Voice of Surprise v. Hall – 8/14/2023
Arizona Supreme Court holds that a municipal clerk cannot reject referendum petition sheets due to an application error when no law gives the clerk discretion to do so.
The City Council for the City of Surprise passed an ordinance which approved a preliminary development plan in the City. Plaintiff sought to refer the ordinance to the ballot. It filed an application for a petition serial number that failed to append the text of the ordinance as required by § 19-111(A). Although the City Clerk realized the error, she accepted the application and issued a serial number for placement on petition sheets that Plaintiff subsequently circulated for signatures. Plaintiff returned to the City Clerk’s office weeks later with sufficient petition sheets bearing signatures supporting referral of the ordinance to the ballot. The developers urged the City Clerk to reject the petitions based on, among other reasons, Plaintiff’s failure to abide by § 19-111(A). The City Clerk did so.
Plaintiff filed a complaint against the City Clerk, other City of Surprise officials, and the developers, asking the superior court to compel the City Clerk to accept the petition sheets and signatures and process them. The superior court denied Plaintiff’s request and entered judgment for all defendants, reasoning that Plaintiff was required to strictly comply with § 19-111(A), and its failure to do so was fatal to the referendum effort. The Court of Appeals affirmed.
The Supreme Court reversed and remanded. It explained that the presumption-reinstatement model—in which a proponent may reinstate the presumption of validity of a signature after a shown deviation from the constitutional requirements by otherwise showing that the signer was otherwise qualified—does not apply to application errors. Rather, the presumption-reinstatement model applies only when statutory errors occur during the signature gathering process and concern requirements that assist interested persons in ascertaining whether the petition signers were qualified electors. Here, there was no challenge that the petition signatures were improperly gathered and were therefore invalid. Indeed, § 19-111(A)’s requirement that the challenged measure’s text be included with the application for a petition serial number does not assist in determining whether petition signers were qualified electors. Meaning, the presumed validity of the petition signatures was not lost due to the application error, and there was, likewise, nothing to reinstate.
The court held that it could not excuse Plaintiff’s failure to comply with § 19-111(A) as a harmless error. However, it further held that the Clerk nevertheless had no discretion to reject the application for non-compliance with § 19-111(A), and was instead required to accept it and issue a serial number. Moreover, the City Clerk was not authorized to reject the petition sheets based on the application defect. Rather, if the City or others wished to challenge the proponent’s compliance with § 19-111(A), it would be required to file suit to do so. The court remanded the matter for further proceedings.
Vice Chief Justice Timmer authored the unanimous opinion.
Posted by: BriAnne Illich Meeds