SAVE GLENDALE NOW v. CITY OF GLENDALE

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 08/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) Plaintiffs/Appellants ) ) v. ) ) CITY OF GLENDALE, a municipal ) corporation; and PAM HANNA, in ) her capacity as City Clerk of ) the City of Glendale, ) ) Defendants/Appellees. _______________________________________ ) 1 CA-CV 12-0520 EL SAVE GLENDALE NOW, a political committee organized under Titles 16 & 19 Arizona Revised Statutes; ROD WILLIAMS, as a taxpayer and citizen of the City of Glendale and Chairman of Save Glendale Now; CONNIE WILHELM, as Treasurer of Save Glendale Now, ¶1 This accelerated election DEPARTMENT E Maricopa County Superior Court No. CV2012-010693 DECISION ORDER appeal arises out of the rejection of initiative petitions by the City of Glendale and Pam Hanna, in (collectively, her capacity Clerk ), Save Glendale Now ( SGN ). to the City transaction transactions effective Charter privilege to date those of an as submitted by Clerk a for political the City committee, The initiative proposed an amendment which would (sales) in City tax effect ordinance have returned rates before adopted for most August 1, by the the City s types 2012, Glendale of the City Council in June 2012 which increased those rates by seven-tenths of one percent. The initiative also proposed that no such tax shall be levied at a rate in excess of the rates specified in the measure unless first approved by the voters. The superior court agreed with the Clerk that the description of the proposed measure contained in the petitions was misleading and, thus, denied SGN relief. ¶2 We disagree with the summary was not misleading. SGN substantially see infra Clerk. and complied ¶¶ 12-13, and the court See infra ¶¶ 6-11. with other statutory timely filed the See infra ¶¶ 14-19. process superior petitions and hold the We also hold requirements, petitions with the We thus direct the Clerk to file in accordance with applicable statutes, reverse the superior court s denial of relief, and remand for further proceedings consistent with this order. Summary Description ¶3 By description statute, of no an more initiative petition than words 100 of must the include a principal provisions of the proposed measure ( summary description ). See Ariz. Rev. Stat. ( A.R.S. ) §§ 19-102(A) (2002), -111(A) (Supp. 2011). Accordingly, in its initiative petitions, SGN included the following summary description: On June 12, 2012 the Glendale City Council voted to increase the transaction privilege 2 (sales) tax rate by seven-tenths percent for all types of transactions except residential rental, mining, and transient lodging. This initiative would reverse the sales tax increase by amending the City Charter to set the sales tax rates for all transaction categories at the rates in effect prior to the increase and require the Council to receive approval from a majority of the qualified electors voting on the question at an election prior to any future sales tax increase. ¶4 advised In SGN misleading rejecting that its because the initiative summary the petitions, description proposed was initiative the Clerk inaccurate did not by and its express language and under existing Arizona law reverse the sales tax increase by amending the City Charter to set the sales tax rates for all transaction categories at the rates in effect prior to the increase ( the reverse clause ), nor require the Council to receive approval from a majority of the qualified electors voting on the question at an election prior to any future sales tax increase ( the approval clause ). Accordingly, the Clerk concluded SGN had failed to comply with A.R.S. §§ 19-102(A) and 19-111(A). ¶5 The superior court agreed with the Clerk that the reverse clause was inaccurate and [] capable of misleading the electorate who were asked to sign the Initiative Petitions. In so holding, the court also determined the Clerk had the legal authority to reject the petitions 3 per A.R.S. § 19-122(A). That statute requires a city clerk who refuses to accept and file an initiative petition to provide the person who submitted the petition with a written statement of the reason for the refusal. A.R.S. § 19-122(A) (Supp. 2011); see A.R.S. § 19- 141(A) (2002) (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 ). ¶6 On appeal, SGN joined by amicus, argues forcefully that filing officers, such as the Clerk here, are not authorized by the statutes petitions based governing on their initiative s summary Although we too question officers to act as initiatives subjective description the is whether to reject determination inaccurate our gatekeeper initiative or statutes for the that an misleading. allow accuracy filing of an initiative s summary description, as one amicus puts it, this is not an issue we need to decide under the circumstances of this case. This is because, as a matter of law, SGN s description was neither misleading nor inaccurate. summary Wilhelm v. Brewer, 219 Ariz. 45, 46, ¶ 2, 192 P.3d 404, 405 (2008) (courts apply substantial compliance rule in considering challenges to form of initiative petitions); League of Ariz. Cities and Towns v. Brewer, 213 Ariz. 557, 559, ¶ 7, 146 P.3d 58, 60 (2006) (whether initiative petition legally 4 sufficient, thereby allowing pre-election review and removal from the ballot presents question of law appellate court reviews de novo). ¶7 As discussed, the initiative proposed returning Glendale s sales tax rates to those in effect before August 1, 2012. Contrary to the City s argument both in the superior court and on appeal, the reverse clause accurately describes this aspect of the proposed initiative. SGN s use of the word reverse than in that clause does no more inform petition signers the proposed initiative would reverse, that is, return or reinstate, reverse, the does prior not, tax as rates. the City SGN s use argues, of the suggest that word if enacted, the initiative would somehow act retroactively instead of prospectively. Indeed, this argument ignores the reverse clause viewed as a whole: This initiative would reverse the sales tax increase by amending the City Charter to set the sales tax rates for all transaction categories at the rates in effect prior to the increase. (Emphasis added.) See Wilhelm, 219 Ariz. at 46, ¶ 2, 192 P.3d at 405 (substantial compliance rule applicable to initiatives recognizes that before errors in petition formalities will bar measure from ballot, court must determine purpose of whether petition statutory or considered constitutional lack of strict or technical compliance). 5 as a whole requirements, fulfills despite We thus disagree with the superior court that the word reverse as used in the summary description is inaccurate and capable of misleading the electorate. ¶8 Although address the approval clause, it too is not inaccurate or misleading. As discussed, if the passed, superior the court proposed did not initiative would require voter approval if the City subsequently sought to increase the tax rates over those specified in the initiative. The approval clause accurately captures this point. ¶9 The City argues the approval clause is nevertheless misleading because the City would actually be unable to submit future tax increases to the voters because the Arizona Constitution limits the authority of city governing bodies to submit certain matters to the vote of the people. See generally City of Scottsdale v. Superior Court, 103 Ariz. 204, 206, 439 P.2d 290, 292 (1968); City of Tempe v. Del E. Webb Corp., 13 Ariz. App. 597, 600-01, 480 P.2d 18, 21-22 (1971). ¶10 That the proposed initiative may, if approved, conflict with the Arizona Constitution or state law -- questions we express no opinion on -- does not mean the approval clause fails Simply to characterize put, the City s accurately argument the proposed confuses initiative. accuracy of the approval clause with whether the proposed initiative, if passed, 6 will pass constitutional supreme court powers doctrine Constitution, legislating conflict has long with any the statutory recognized, embodied Arizona on or in Arizona even under Article citizens issue, muster. But, the 3 as our separation of the of Arizona are not precluded from though the legislation might Constitution or state law. The constitutionality of such a measure will only be tested after it becomes law. Winkle v. City of Tucson, 190 Ariz. 413, 415, 949 P.2d 502, 504 (1997) (internal citations omitted; emphasis in original). conflict Accordingly, even if the proposed initiative may with the Arizona Constitution or state law, that possible conflict does not render the approval clause inaccurate or misleading. ¶11 Therefore, authorized summary to we reject description agree the was with petitions inaccurate SGN the based on or Clerk her misleading. was not belief the We thus reverse the superior court s ruling to the contrary. The City s Alternative Arguments ¶12 the The City argues, that, nevertheless, we should affirm superior grounds. court s judgment in its favor on alternative First, it argues, as it did in the superior court, that SGN did not comply with A.R.S. § 16-902.01(F) (Supp. 2011) because the statement of organization it filed with the Clerk 7 did not include the official serial number of the initiative petition in its name. As relevant here, A.R.S. § 16-902.01(F) states a political committee s statement of organization shall include serial in the number initiative name for of the measures only statutory requirements. the political petition, require if committee the assigned. 1 substantial official As noted, compliance with Wilhelm, 219 Ariz. at 47, ¶¶ 5-7, 192 P.3d at 406; Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991). In deciding whether there is substantial compliance, a court should consider several factors, including the nature of the constitutional or statutory requirement, the extent to which the petition differs from the requirement, and the purpose of the requirement. Feldmeier v. Watson, 211 Ariz. 444, 447, ¶ 14, 123 P.3d 180, 183 (2005). ¶13 Here, two factors cause us to conclude substantially complied with A.R.S. § 16-902.01(F). SGN First, the serial number was recorded on one portion of SGN s statement of organization, as amended, although SGN did not include it in the name block 1 on the statement. Arizona courts have found The City also asserts the petition was fatally defective because SGN s name did not contain a statement of its position for or against the measure. However, the Clerk did not rely on this ground in her written statement of the reason for refusal and as a result we do not address this issue in our decision. See A.R.S. 19-122(A) (requiring the clerk to provide the person who submitted the petition with a written statement of the reason for refusal). 8 substantial compliance for petitions with misplaced text. Wilhelm, 219 Ariz. at 47, ¶¶ 5-7, 192 P.3d at 406 See (finding petition contained title in compliance with Arizona law even though title was not centered nor did it precede the text). Second, despite the absence of the serial number in SGN s name, its statement statute, which proposed. of organization is to SGN s identify statement initiative by serial number. record before us that fulfilled the of the purpose specific of initiative organization identified the being the Further, there is nothing in the suggests there could be any confusion regarding SGN s initiative since it circulated only one proposed initiative measure. Accordingly, SGN substantially complied with A.R.S. § 16-902.01(F). ¶14 Second, the City argues SGN s initiative petitions were untimely because they were not filed four months before the next ensuing election as that phrase is used in A.R.S. § 19143(B) (2002). That statute provides as follows: If an ordinance, charter or amendment to the charter of a city or town is proposed by initiative petition, it shall be filed with the city or town clerk, who shall submit to the voters of the city or town at the next ensuing election. A.R.S. § 19-143(B). ¶15 As we understand the City s argument, SGN was required to submit the initiative petitions four months before the City s 9 next ensuing City s election primary Accordingly, initiative the election City petitions which, record scheduled argues to the the SGN for was clerk by reflects, August required April is 28, to 2012. submit 29, the 2012. the The superior court rejected this argument, and so do we. ¶16 In City of Flagstaff v. Mangum, 164 Ariz. 395, 793 P.2d 548 (1990), our supreme court addressed what is the next ensuing election under A.R.S. § 19-143 when, as here, a municipality does not have a charter or ordinance provision that prescribes requirements for initiative petitions. After initially holding A.R.S. § 19-143 did not establish a filing deadline 2, the court then determined what was the applicable deadline for the election at issue in that case - a local general election scheduled for March 6, 1990. Relying on A.R.S. § 19-141(C) (currently A.R.S. § 19-141(D)), which provides that the procedures for municipal initiatives shall be as nearly as practicable the same as the 2 procedures for statewide The applicable provision of A.R.S. § 19-143 discussed in Mangum, read as follows: if an . . . amendment to the charter of a city or town is proposed by initiative petition, it shall be filed with the city or town clerk, who shall submit it to the voters of the city or town at the next ensuing election held therein not less than ninety days after it was first presented to the city or town council. In 1991, the legislature amended this provision to require the clerk to submit the initiative petition to the voters at the next ensuing election, deleting the ninety day condition. 1991 Ariz. Sess. Laws, 3rd Special Sess., Ch. 1, § 23. 10 initiatives, and the provision of the Arizona Constitution that establishes a four month filing deadline for such initiatives, Ariz. Const. art. 4, pt. 1, § 1(4), the court concluded the initiative petition at issue was untimely because it had not been filed four months before the March 6 general election. ¶17 The court then decided an issue we believe resolves the City s timing argument here. This issue was whether, even if the initiative was untimely for the March 6 general election, the initiative election. could be submitted to the voters at a later To answer this question the court had to determine whether the initiative could be submitted four months in advance of any election, primary, general or special. The court answered this question no, and held that A.R.S. § 19-121(D) (2002) governed local initiatives, absent a conflicting local ordinance (which, as noted, is the case here). Ariz. at 400, 793 P.2d at 553. Mangum, 164 That statute then, as now, provides: Initiative petitions which have not been filed with secretary of state as of 5:00 p.m. on the day required by the constitution prior to the ensuing general election after their issuance shall be null and void, but in no event shall the secretary of state accept an initiative petition which was issued for circulation more than twenty-four months prior to the general election at which the measure is to be included on the ballot. 11 A.R.S. § 19-121(D). The court went on to state: Under A.R.S. § 19-121(D), initiative petitions are null and void if not filed by 5:00 p.m. on the day required prior to the ensuing general election after their issuance. Mangum, 164 Ariz. at 400, 793 P.2d at 553 (emphasis in original). ¶18 Applying Mangum here, the initiative petitions in this case were issued on June 20, 2012 and filed on July 5, 2012, more than four months before the ensuing general election after their issuance. Thus, SGN timely filed the initiative petitions with the Clerk. 3 ¶19 We acknowledge the City s reliance on Cuvelier v. Schmitz, 193 Ariz. 479, 974 P.2d 995 (1999). In our view, that case is distinguishable. Unlike the situation before us, the town code there specifically provided that initiatives could be voted on at election. the next ensuing primary, general or special As recognized in Mangum, a municipality may describe the manner of exercising initiatives within the restrictions of 3 The City also argues A.R.S. § 19-143(B) and its next ensuing election language must control the timing issue presented in this appeal because A.R.S. § 19-141(A) essentially states that the statutes pertaining to local initiatives shall take precedence over any inconsistent provisions in the other statutes applicable to initiatives. We see no inconsistency here as A.R.S. § 19-143(B) does not establish a filing deadline. 12 general laws. Glendale, unlike the municipality in Cuvelier, has not done so. Conclusion ¶20 and For the foregoing reasons, we direct the Clerk to file process applicable SGN s initiative statutes, reverse petitions the in superior accordance court s with denial of relief, and remand to the superior court for further proceedings consistent with this order. As the prevailing party and pursuant to its request, SGN is entitled to an award of fees and other expenses under A.R.S. § 12-2030 (2003). On remand, the superior court shall determine the amount of such fees and other expenses to award to SGN for proceedings in that court and in this court. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ANDREW W. GOULD, Presiding Judge /s/ RANDALL M. HOWE, Judge 13

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