Jones v. Paniagua – 3/26/2009

March 30, 2009

Arizona Court of Appeals Division One Holds that the Number of Valid Signatures Required for a Valid Referendum Petition is Based on the Number of Votes Cast at the Most Recent Mayoral or City Council Election.

The Phoenix City Council approved an amendment and zoning change to the City’s General Plan Land Use Map to allow for the development of duplexes and apartments.  Jones submitted an application for a referendum to challenge the change.  Pursuant toPhoenixCity Charter Ch. XVI, § 3, the Clerk required the referendum petition to contain 9,798 valid signatures, which is ten percent of the total number of votes cast at the last mayoral election.  Jones argued, in response, that, pursuant to A.R.S. § 19-142(A), a valid referendum petition required only 2,727 signatures, ten percent of the votes cast at the more recent city council run-off election.  Jones obtained 8,000 signatures, but the Clerk rejected the petition.  Jones filed a complaint for special action, requesting, among other things, that the trial court orders the clerk to calculate the required number of signatures as 2,727, and that the trial court award Jones his attorneys’ fees.  The trial court awarded Jones relief on the merits and awarded him attorneys’ fees.  This appeal followed.

The Arizona Appeals Court first concluded that Phoenix City Charter Ch. XVI, § 3, which requires that valid referendum petitions contain signatures equaling at least ten percent of the votes cast at the most recent mayoral election, conflicts with the plain meaning of A.R.S. § 19-142(A), which states that the number of signatures required for a valid referendum petition shall be calculated based on the number of votes cast at the most recent mayoral or city council election.  A.R.S. § 19-142(A), as a state statute, supersedes the Phoenix City Charter.  And becausePhoenix had held a city council election since the time it had held a mayoral election, Jones was only required to collect 2,727 signatures, ten percent of the number of votes cast at the city council election.  Because Jones had collected 8,000 signatures, his referendum petition was valid.

Next, the appeals court held that Jones was entitled to an award of his attorneys’ fees pursuant to A.R.S. § 12-2030, which directs courts to award attorneys’ fees to a successful party in a mandamus action.  The Court explained that Jones’ lawsuit could still be a mandamus action despite the fact that his lawsuit was brought as a statutory special action.  The Court then concluded that Jones’ lawsuit was indeed a mandamus action – and thus that Jones was entitled to an award of attorneys’ fees – because Jones filed a complaint for special action requiring the Clerk to perform his duties by calculating the required the number of referendum petition signatures at 2,727.

Judge Kessler authored the opinion; Judges Timmer and Gemmill concurred.