’s requirement to include
the text of a challenged ordinance in the application as well as the
petition sheets unreasonably hindered or restricted Appellants’
constitutional right of referendum. See id.
We also disagree with Appellants that their reliance on the
City Clerk’s acceptance of the application excused strict compliance
with § 19-111(A). The Clerk performs a ministerial role in accepting
applications and issuing petition serial numbers. She must accept
and process any application submitted on the required form without
regard to its legal sufficiency. Section 19-111(A) only authorizes
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the Clerk to reject an application if it is unaccompanied by the
applicant’s statement of organization. That did not occur here.
Consequently, the Clerk had no discretion to reject the application
but was required to accept it and issue a serial number. Doing so
did not cure Appellants’ non-compliance with § 19-111(A).
The City Clerk also had no obligation to tell Appellants they
had omitted the text of Ordinance 2022-18 from the application.
Section 19-111(B) formerly authorized city clerks to “advise the
person who has submitted the petition with a written statement of any
defects of which [the city clerk] is aware, but the [city clerk]
shall not refuse to assign a number to the petition.” See 1991 Ariz.
Sess. Laws ch. 1, § 1 (3d Sp. Sess.). But the legislature amended
the statute to remove that provision in 1991. Id. This intentional
elimination of statutory discretion by the Clerk to advise applicants
of defects also means she certainly had no obligation to advise
Appellants of the defect here.
Nevertheless, we conclude that the City Clerk erred by rejecting
the petition sheets and signatures submitted by Appellants. Sections
19-114(B), 19-121(C), 19-121.01, and 19-121.04 direct with exacting
detail how the Clerk must process the petition sheets, count the
signatures, and determine whether sufficient signatures support the
referendum. For example, within twenty days of receiving a
referendum petition, the Clerk must remove petition sheets not
containing a circulator’s completed, signed, and unmodified
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affidavit. § 19-121.01(A)(1)(d). But nothing authorizes the Clerk
to reject petition sheets and signatures because the application for
a serial number was legally insufficient. See Leach v. Reagan, 245
Ariz. 430, 436 ¶ 23 (2018) (“Relatedly, nothing in Title 19
authorizes or requires the Secretary to disqualify petition sheets or
signatures if the statement of organization, or any amendments to it,
did not comply with § 16-906. In contrast, elsewhere in Title 19,
the legislature has explicitly stated the Secretary’s obligation to
investigate the accuracy of initiative-related filings.”).
At oral argument before this Court, the City Clerk argued that
§ 19-101.01’s strict compliance directive for the “application and
enforcement” of the referendum statutes authorized her to reject the
petition sheets and signatures. We disagree. That provision does
not authorize the Clerk or anyone else to enforce strict compliance
with the statutes. And determining whether an application is legally
sufficient is a matter for a court to decide, not the Clerk. See W.
Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 431 (1991) (“[O]ur
statutes do not authorize, nor would our constitution permit, [the
Secretary of State’s Office] to pass ultimate judgment on whether
petitions comply with constitutional requirements. That is a
judicial function.”).
The City Clerk’s lack of authority to reject the petition sheets
and signatures for the application error does not end this matter.
As mentioned, Dominium filed a counterclaim challenging the
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referendum petitions on multiple bases, including that the
application failed to strictly comply with § 19-111(A). Appellants
did not answer the counterclaim, but the time for doing so had not
expired before the superior court entered its ruling on the request
for a preliminary and permanent injunction. As Appellants note, it
was not able to assert a laches defense against the City defendants.
See Mohave Cnty. v. Mohave-Kingman Ests., Inc., 120 Ariz. 417, 421
(1978) (“In general, equitable defenses . . . will not lie against
the state, its agencies or subdivisions in matters affecting
governmental or sovereign functions.”). But Appellants can assert
the defense against Dominium, and they should be given that
opportunity on remand.
To clarify, we have decided that Appellants did not strictly
comply with § 19-111(A), and that error cannot be undone. All
parties have had ample opportunity to be heard on that issue, and the
superior court is bound by our decision. We remand to permit
Appellants to file an answer to the counterclaim and raise any
applicable equitable defenses against Dominium. By doing so, we take
no position on the merits of any such defenses.
FOR THE FOREGOING REASONS,
IT IS ORDERED vacating the court of appeals’ opinion.
IT IS FURTHER ORDERED reversing the superior court’s judgment
and remanding to that court to permit Appellants to answer the
Dominium counterclaim and allege any applicable equitable defenses.
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The court should thereafter address the merits of any such defenses.
IT IS FURTHER ORDERED a written opinion detailing the Court’s
reasoning will follow in due course.
DATED this 23rd day of June, 2023.
____________/s/_______________
ROBERT BRUTINEL
Chief Justice
TO:
Timothy A LaSota
Robert W Wingo
Ellen M Van Riper
Melinda A Bird
Jeffrey D Gross
Cameron C Artigue
Hon Scott A Blaney
Michael W Zimmerman
Jennifer Wright
Nancy L Davidson
Daniel J Adelman
Kory A Langhofer
Thomas J Basile
Amy M Wood
Hon Joseph C Welty
Hon Danielle Viola
Hon Jeff Fine
blc