Arizona Court of Appeals holds that a city clerk may reject a referendum application for failing to strictly comply with statutory requirements even after issuing petitioners a referendum serial number.

An advocacy group seeking to place a referendum challenging a municipal ordinance on the 2022 general election ballot obtained and submitted a completed referendum petition packet to the city clerk who accepted the application, issued a referendum serial number, and instructed the group to submit 3,114 signatures by the required date. The group timely submitted more than 5,000 signatures, but the clerk rejected the signatures on the grounds that the group failed to attach a copy of the ordinance being challenged to the petition application. The group filed a special action petition seeking an order requiring the city clerk to transmit the signatures to the county recorder for verification. The Superior Court rejected the petition finding that the group failed to strictly comply with A.R.S. § 19-111(A) as mandated by § 19-101.01.

The issue on appeal was whether the city clerk could issue a referendum serial number upon an application to which a copy of the challenged ordinance was not attached and then later disqualify the signatures because the ordinance was not attached to the application. The group argued (1) that Leach v. Reagan, 245 Ariz. 430 (2018), prohibited the city clerk from rejecting a valid application for noncompliance with § 19-111(A); (2) that requiring strict compliance with § 19-111(A) rendered § 19-121.01, which instructs that signatures must be forwarded to verification if they meet the constitutional minimum, mere surplusage; (3) that rejecting the application for failure to attach the ordinance would be a futile act because the clerk itself was the keeper of the ordinance; and (4) that the city clerk should be estopped from rejecting the signatures.

The Court of Appeals disagreed with each argument. First, the Court distinguished Leach because it did not address the same sort of noncompliance at issue in this case. Second, it rejected the argument that strict compliance made § 19-121.01 mere surplusage, reasoning that that section merely addressed a subset of actions the clerk must take in the referendum process. Third, it held that requiring that the ordinance be attached was not a futile act because it was statutorily mandated and, among other reasons, a referendum may challenge less than the full text of the ordinance, so attaching the relevant language makes clear what is being challenged. Finally, the Court ruled that the clerk was not estopped from, and it was not inequitable to, reject the application because the burden of strict compliance is on the applicant, and estoppel does not apply against the state in matters affecting governmental or sovereign functions.

Judge Thumma authored the opinion, in which Judges Bailey and Gass joined.

Posted by: Michael Price