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| Text of referendum rulings
Posted to PoisonedWells.com Monday, April 20, 2002
OFFICE DISTRIBUTION
DATE 4/11/2002 JUDGE HONORABLE WILLIAM J. O'NEIL
ANAM, INC., an Arizona corporation, et al.
Case No. CV200100610
PRESENT: This matter was previously tried to the Court and taken under advisement. The parties by stipulation have agreed that this Court's ruling in Robson Ranch Mountains, LLC. v. Pinal County, Pinal County Cause CV 2001-00818 is the ruling for appeal purposes regarding one issue in this case which relates to whether a single referendum was proper for two separate ordinances. As this Court stated in Robson, while it is clear two ordinances were passed, the issue is not whether those ordinances standing independently were incapable of being understood, but rather whether the Board of Supervisors by their own choice and action could make the ordinances incapable of standing separate and alone. In other words, did the Pinal County Board of Supervisors as a matter of fact intend to so intertwine the two ordinances that each become ineffective of standing on its own, incapable of succeeding without the other.. This Court found as a matter of fact that that was both the Board's intent and the Board's action. As this Court stated, nothing in the law or rule precluded or mandated the Board from taking such action. The Board chose to adopt clear and unambiguous language requiring both ordinances to either exist or to fail. As a result, the relief sought by Plaintiffs in Robson was denied and it is likewise denied in this case. The facts to that extend are identical. [Page break, to p. 2] The second issue raised by Plaintiff is whether the petitions were filed more than 30 days after the ordinances were available to the public. A variation of the same issue was raised in the Robson case referred to above. However, in the case sub judice, Gilbert Hoyos, the county officer in charge of elections, directly testified that the ordinances in question were not available to him at the time the application was initially submitted. Unlike in Robson where the County stands silent, in this case the County argues the referendum should proceed to the general ballot. Time limits must be strictly construed in election cases. Strict compliance with the law in the referendum context is foundational to any consideration of such issues by a court. Referendum is an extraordinary power and by its very nature requires close scrutiny. In this case there is no dispute regarding the validity of the signatures or that a sufficient number of qualified electors endorsed those petitions requesting they be referred to the ballot. As the parties have already stipulated that a basis for any appellate review of this matter is this Court’s ruling in the Robson case, the Court does by this reference incorporate its rulings in Robson into this ruling, including this Court’s findings relating to the role and function of Gilbert Hoyos in his statutory capacity as Election Director for Pinal County, which he serves as the “county officer in charge of elections.” As in the Robson case, there is no dispute regarding the overwhelming number of valid signatures that were submitted for this referendum. There is no dispute that those who signed the petitions were qualified electors. This case in part mirrors the Robson case relating to this issue. For that reason, this Court quotes extensively from its ruling in that case as the issues again are in part identical. “Title 19 governs referendums: A.R.S. §19-141 provides that “The provisions of this chapter shall apply to the legislation of cities, towns and counties, except as specifically provided to the contrary in this article. The duties required of the Secretary of State as to state legislation shall be performed in connection with such legislation by the city or town clerk, county officer in charge of elections or person performing the duties as such.”Those duties necessarily then include those that are set forth in A.R.S. §19-142. A referendum petition must be filed within 30 days after passage of the ordinance, unless that time is extended. Plaintiff’s argument is that A.R.S. §19-142 (D), which provides the 30 day period begins on the day the rezoning ordinance is available from the city or town (county) clerk, does not by definition mean the elections director. Such argument flies in the fact [sic] of the statute itself. A.R.S. §19-142 (A) with identical language provides [Page break, to p. 3] that any referendum petition shall be filed with the “city or town clerk” within 30 days after passage of the ordinance. To accept Plaintiffs’ argument would necessarily mean that as a matter of law voters should file a referendum petition with the Board of Supervisor’s Clerk. The two passages cannot be so stretched. The duties which are to be performed in connection with legislation are to be done in Pinal County by the county officer in charge of elections. A qualified voter need not as suggested, search through garbage cans, check with the County Recorder or request from an individual Supervisor if a copy of a passed ordinance is available. They may rely on the statements of the county officer in charge of elections, of the availability or lack of availability of such ordinances. To do otherwise would make a mockery of the entire purpose of strict compliance in the referendum context. Strict compliance is required because a minority may hold up the effective date of legislation which may well represent the wishes of the majority. At the same time, unelected governmental bureaucrats cannot by their own processes thwart that extraordinary power guaranteed by the Constitution by forcing qualified voters to look to the County Recorder or a member of the Board of Supervisors or (as has been suggested) some governmental trash can. Strict compliance is not a wall which cannot be crossed over. While these laws must be strictly followed, they are not and never were intended to be barriers impossible for qualified voters to vault over. This is not a complicated issue. It becomes complicated and fundamentally altered by the suggestions of Plaintiff. If the Clerk of the Board of Supervisors leaves an ordinance for signature with the Board, it is, by Plaintiffs’ definition “available” immediately upon signing. It is technically “available” to the county. If the Clerk upon receipt of that signed ordinance takes the original and walks it down the street to the County Recorder’s Office, it is “available” during that entire time, and if a member of the public should happen to meet the Clerk along the way and discover that copy is in the Clerk’s hand, it might well be “available” to that member of the public or any other who by good fortune should meet that Clerk along the way. That is not the issue in the referendum context. The issue is a simple one which is established by law. When is it ”available” in the most fundamental way to the “county officer in charge of elections?” If that officer cannot get a copy of it to duplicate and hand out, it is unavailable. This is not a matter of the elections director handing out advice. This is a statement of fact by that Director which is undisputed. Gilbert Hoyos as Director of Elections for Pinal County, could not get his hands on this ordinance. It was unavailable to him. This statutory structure to the process removes uncertainty. If the legislature did not mean for the “county officer in charge of elections” to perform these duties, they would not have named that officer. The reason for the unavailability of these combined [Page break, to p. 4] ordinances is irrelevant. It is undisputed and the Court finds as a matter of fact that these ordinances were not available to the county officer in charge of elections for Pinal County. This in turn made them unavailable to the public for referendum. In Pinal County, Gilbert Hoyos is the county officer in charge of elections and is the individual to whom qualified voters make application for referendums. In this case as a matter of fact, that official did not have available these ordinances on the day the petition was filed. As a result, the ordinances could not be operative until 30 days after that ordinance was available. This case separates from Robson in one fundamental fashion. The 30 days in this case concluded on a weekend. Plaintiff, as a result, argues that even assuming the ordinances were not available on the day the application was filed, the petitions had to be filed within 30 days and therefore on the Friday, as the 30th day landed on the weekend. In normal circumstances this Court might well rule and find such issue dispositive. However, this case sets itself apart on three key grounds. Individually any of these grounds might well be insufficient for the Court to uphold the referendum, however, collectively they demand this combined ordinance be referred to the qualified voters of Pinal County for their consideration at the next general election. First, the direct testimony of the Director of Elections is that he did not comply with A.R.S. §19-111 (C). Presumably the State Legislature required compliance with such statute to fully inform such referendum applicants of their rights and responsibilities in a form as provided by the Secretary of State. This active omission was compounded by an act of commission by the same Director. The undisputed testimony is that the Director pointing to a calendar informed the applicants, without request from them, of the date the petitions would have to be filed on. If this testimony were disputed by the Director, this Court would balance in favor of Plaintiffs but here the testimony of the Director was forceful and unequivocal. He informed them, without request from them, of the due date and inserted it upon the application and made clear, even during his testimony that he is still of the opinion that the Monday date given was the proper date. There is no argument that the petitions submitted do not contain any overwhelming number of signatures of qualified voters and that such petitions could have been submitted on the Friday or an even earlier date and been sufficient. This is not a case in equity but a case in law. Referendum is a Constitutional right but it is an “extraordinary” power. That power is extraordinary because it permits a small number of voters to stop the legislative acts of those representatives who have been elected by a majority of the voters. However in this case, the third and fourth legs that undergird the seat of argument for referendum are the very voices of themselves. Unlike in Robson and the vast majority of referendum cases argued to this Court, these “representatives” demand that this matter [Page break, to p. 5] should be referred. In short, both the “minority” and the “majority” believe the effective date of this legislation should be held up until the voters themselves can be heard. When coupled with the statement of the Arizona Legislature in Chapter 10, Section 1 of the Arizona Session Laws of 1989, which sets forth in clear language the legislature’s intent regarding the power of referendum, the County’s position is persuasive. “The right of initiative and referendum shall be broadly construed…. The effective failure to comply with these requirements shall not destroy the presumption of validity of citizens’ signatures, petitions or the initiated or referred measure….”This is not a case of ill will by the County. This is a case where the omission of the Elections Director, as well as the commission of the Elections Director, is coupled with the County’s position which argues in favor of the Arizona Legislature’s position that the referendum should occur. Due to these facts and the unique status of this case, Plaintiffs’ relief cannot be granted and IT IS HEREBY ORDERED, as a result, DENIED. [X] SIGNED this 12 day of April, 2002
Mailed/distributed copy (s) : 4/12/2002 Cc: JEFFREY WILLIS
ANNE C. GRAHAM-BERGIN
OFFICE DISTRIBUTION
DATE 4/12/2002 JUDGE HONORABLE WILLIAM J. O'NEIL
ROBSON RANCH MOUNTAIN, LLC, a Delaware limited liability company;
Plaintiffs, VS. PINAL COUNTY, a body politic;
Defendants, and
Case No. CV200100818
PRESENT: Trial in this matter having previously been conducted and the Court having taken this matter under advisement does issue its ruling denying the relief sought by Plaintiffs. On or about November 7, 2000, Pinal Citizens for Sustainable Communities submitted an application to the Pinal County Elections Department for a referendum petition serial number seeking to invalidate combined ordinances PZ-003-00 and PZ-PD-033-00. On or about January 10, 2001, the Pinal County Recorder verified to the Elections Direction [sic] that enough signatures had been filed to qualify the referendum petition for the November, 2000 ballot. Not quite nine months later on October 5, 2001, Plaintiffs filed its action requesting this Court to find the referendum petition null and void and requesting a preliminary injunction barring the matter from being placed on the next general ballot, as well as for fees. Plaintiffs, in seeking relief, set forth two distinct reasons why the request should be granted. First, that a single referendum is being used to refer two separate ordinances and, secondly, the petitions were filed more than 30 days after the ordinances in [Page break, to p. 2] question was available to the public. This Court has previously ruled regarding the first issue. While it is clear that two ordinances were passed, it has never been a issue of whether these ordinances standing independently by themselves are incapable of being understood or are somehow indefinite by definition, but rather whether the Board of Supervisors by their own choice and action could make the ordinances incapable of standing separate and alone. The clear language, as a matter of fact, is such that if two ordinances were placed on the ballot, a significant risk would be that one measure would pass and another fail potentially resulting in an ineffective ordinance. Pinal County Board of Supervisors as a matter of fact intentionally intertwined the two ordinances to such a degree that each was ineffective standing on its own. This Court finds they intended to combine them one with another. One cannot succeed without the other. Nothing in law or rule precluded or mandated the Board taking such action. The Board chose to adopt clear and unambiguous language which require both ordinances to exist or both to fail. This is not a case in equity, however, it would be fruitless, ineffective or vain to require two separate referendums when there is clearly one subject matter. The language approved by the Board requires that these ordinances be treated as one. That was their intent, and as a result, the relief sought by Plaintiffs was denied by this Court. The second issue raised by the Plaintiffs is whether the petitions were filed more than 30 days after the ordinances in question were available to the public, and as a result, are untimely. That time limits must be strictly construed in election statutes is fundamental. Similarly strict compliance with the statues in the referendum context is foundational to any consideration of these issues by a court. Referendum is an extraordinary power that while reserved to qualified electors by our Arizona Constitution has been referred to as an “extraordinary power” that permits a minority of voters to hold up the effective date of legislation. Our Supreme Court has from time to time, while recognizing the historical importance of the referendum, stated the need for strict compliance to insure that such constitutional right is not abused or improperly expanded. In the case sub judice, there is no dispute regarding the validity of the signatures or that sufficient qualified electors endorsed these petitions to refer them to the ballot. The process by which qualified voters petition for referendum is driven by both the Constitution and state law. The parties have stipulated to the facts, although Plaintiff objects to the hearsay nature of the statements made by “Karen” in the Board of Supervisor’s Office and the statements of Supervisor Ruiz. Plaintiff also objects on foundational grounds to the other statements. The foundational objections were overruled. Plaintiff cannot rest on the answer of County nor has it submitted any statements in contradiction to the sworn testimonies of the [Page break, to p. 3] Intervenors regarding those conversations. If courts were bound, as Plaintiffs suggest, to accept as true the statements contained in answers admitting (and presumably denying) statements contained in the complaint as true, there would be no need for findings of fact. However, this Court has not considered the statements attributed to Supervisor Lionel Ruiz as they are not relevant or material. The statements stipulated to be undisputed were only subject to the foundational objections made by Plaintiff. Those statements are clear and unambiguous that the Intervenors intended to file a referendum petition against these combined ordinances. At the time of making application for the official number, it is undisputed the ordinances were not available to Gilbert Hoyos, the Pinal County Director of Elections. Title 19 governs referendums. A.R.S. §19-141 provides that “The provisions of this chapter shall apply to the legislation of cities, towns and counties, except as specifically provided to the contrary in this article. The duties required of the Secretary of State as to state legislation shall be performed in connection with such legislation by the city or town clerk, county officer in charge of elections or person performing the duties as such.”Those duties necessarily then include those that are set fort in A.R.S. §19-142. A referendum petition must be filed within 30 days after passage of the ordinance, unless that time is extended. Plaintiff’s argument is that A.R.S. §19-142(D), which provides the 30 day period begins on the day the rezoning ordinance is available from the city or town (county) clerk, does not by definition mean the elections director. Such argument flies in the face of the statue itself. A.R.S. §19-142(A) with identical language provides that any referendum petition shall be filed with the “city or town clerk” within 30 days after passage of the ordinance. To accept Plaintiffs’ argument would necessarily mean that as a matter of law voters should file the referendum petition with the Board of Supervisor’s Clerk. The two passages cannot be so stretched. The duties which are to be performed in connection with legislation are to be done in Pinal County by the county officer in charge of elections. A qualified voter need not as suggested, search through garbage cans, check with the County Recorder or request from an individual Supervisor if a copy of a passed ordinance is available. They may rely on the statement of the county officer in charge of elections, of the availability or lack of availability of such ordinances. To do otherwise would make a mockery or the entire purpose of strict compliance in the referendum context. Strict compliance is required because a minority may hold up the effective date of legislation which may well represent the wishes of the majority. At the same time, unelected governmental bureaucrats cannot by their own processes thwart that “extraordinary” power guaranteed by the Constitution by forcing qualified voters to look [Page break, to p. 4] to the County Recorder or a member of the Board of Supervisors or (as has been suggested) some governmental trash can. Strict compliance is not a wall which cannot be crossed over. While these laws must be strictly followed, they are not and never were intended to be barriers impossible for qualified voters to vault over. This is not a complicated issue. It becomes complicated and fundamentally altered by the suggestions of Plaintiff. If the Clerk of the Board of Supervisors leaves an ordinance for signature with the Board, it is, by Plaintiffs’ definition “available” immediately upon signing. It is technically available to the County. If the Clerk upon receipt of that signed ordinance takes the original and walks it down the street to the County Recorder’s Office, it is “available” during that entire time, and if a member of the public should happen to meet the Clerk along the way and discover that copy is in the Clerk’s hand, it might well be “available” to that member of the public or any other who by good fortune should meet that Clerk along the way. That is not the issue in the referendum context. The issue is a simple one which is established by law. When is it “available” in the most fundamental way to the “county officer in charge of elections?” If that officer cannot get a copy of it to duplicate and hand out, it is unavailable. This is not a matter of the elections director handing out advice. This is a statement of fact by that Director which is undisputed. Gilbert Hoyos, as Director of Elections for Pinal County, could not get his hands on this ordinance. It was unavailable to him. This statutory structure to the process removes uncertainty. If the legislature did not mean for the “county officer in charge of elections” to perform these duties, they would not have named that officer. The reason for the unavailability of these combined ordinances is irrelevant. It is undisputed and the Court finds as a matter of fact that these ordinances were not available to the county officer in charge of elections of Pinal County. This in turn made them unavailable to the public for referendum. In Pinal County, Gilbert Hoyos is the county officer in charge of elections and is the individual to whom qualified voters make application for referendums. In this case as a matter of fact, that official did not have available these ordinances on the day the petition was filed. As a result, the ordinances could not be operative until 30 days after that ordinance was available. As a result, this referendum was timely filed. IT IS HEREBY ORDERED the relief sought by Plaintiffs must be and is DENIED. [Page break, to p. 5] [X] SIGNED this 12 day of April, 2002
cc. ANDREW M. FEDERHAR
ANNE C. GRAHAM-BERGIN
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