Sklar v. Town of Fountain Hills – 11/25/2008

December 9, 2008

Arizona Court ofAppeals Division One Holds That Referendum Petitions Must Strictly Comply with A.R.S. § 19-101(A), Which Requires Them to Identify the Principle Provisions of the Challenged Government Acts.

In 2007, Fountain Hills (the “Town”) amended its General Plan and rezoned a 1276-acre parcel of land.  Save Our Small Town (“SOST”) subsequently circulated two referendum petitions on the measures.  Those petitions were certified and both measures were put on hold pending a vote of the electors.  Sherry Sklar filed a complaint seeking to invalidate the referenda and enjoin the Town from placing them on the ballot, and SOST intervened as a defendant.  Both parties moved for summary judgment.  The trial court granted Sklar’s motion.  SOST filed an expedited appeal. 

The ArizonaAppeals Court affirmed.  The Court first set forth the general principles governing referendum petitions, noting that although citizens have the constitutional right to referendum, referendum petitions must “comply strictly with applicable constitutional and statutory provisions.”  Sherrill v. City of Peoria, 189 Ariz. 537, 540, 943 P.2d 1215,1218 (1991).  Strict compliance is proper because referenda may hold up the effective date of measures that may in fact represent the wishes of the majority.  Although strict compliance is required, A.R.S. § 19-111 requires that specific requirements for referendum petitions be broadly construed.

Applying these principles, the Court held that SOST’s referendum petitions were defective under A.R.S. § 19-101(A), which requires petitions to include a 100-word “description of . . . the principal provisions of the measure sought to be referred.”  Not only did the petitions fail to include the principal provisions of the measures, they failed to provide any description of the provisions.  The Court rejected SOST’s argument that the petitions were proper because they attached copies of the subject litigation, explaining that the attachment requirement is a separate and distinct requirement than the description requirement, and is found in a different statute – A.R.S. § 19-121(E).  The Court also rejected SOST’s request that it broadly construe § 19-101(A) to approve the language utilized in the petitions.  It explained that adoption of SOST’s proposed standard would not further the purpose of § 19-101(A), which is to ensure full disclosure of the measure that is to be referred, because SOST’s descriptions merely described the purported anticipated effect of the provisions and were therefore “uninformative” and “unhelpful.”  Moreover, the Court reasoned that the descriptions were improper because they were subjective opinions, which should not be included in referendum petitions according to Kromko v. Superior Court, 168 Ariz. 51, 59, 811 P.2d 12, 20 (1991).

The Court awarded Sklar costs on appeal pursuant to A.R.S. § 12-341, but denied her request for attorneys’ fees and costs under ARCAP 25 or A.R.S. § 12-349, finding that SOST’s appeal was neither frivolous nor unjustified.

Presiding Judge Winthrop authored the opinion; Chief Judge Timmer and Judge Hall concurred.