Arizona Court of Appeals Division Two Holds That in the Absence of a Statement in a Petition Circulator’s Affidavit That the Printed Names and Addresses Were Printed in the Circulator’s Presence, and Alteration to a Printed Name or Address Does Not Result in a False Affidavit, and Therefore, Only the Altered Signatures Are Invalid.

In October 2006, the City of Bisbee passed two ordinances to regulate litter, abandoned vehicles, outdoor storage, junk, and dilapidated buildings.  A referendum petition was issued for each ordinance on Harris’ request.  One month later, Harris turned in signature sheets for each ordinance and requested that a referendum election be held.  The City refused to process the signature sheets, indicating that on a number of signatures sheets, the addresses had been corrected not in the presence of the signers in violation of A.R.S. § 19-112(A)and (C).  The City removed these signature sheets as invalid.  The City also removed another signature sheet because the affidavit accompanying it was not notarized.  Harris filed a special action for each of the referendum petitions, asking that the City be ordered to accept and process them. 

The trial court found legally insufficient all of the signatures on the un-notarized signature sheet.  It also found invalid all signatures for which the address or printed name had been altered outside of the signer’s presence and without the signer’s permission.  The court noted however that in such a case only the altered signature was invalid and all others on the sheet were to be counted.   The City appealed; Harris cross-appealed. 

On appeal, the City argued that the trial court erred by invalidating only the altered signatures, rather than the entire signature page on which an altered signature was found, and by finding the two petitions legally sufficient under A.R.S. § 19-112.  Harris argued that § 19-112 does not apply to his special action, limiting the Appellate Court’s review to abuse of discretion.   Addressing Harris’ argument first, the Arizona appeals Court determined that § 19-112 is applicable to the action because the language of § 19-122(A) provides that if the clerk refuses to transmit a petition to the county recorder to be certified, a citizen can apply for a writ of mandamus.  Therefore, the Court found that Harris would only be entitled to relief if the petitions were legally sufficient. 

Turning to the legal sufficiency of the petitions, the Court found that the affidavits accompanying the signature sheets failed to include language affirming that the name and address of each elector was printed in the presence of the elector and the petition circulator on the date indicated, as required by § 19-112(C).  Harris argued that he used the language provided in § 19-112(D) and therefore the affidavits complied with the law.  Citing Western Devcor, Inc. v. City of Scottsdale, 168Ariz. 426, 814 P.2d 767 (1991), the Court reasoned that despite the use of the sample affidavit in the statute, the affidavit language used by Harris did not strictly comply with the law.  However, the Court explained, a lack of strict compliance only invalidates signatures of a referendum petition if the statute expressly dictates that result; otherwise, it simply destroys the presumption of validity.  Because § 19-122(C) does not expressly state that a failure to comply strictly will result in the invalidation of signatures, Harris was permitted to demonstrate that the printed names and addresses had been written in the presence of the electors and circulator.  Based on the trial court’s findings, sixty-three signatures for one of the petitions and sixty signatures for the other were invalidated.   

The Court further reasoned that because the affidavits did not include a statement affirming that the addresses and printed names had been written in the presence of the elector, the fact that specific addresses and printed names had been altered outside of the electors’ presence would not invalidate the entire signature sheet but only the altered signature.  The Court explained that had the affidavit strictly complied with the law, the alterations would have rendered the certification by the circulator false and all signatures on a page where an alteration was made would have been disqualified. 

After removing all invalidated signatures, the Court determined that 198 valid signatures remained for one petition and 195 valid signatures remained for the other.  Harris had been required to gather 169 valid signatures for each to cause a referendum election, thus, the Court upheld the trial court’s judgment and directed the City to process the petitions. 

Judge Brammer authored the opinion, Judges Howard and Pelander concurred.