2019 2:58:36 pm arizona superior court, pima county...

FILEDGARY L. HARRISON

CLERK, SUPERIOR COURT 8/16/2019 2:58:36 PM

ARIZONA SUPERIOR COURT, PIMA COUNTY

HON. D. DOUGLAS METCALF CASE NO. C20193542

DATE: August 16, 2019

BENNY WHITE, ANN HOLLIS, and MIKE EBERT

Plaintiffs,

vs.

CITY OF TUCSON,ROGER RANDOLPH,F ANN RODRIGUEZ, JONATHAN ROTHSCHILD, REGINA ROMERO,PAUL CUNNINGHAM, PAUL DURHAM,SHIRLEY SCOTT, RICHARD FIMBRES, STEVE KOZACHIK,BRAD NELSON,ALLY MILLER,RAMON VALDEZ, SHARON BRONSON, STEVE CHRISTY, and RICHARD ELIAS

Defendants

MARION CHUBON,STEVE DIAMOND,JOEL FIENMAN, and PEOPLE'S DEFENSE COMMITTEE

Real Parties in Interest

______________________________________ R U L I N G ________________________________UNDER ADVISEMENT RULING ADDRESSING LEGAL ISSUES RAISED IN PLAINTIFFS’ AMENDED VERIFIED COMPLAINT

Gina SweckerJudicial Administrative Assistant

Date: August 16, 2019______

UNDER ADVISEMENT RULINGCase No.: C20193542

On July 3, 2019 an initiative petition was filed with the Tucson City Clerk’s Office seeking to place an

initiative on the City’s November 5, 2019 general election ballot. It was assigned the number 2018-1001

(hereafter “the Initiative”).

Plaintiffs, who all reside in Tucson and are qualified electors and registered voters, have filed suit

seeking special action and injunctive relief to prevent the City from placing the Initiative on the November 5

ballot. They claim Tucson’s initiative process violates the Arizona Revised Statutes and the Arizona Constitution. They also claim that not enough valid signatures were gathered to meet the threshold required for

placement on the ballot. Because of time constraints, the Parties agreed, and the Court so ordered, that it would

address the legal arguments first, and if that did not resolve the case, it would hold an evidentiary hearing on the

remaining factual issues. This ruling addresses the legal issues.

1. Do the Tucson Code and Charter Provisions Concerning Voter Initiatives Violate the Arizona

Constitution or Arizona Revised Statutes?

Plaintiffs argue the process the City uses to determine the number of signatures required for an initiative

to qualify for placement on the ballot is invalid because it conflicts with the Arizona Revised Statutes and

Arizona Constitution.Under both the City Code and the Charter1, for a proposed ordinance to qualify for placement on the

ballot, a petition must be “signed by fifteen (15) percent of the qualified electors of the city, computed on the vote for the candidates for mayor at the last preceding general municipal election at which a mayor was

elected.”Plaintiffs argue the City’s formula violates the Arizona Revised Statutes and Constitution.

1 Article VIII of Chapter 12 of the Tucson City Code provides: “Any proposed ordinance or amendment to the Charter of the City of Tucson may be submitted to the mayor and council by a petition signed by fifteen (15) percent of the qualified electors of the city, computed on the vote for the candidates for mayor at the last preceding general municipal election at which a mayor was elected.”

Chapter XIX, § 1 of the Tucson Charter similarly provides: “Any proposed ordinance may be submitted to the mayor and council, by a petition signed by fifteen (15) percent of the qualified electors of the city, computed on the vote for the candidates for mayor at the last preceding general municipal election at which a mayor was elected.”

_____Gina Swecker_____Judicial Administrative Assistant

Date: August 16, 2019______

UNDER ADVISEMENT RULING

Case No.: C20193542

Article 4, Part. 1, §1(8) of the Arizona Constitution provides:

The powers of the initiative and the referendum are hereby further reserved to the qualified

electors of every incorporated city, town, and county as to all local, city, town, or county matters

on which such incorporated cities, towns, and counties are or shall be empowered by general

laws to legislate. Such incorporated cities, towns, and counties may prescribe the manner of

exercising said powers within the restrictions of general laws. Under the power of the initiative

fifteen per centum of the qualified electors may propose measures on such local, city, town, or

county matters, and ten per centum of the electors may propose the referendum on legislation

enacted within and by such city, town, or county. Until provided by general law, said cities and

towns may prescribe the basis on which said percentages shall be computed, (emphasis added).

Section 19-143(A) of the Arizona Revised Statutes, which addresses how the 15 percent figure from the

constitution is calculated, states as follows:The whole number of votes cast at the city or town election at which a mayor or councilman was

chosen last preceding the submission of the application for an initiative petition is the basis for

computing the number of qualified electors of the city or town required to sign the petition unless

the city or town by charter or ordinance provides an alternative basis for computing the number

of necessary signatures.

Plaintiffs argue that A.R.S. § 19-143(A) is a general law under Article 4, Part. 1, §1(8) of the

Constitution, and as a result, the City must use the formula set forth in A.R.S. § 19-143(A) to calculate the

number of valid signatures instead of the formula provided by the City Code and Charter. The two formulas are

different. The City formula is 15 percent of the votes cast for mayor at the last mayoral election. The Section

19-143 (A) formula is 15 percent of the votes cast in the election, for the last election where a mayor or

councilman was chosen.The last City election for mayor was in 2015. 61,603 votes were cast for mayor. Fifteen percent of that

number is 9,241.The last City election for a councilman was in 2017. 85,468 total votes were cast in that election.

Fifteen percent of that number is 12,821.Whether 12,821 or 9,241 is the minimum number of valid signatures is material here because the City

Clerk determined that 12,200 valid signatures had been submitted. If the City formula is used, enough valid


Date: August 16, 2019______


Case No.: C20193542

signatures were submitted. (12,200 valid signatures > 9,241 minimum) If the Section 19-143 (A) formula is

used, not enough valid signatures were submitted. (12,200 valid signatures > 12,821 minimum)

A “general law” is one that “applfies] uniformly to all cases and to all members within the

circumstances provided for by the law.” Republic Inv. Fund I v. Town o f Surprise, 166 Ariz. 143, 150, 800 P.2d

1251, 1258 (1990). Section 19-143(A) is a general law because it applies to all cities and towns. Thus, Section

19-143(A) applies here.2 The question is not whether Section 19-143(A) applies, but rather, what it requires.

Plaintiffs argue Section 19-143(A) requires the City to use the formula provided by that statute. But that

is not what the statute says, when read as a whole, which the Court must do when interpreting it. See generally

Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991) (“[T]he court must read the statute as a

whole, and give meaningful operation to all of its provisions.”); see also Premier Physicians Group, PLLC v.

Navarro, 240 Ariz. 193, 196,1 16, 377 P.3d 988, 991 (2016) (“In construing statutes, a ‘cardinal principle’ of

interpretation is to give effect to every clause and word.”); Scalia, Antonin and Gamer, Bryan, Reading Law: The Interpretation o f Legal Texts, Fundamental Principle 24 (Thompson/West 2012) (“The text must be

construed as a whole.”).Section 19-143 (A) starts with a general rule—that the basis for determining the number of qualified

electors in a city is “[t]he whole number of votes cast at the city or town election at which a mayor or

councilman was chosen last preceding”—but then creates a second rule—"unless the city or town by charter or

ordinance provides an alternative basis for computing the number of necessary signatures.”

The second mle starts with the word “unless.” “Unless” is defined as: “in any case other than that,

except that, except if.” Webster’s New World Dictionary (3rd College Ed.). “Unless” is a superordinating word

that shows what follows prevails over what came before it. Scalia, Antonin and Gamer, Bryan, Reading Law:

The Interpretation o f Legal Texts, Fundamental Principle 13 (Thompson/West 2012) (the provision to which the

superordinating word accords priority prevails).Under Section 19-143 (A), the first part of the statute, which is the general rule, only applies if the

second part, which is an exception to the first part, does not apply.So, under the statute, if “the city or town by charter or ordinance provides an alternative basis for

computing the number of necessary signatures” that provision applies instead of the general mle that the

2 The case of City o f Flagstaff v. Mangum, 164 Ariz. 395, 401, 793 P.2d 548, 554 (1990) addresses the interplay between general laws and city ordinances with respect to city initiatives. However, that case was decided before the current version of A.R.S. §19-143(A) was enacted so it does not address the issue raised here.


Date: August 16, 2019______


qualified electors are determined by “[t]he whole number of votes cast at the city or town election at which a

mayor or councilman was chosen last preceding.” See generally Jones v. Paniagua, 221 Ariz. 441, 446,1 16,

212 P.3d 133, 138 (App. 2009) (“§ 19-143(A) expressly provides localities a choice” between the state law

formula and their own formula).It is undisputed that the City provides, by code and charter, an alternative basis for computing the

number of necessary signatures required to sign an initiative petition. That basis is “fifteen (15) percent of the

qualified electors of the city, computed on the vote for the candidates for mayor at the last preceding general

municipal election at which a mayor was elected.” Under Section 19-143(A), the City provision controls.

Because the City followed its code and charter provision in calculating the number of qualified electors, it did

not commit an error for which this Court can grant relief.

2. Are The City Code and Charter Provisions on Initiatives as Nearly as Practicable the Same as the State Provisions?

Plaintiffs also argue that the City Code and Charter violate A.R.S. § 19-141(D), which provides, in relevant part: “The procedure with respect to municipal and county legislation shall be as nearly as practicable

the same as the procedure relating to initiative and referendum provided for the state at large.” The State

initiative procedure calculates qualified electors by using “[t]he whole number of votes cast for all candidates

for governor at the general election last preceding the filing of any initiative or referendum petition.” Ariz.

Const. Art. 4, Pt 1, § 1(7). Using the number of votes cast for mayor at the last mayoral elections is as nearly as

practicable to using the number of votes cast for governor from the last gubernatorial election. In both

instances, the government is using the number of votes cast for the executive, who always runs for office for the

entire geographic area of the governmental unit. For both, the number of votes for the executive may be less

than the number votes cast during that election. The City Code and Charter do not violate A.R.S. § 19-141 (D).

3. Must Circulators Include Their City, State, and Zip Code as Part of Their “Residence

Address” on the Circulator Affidavits?

Section 19-112(D) of the A.R.S. sets forth the form of affidavit the circulator must sign. This affidavit

is on the back side of each initiative signature page. The form of affidavit requires the circulator to provide

his/her: “resident address, street and number of affiant, or if no street address, a description of residence

location.” The statute also provides: “The form of the affidavit cannot be modified.” A.R.S. § 19-112(F). So

too, the statute provides: “Any petition that contains a partially completed affidavit or an affidavit that has been

modified is invalid.” Id.


Date: August 16, 2019______


Case No.: C20193542

Plaintiffs argue that the circulator affidavit form requires the circulator to identify not only his/her street

and number or a description of his/her residence location as his/her residence address, but also his/her city,

state, and zip code. Plaintiffs then argue that because the vast majority of circulator affidavits in this case do

not include the circulator’s city, state, and zip code, the affidavits are only partially completed so all of the

signatures on those petitions must be discarded under Section 19-112(F).

Section 19-112(D) applies to city initiatives because A.R.S. § 19-102(A) states that the statutory

requirements as to the initiative petition form apply to city initiatives.3

The question before the Court, then, is whether the requirement that the circulator provide his/her

“resident address, street and number of affiant, or if no street address, a description of residence location”

requires the circulator to provide his/her city, state, and zip code in addition to his/her street and number, or if

no street address, a description of residence location. Stated another way, the issue is whether a circulator

affidavit that does not include the circulator’s city, state, and zip code is only partially completed, making it

invalid.If the Court accepted Plaintiffs’ argument that, standing alone, the term “resident address” means street,

number, and city, state, and zip code, it would render the next words of the form, “street and number of affiant

or if no street address, a description of residence location” to be superfluous. Courts are to interpret statutes in a way that no part of the statute is superfluous. City o f Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544,

552,1 31, 105 P.3d 1163, 1171 (2005); Scalia, Antonin and Gamer, Bryan, Reading Law: The Interpretation of

Legal Texts, Fundamental Principle 26 (Thompson/West 2012) (“If possible, every word and every provision is

to be given effect {verba cum effectu sunt accipienda). None should be ignored. None should needlessly be

given an interpretation that causes it to duplicate another provision or to have no consequence.”).Reading the statute as a whole, and giving meaning to each word used in the statute, the inclusion of

“street and number of affiant, or if no street address, a description of residence location” defines and limits

Plaintiffs also argue that another statutory provision (A.R.S. § 19-102.01(A)), which addresses the strict constmction of statutory requirements for initiative measures and the strict compliance with those requirements, applies as well. The Court need not address this argument because the Court need not strictly nor liberally construe the provisions or their compliance in order to decide this issue. The Court would note, however, that Section 19-102.01(A) is limited to “statewide initiative measures.” The Supreme Court recently ruled that when an initiative statute limits its reach to statewide initiative measures, the statute does not apply to localinitiative measures. Arizona Chap, o f the Assoc. Gen. Contr. o f Am. v. City o f Phoenix,__ Ariz.___ ,2019WL 3312165,116-14 (Ariz. July 24, 2019).


Date: August 16, 2019______


Case No.: C20193542

“resident address.” In other words, “resident address” means “street and number of affiant, or if no street

address, a description of residence location.”Plaintiff responds that the terms “street and number of affiant or if no street address, a description of

residence location” is not a needless appendage to “resident address” because it is intended to exclude the use of

a post office box. In other words, the circulator must provide his/her resident address, but that cannot be a post

office box. Plaintiff cites Attorney General Opinion 109-011 (2009 WL 4883052) for the proposition that

signatures on an initiative petition that only include a post office box are invalid as A.R.S. § 19-121.02(A)(1)

requires a residence address or description of residence location for a signature to be valid.

However, unlike the petition form for signatures of qualified electors, which includes one box for the

actual address and a separate box for Arizona post office address and zip code, see A.R.S. §§19-101 (A) and 19-

102(A), the form for circulator affidavits does not include a box for Arizona post office address and zip code.

As a result, a circulator would not write in a post office address in the space that asks for “street and number of

affiant or if no street address, a description of residence location.”Plaintiffs also argue that it is important to know the state of residence of each circulator because out-of-

state circulators must register with the City Clerk. Plaintiffs arrive at that conclusion by citing A.R.S. § 19-

118(A)4, which provides: “All circulators who are not residents of this state and, for statewide ballot measures

only, all paid circulators must register as circulators with the secretary of state before circulating petitions

pursuant to this title.” If an out-of-state circulator fails to register with the Secretary of State as Section 19-

118(A) requires, “the secretary of state shall disqualify all signatures collected by the circulator.” A.R.S. § 19-

118(A). Plaintiffs then argue that under A.R.S. § 19-141 (A), the City Clerk performs the functions of the

Secretary of State for city initiatives.Because out-of-state circulators must register, it is important to know whether the circulator resides out-

of-state. However, the Court will not read a requirement into the statute that a circulator must include his city,

state, and zip code if it is not required by the plain text of the statute, even if it would have been a good idea or

helpful for the statute to include that extra requirement.Plaintiffs have not shown Section 19-112(D) requires the circulator affidavit to include the city, state,

and zip code of the circulator’s residence. As stated above, when reading the statute as a whole, the inclusion of

4 This statute was amended in 2019 by 2019 Ariz. Legis. Serv. Ch. 315 (S.B. 1451). The amendment does not apply here because the effective date for the amendment occurs after the initiative application was filed with the City on December 4, 2108. Changes to the law that occur after the application is filed do not apply to that initiative. See A.R.S. § 19-117.


Date: August 16, 2019______


Case No.: C20193542

“street and number of affiant, or if no street address, a description of residence location” defines and limits

“resident address.” The circulator affidavit is properly filled out if the circulator includes his/her street and

number, or if he/she does not have one, a description of his/her residence location. The statute does not require

the circulator to include his/her city, state, or zip code and the Court will not read that requirement into the

statute. Town o f Scottsdale v. State ex rel. Pickerel, 98 Ariz. 382, 386, 405 P.2d 871, 873 (1965) (“It is a basic

principle that courts will not read into a statute something which is not within the manifest intention of the

legislature as indicated by the statute itself.”); Scalia, Antonin and Gamer, Bryan, Reading Law: The

Interpretation o f Legal Texts, Fundamental Principle 8 (Thompson/West 2012) (“Nothing is to be added to what

the text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is

to be treated as not covered.”).As a result, the Court will not strike those petitions where the circulator did not include a city, state, and

zip code with his/her resident address.4. Does the Correction of an Error by the Circulator in Filling out the Affidavit Require it to be

Discarded as a Modification to the Form?

Plaintiffs argue that 15 of the circulator affidavits must be discarded under Section 19-112(F) because the circulator corrected errors when they initially placed their printed name on the signature line, or placed their

address on the signature line, or initially placed the circulator’s address on the printed name line, and then

crossed out the error and put the information on the correct line of the affidavit. (According to Plaintiffs, the 15

circulator affidavits where circulator corrected errors include 222 signature lines.)

Section 19-112(F) provides: “The form of the affidavit cannot be modified.” If it has been modified,

Section 19-112(F) renders it invalid.In this case, the form of the affidavit has not been modified. Rather, the circulator made a mistake in

filling it out that he/she later corrected. No provision of the Arizona Revised Statutes prevents the circulator

from correcting an error made while initially filling out the form.

The Court will not strike the petitions where the circulator made an error in initially filling out the form

that was then corrected.


Date: August 16, 2019______


5. Must Under-Votes, Over-Votes, And Write-In Votes for Unregistered Candidates be Counted

As Votes?

Pursuant to the City Code and Charter, the number of signatures needed to get the initiative on the ballot

is 15 percent of the votes for the candidates for mayor at the last preceding general municipal election at which

a mayor was elected. Plaintiffs argue that the “vote for the candidates for mayor” should, but did not, include

22 over-votes, which are votes for two opposing candidates for the same office, 16,358 under-votes, which are

blank ballots for a particular race, in this case the mayor’s race, and 4,327 write-in votes, which are votes for

write-in candidates who did properly file as such.

The City did not include these over-votes, under-votes, and write-in votes for candidates who did not

properly file. The City argues that it properly followed Arizona law in not doing so.

Over-votes are not counted. Hunt v. Campbell, 19 Ariz. 254, 287, 169 P. 596, 609 (1917) (voting for two candidates for one office disqualifies that vote for either candidate).

Under-votes are not counted because only votes are counted. Sharp v. George, 5 Ariz. 65, 68, 46 P. 212,

212 (1896); Kannarr v. Hardy, 118 Ariz. 224, 225-26, 575 P.2d 1250, 1251-52 (1978) (“total votes cast” is not

the same as “the number of ballots cast”). In essence, Plaintiff is arguing that if a voter turned in a ballot and

voted for another office during the 2015 Tucson general election, but did not vote for mayor, that vote should

count towards a vote for the mayoral race. Not so. Under the plain language of the Tucson Code and Charter,

the number of votes computed is based “on the vote for the candidates for mayor.” In other words, only the

votes cast for mayor count. Voters who voted for another office but did not vote for mayor do not count.

As for and write-in votes for candidates who did not properly file, those votes do not count pursuant to

A.R.S. 16-312(C). Those votes are not for a candidate.In summary, the City properly did not include over-votes, under-votes, or write-in votes for candidates

who did not properly file.6. Did the City Clerk Undertake A Verification of Signatures as A.R.S. § 19-121.01 and/or

Tucson Code § 12-121 Require?

Section 19-121.01 requires the Secretary of State to perform certain tasks within 20 workdays after an

initiative petition is filed. This includes removing sheets that are not in proper order, and then reviewing each

signature and removing those signatures that do not follow the statutory requirements.

Plaintiffs allege the City Clerk did not perform the tasks Section 19-121.01 requires after the Initiative

Petition was filed in this case. Plaintiffs rely on Section 19-141(A) for the proposition that Section 19-121.01


Date: August 16, 2019______


Case No.: C20193542

applies here. Section 19-141(A) says the initiative, referendum, and recall provisions of Title 19 apply to city

initiatives. The City responds that Section 19-141(D) says that “the procedure for verifying signatures on

initiative or referendum petitions may be established by a city or town by charter or ordinance.” The City has

the better argument. The City Code provision on what tasks the City Clerk must perform applies.

Tucson City Code § 12-121 includes a long list of tasks the City Clerk must perform to review an

initiative petition once it is filed. This Tucson Code provision does not appear to differ materially from Section

19-121.01.

Plaintiffs argue the City Clerk failed to remove the signatures of those who did not reside in the City of

Tucson or who were not registered to vote or not registered to vote at the address listed. But Tucson City Code

§ 12-121 does not require that. Rather, that analysis is performed by the county recorder after the City Clerk

sends a five percent random sample to the County Recorder.The City Clerk filed an affidavit with the Court explaining that he did an initial, page by page, signature

by signature examination of the Petition pursuant to Tucson City Code § 12-121. This took him three days to

complete. He examined 1,322 signature sheets and rejected 15 of them. He also rejected 152 signatures.

Plaintiffs did not observe the examination and have not filed anything to create a question of fact as to whether

the City Clerk conducted this review.Plaintiffs correctly point out that the City Clerk failed to remove the petitions gathered by an

unregistered out-of-state circulator as Tucson City Code § 12-121(b)(12) requires. The City does not dispute that at least one circulator was from out-of-state and did not register with the Secretary of State.

As a general rule, since there is no statutory provision that empowers the Court to review the City

Clerk’s initial examination of the Petition, the Court reviews the actions of the City Clerk under the arbitrary

and capricious standard. Ariz. Const., Art. Six, § 18; A.R.S. § 12-2001; A.R.S. § 12-2021; Collins v. Krucker,

56 Ariz. 6, 13, 104 P.2d 176, 179 (1940); and Brown v. City o f Phoenix, 11 Ariz. 368, 372, 272 P.2d 358, 361

(1954).There is nothing in the record to show the City Clerk did not follow Tucson City Code § 12-121 in his

review, much less than his review was arbitrarily and capriciously undertaken. Isolated mistakes do not render

the Clerk’s review arbitrary and capricious.


Date: August 16, 2019


7. Given the Court’s Rulings, Is There Any Reason Why Final Judgment Cannot be Entered in

Favor of the City?

The City Clerk determined that 17,402 signatures were eligible for further review by the County

Recorder. Plaintiffs allege that of those, 7,707 are invalid. Assuming for the moment that Plaintiffs’ number is

correct, subtracting those 7,707 invalid signatures from the 17,402 eligible for further review leaves 9,695 valid

signatures. The minimum number of valid signatures needed is 15 percent of 61,603, which is 9,241. Because

Plaintiffs’ calculation of valid signatures (9,695) exceeds the minimum number of signatures required to get the

initiative on the ballot (9,241) there is no need for an evidentiary hearing to determine the number of valid

signatures.

8. Orders

The Court has determined that Plaintiffs’ complaint fails as a matter of law. No evidentiary hearing is

required. The parties have filed several other motions. Those motions are moot given the Court’s ruling, so the

Court will not address them.The City of Tucson is entitled to judgment in its favor. Under Rule 6 of the Arizona Special Actions

Rules of Procedure, the judgment in a special action heard by the Superior Court “shall be in the form of a

judgment for any civil action.” The Court will enter final judgment under Rule 54(c), Arizona Rules of Civil

Procedure, in favor of the City and against Plaintiffs because no further matters remain pending. The Court will

sign this ruling as the final judgment.

Based on the foregoing,

IT IS ORDERED that fmal judgment is entered against Plaintiffs and in favor of the City of Tucson on

Plaintiffs’ Amended Verified Complaint, that Plaintiffs take nothing thereby, and that they are not entitled to

relief by special action, injunction, or writ of mandamus or certiorari or other constitutional or common law

writ.IT IS FURTHER ORDERED that this fmal judgment is entered under Rule 54(c), Arizona Rules of

Civil Procedure, because no further matters remain pending.

IT IS FURTHER ORDERED that Court will sign this ruling as the fmal judgment in lieu of a more

formal order.

/ / z W l IslD. DOUGLAS METCALF

(ID: 9c531 e6a-565b4a01 -b7b5-2700d60e8798)


Date: August 16, 2019


Case No.: C20193542

cc: Daniel S Jurkowitz, Esq.Dennis P. McLaughlin, Esq.Jennifer Stash, Esq.John G Anderson, Esq.Paul J Gattone, Esq.Zachary L Cohen, Esq.Clerk of Court - Under Advisement Clerk


2019 2:58:36 pm arizona superior court, pima county...

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