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Parker v. City of Tucson

Court of Appeals of Arizona, Second Division

November 19, 2013

YOLANDA PARKER; JOHN SPRINGER JR.; AND CHRIS ANDERSON, QUALIFIED ELECTORS, Plaintiffs/Appellants/Cross-Appellees, vv
v.
CITY OF TUCSON; ROGER W. RANDOLPH, IN HIS CAPACITY AS CITY CLERK FOR THE CITY OF TUCSON; F. ANN RODRIGUEZ, IN HER OFFICIAL CAPACITY AS PIMA COUNTY RECORDER; JONATHAN ROTHSCHILD, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF TUCSON; TUCSON CITY COUNCIL, A GOVERNING BODY; REGINA ROMERO, IN HER OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; PAUL CUNNINGHAM, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; KARIN UHLICH, IN HER OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; SHIRLEY SCOTT, IN HER OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; RICHARD FIMBRES, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; STEVE KOZACHIK, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE TUCSON CITY COUNCIL; PIMA COUNTY BOARD OF SUPERVISORS, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA; ALLY MILLER, IN HER OFFICIAL CAPACITY AS MEMBER OF THE PIMA COUNTY BOARD OF SUPERVISORS; RAMON VALADEZ, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE PIMA COUNTY BOARD OF SUPERVISORS; SHARON BRONSON, IN HER OFFICIAL CAPACITY AS MEMBER OF THE PIMA COUNTY BOARD OF SUPERVISORS; RAY CARROLL, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE PIMA COUNTY BOARD OF SUPERVISORS; RICHARD ELIAS, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE PIMA COUNTY BOARD OF SUPERVISORS, Defendants/Appellees. COMMITTEE FOR SUSTAINABLE RETIREMENT IN SUPPORT OF INITIATIVE PETITION 2013-I004 AND IN SUPPORT OF THE BALLOT MEASURE, Real Party in Interest/Appellee/Cross-Appellant.

Appeal from the Superior Court in Pima County No. C20134029 The Honorable James E. Marner, Judge

Coppersmith Schermer & Brockelman PLC, Phoenix By Andrew S. Gordon, Roopali H. Desai, John C. Kelly, and Melissa A. Soliz Counsel for Plaintiffs/Appellants/Cross-Appellees.

Gammage & Burnham P.L.L.C., Phoenix By Lisa T. Hauser and Christopher L. Hering Counsel for Real Party in Interest/Appellee/Cross-Appellant.

Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Howard and Judge Kelly concurred.

OPINION

VÁSQUEZ, Presiding Judge

¶1 In this expedited election appeal, Yolanda Parker, John Springer Jr., and Chris Anderson (jointly, the Employees)[1] challenge the trial court's September 3, 2013 order denying their request for injunctive and mandamus relief, entering judgment in favor of the Committee for Sustainable Retirement in Support of Initiative Petition 2013-I004 and in Support of the Ballot Measure (the Committee) and numerous government defendants, [2] and permitting the City of Tucson Initiative Petition 2013-I004 (the Initiative) to be placed on the November 5, 2013 ballot. Although the trial court invalidated some of the signatures obtained in support of the Initiative, it nevertheless found there were a sufficient number of valid signatures. In its cross-appeal, the Committee argues the court erred by disqualifying certain petition sheets and invalidating the corresponding signatures, permitting the Employees to amend their pleadings during trial, and denying the Committee's motion to dismiss the complaint as untimely.

¶2 By order dated September 12, 2013, this court reversed the judgment and remanded the case to the trial court with directions to enter an injunction pursuant to A.R.S. § 19-122(C) to prevent the Tucson City Clerk from "certifying or printing" the Initiative on the ballot, with a written opinion to follow.[3] This is that opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 The Committee is an unincorporated association and political committee organized for the purpose of promoting and sponsoring the Initiative, which sought to amend the Tucson City Charter to eliminate the City's non-public safety employee pension system. See A.R.S. § 16-902.01 (providing requirements for registration of political committees). The Committee filed a statement of organization with the City, took out initiative petitions, and collected signatures that were submitted to the Tucson City Clerk and transmitted to the Pima County Recorder for verification, in order to place the Initiative on the City's November 5, 2013 ballot.[4]

¶4 The Committee hired political consulting firm Zimmerman Public Affairs, owned by Carol and Peter Zimmerman, to direct and monitor the campaign to qualify the Initiative for the ballot, hire petition circulators, and obtain petition signatures. On July 2, 2013, the Committee submitted to the City Clerk 1, 857 petition signature sheets containing 23, 364 signatures; 12, 730 valid signatures were required to place the Initiative on the ballot. The deadline for printing ballots for the November 2013 election was September 16, 2013. The City Clerk issued an "Interim Facially Sufficient Petition Receipt" to the Committee, stating 22, 693 signatures were "eligible for verification" under A.R.S. § 19-121.01(A), and transmitted the signatures to the Pima County Recorder for the requisite five-percent random sample. See § 19-121.01(B), (C). On July 16, 2013, the Pima County Recorder issued a certification stating it had received 1, 135 signatures for verification and "was able to verify 893 signatures versus 242 that were invalidated." That same day, the City Clerk issued a certificate stating the Initiative had sufficient signatures to qualify for the ballot.

¶5 On July 22, 2013, the Employees filed a complaint pursuant to § 19-122(C), an expedited challenge to the sufficiency of the Initiative, requesting an immediate trial and seeking injunctive and mandamus relief. They alleged certain petition sheets and individual signatures were invalid because nine of the circulators were ineligible to circulate petitions. They maintained that six of the circulators had prior felony convictions and were ineligible to register to vote and three were not registered as out-of-state petition circulators. The Employees also asserted some of the petitions were defective because they had been accompanied by incomplete circulator affidavits and that various individual signatures were invalid because they were incomplete or otherwise defective.

¶6 The trial court held an expedited evidentiary hearing pursuant to § 19-122(C) on August 2 and 6. In its August 16 ruling, the court entered preliminary findings of fact and conclusions of law. The court found that petitions circulated and signatures obtained by two of the circulators were defective because the circulators were convicted felons. It therefore concluded the 1, 196 signatures those circulators had obtained were invalid. The court also found that 4, 456 signatures were invalid because the signatures themselves were defective, either because they had been obtained by out-of-state circulators or because the accompanying circulator affidavit was false. The court ordered the City Clerk to remove the disqualified signatures, prepare a new random sample, and recalculate the projected number of valid signatures; it temporarily enjoined the City Clerk from placing the Initiative on the ballot.

¶7 Based on the new random sample and its having found 157 of the 853 signatures invalid, the Pima County Recorder calculated a new error rate of 18.4 percent. On September 3, the City Clerk issued a new certification after concluding the Initiative qualified for the ballot by 1, 047 signatures. That same day, the trial court entered a final order that incorporated its August 16 order and took into account the City Clerk's new tabulations and certification. The court invalidated 5, 652 signatures: 4, 857 signatures that had been collected by ineligible circulators, 794 signatures from defective petition sheets, and one signature that was defective on another specified sheet. Based on this determination and the error rate provided by the Pima County Recorder, the court found there were sufficient signatures to place the Initiative on the November 5, 2013 election ballot. This expedited appeal by the Employees and the Committee's cross-appeal followed. See Ariz. R. Civ. App. P. 8.1; § 19-122(C).

DISCUSSION

A. The Employees' Appeal

1. Eligibility of Convicted Felons to Circulate Petitions

¶8 The Employees alleged in their complaint that Thomas Coombes, Daryl Oberg, Josephine Leonardi, James Greer, Mark Klepacki, and Gary Robinson were convicted felons who were not qualified to serve as petition circulators based on the requirements of A.R.S. § 19-112(D) because they were ineligible to register to vote according to the criteria established by the Arizona legislature. Specifically, they alleged the civil rights of these individuals had been suspended as a result of their convictions and had not been restored. The Committee stipulated Klepacki had been convicted of felonies in Florida and that his civil rights had not been restored. The court found there was clear and convincing evidence Greer also was not qualified to circulate petitions as a consequence of his felony convictions. Thus, the court found the signatures Greer and Klepacki had obtained were invalid.

¶9 The trial court found there was no evidence establishing Coombes, Oberg, or Leonardi had applied for a restoration of the civil rights suspended because of their felony convictions. Nevertheless, it determined all three were eligible to vote in the states where they had been convicted of felonies - California, Ohio, and Illinois - and, consequently, they were eligible to serve as circulators in Arizona.

¶10 The Employees argue on appeal that eligibility to vote in another state is insufficient and that the three individuals were not qualified to serve as circulators in Arizona because their civil rights had not been fully restored. The Employees maintain that, had the trial court correctly invalidated the signatures collected by these individuals, the court necessarily would have found the Committee had failed to submit the requisite 12, 730 signatures to place the Initiative on the November 2013 ballot. The Employees also assert that, in addition to "confusi[ng] . . . the restoration of civil rights and the restoration of voting rights, " the court erred by (1) "fail[ing] to shift the burden of production to [the Committee] to prove restoration of civil rights once [the Employees] demonstrated that Coombes, Oberg, and Leonardi were convicted felons, " and, (2) requiring the Employees to meet that burden with clear and convincing evidence rather than a preponderance of the evidence.

¶11 We review a trial court's decision on a request for injunctive or mandamus relief under § 19-122 for an abuse of discretion. Harris v. City of Bisbee, 219 Ariz. 36, 13, 192 P.3d 162, 165 (App. 2008). An abuse of discretion includes an error of law. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 58, 181 P.3d 219, 236 (App. 2008). We review de novo the legal question of whether the court applied the proper burden of proof. Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz. 307, 8, 93 P.3d 507, 509 (2004). And when, as here, an issue involves the interpretation of a statute, it is a question of law we review de novo. Harris, 219 Ariz. 36, 13, 192 P.3d at 165-66; see also Open Primary Elections Now v. Bayless, 193 Ariz. 43, ¶ 9, 969 P.2d 649, 652 (1998); State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, ¶ 5, 3 P.3d 1040, 1042 (App. 1999).

¶12 Our primary purpose in interpreting a statute is to give effect to the legislature's intent. See Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, ¶ 9, 282 P.3d 1275, 1278 (App. 2012). Because the plain language of a statute is the best reflection of that intent, when a statute is clear and unambiguous we need look no further than the statute's terms to determine its meaning and do not employ other principles of statutory construction. Id.; see also In re Wilputte S., 209 Ariz. 318, ¶ 10, 100 P.3d 929, 931 (App. 2004). And, "we assume that when the legislature uses different language within a statutory scheme, it does so with the intent of ascribing different meanings and consequences to that language." Comm. for Pres. of Established Neighborhoods v. Riffel, 213 Ariz. 247, 8, 141 P.3d 422, 424-25 (App. 2006).

¶13 The same principles of construction apply when interpreting provisions of Arizona's constitution. Thus, our goal is "to effectuate the intent of those who framed the provision." Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). If the language of a provision of the constitution is "unambiguous, we generally must follow the text as written." Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App. 2011). When the words are plain and clear, "'judicial construction is neither necessary nor proper, ' and we will not consider any extrinsic matter supporting a construction that would vary the provision's apparent meaning." Id., quoting Jett, 180 Ariz. at 119, 882 P.2d at 430.

¶14 In addition to these basic principles of construction and review, we are equally mindful of special principles regarding the interpretation and application of the portions of the Arizona Constitution and statutes pertaining to initiatives and the initiative process. See Ariz. Const. art. IV, pt. 1, § 1(1), (2). "Arizona has a strong policy [of] supporting the people's exercise of" the power granted to them by the constitution "to propose laws through initiative process." Pedersen v. Bennett, 230 Ariz. 556, ¶ 7, 288 P.3d 760, 762 (2012). Thus, "courts liberally construe initiative requirements and do not interfere with the people's right to initiate laws 'unless the Constitution expressly and explicitly makes any departure [from initiative filing requirements] fatal.'" Id., quoting Kromko v. Superior Court, 168 Ariz. 51, 58, 811 P.2d 12, 19 (1991) (alteration in Pedersen).

¶15 Because of these underlying policies, "once initiative petitions are circulated, signed and filed, they are presumed valid." Harris v. Purcell, 193 Ariz. 409, ¶ 15, 973 P.2d 1166, 1169 (1998). Thus, although § 19-122(C) expressly authorizes a citizen to bring an action challenging the legal sufficiency of an initiative petition and/or signatures, in interpreting the requirements imposed by the constitution or a statute, "courts must exercise restraint before imposing unreasonable restrictions on the people's legislative authority." Kromko, 168 Ariz. at 57, 811 P.2d at 18. "The term 'legal sufficiency, ' as used in § 19-122(C), requires substantial, not necessarily technical, compliance with the requirements of the law." Id. at 58, 811 P.2d at 19 (citations omitted); see also Feldmeier v. Watson, 211 Ariz. 444, ¶ 14, 123 P.3d 180, 183 (2005) (test for initiatives, unlike referenda, is whether petition substantially complies with requirements of constitution and statute). "Courts may remove a measure from the ballot only 'when it appears affirmatively the constitutional and statutory rules in regard to the manner in which initiative . . . petitions should be submitted have been so far violated that there has been no substantial compliance therewith . . . .'" Kromko, 168 Ariz. at 58, 811 P.2d at 19, quoting Iman v. Bolin, 98 Ariz. 358, 366, 404 P.2d 705, 710 (1965) (alterations in Kromko). With all of these principles in mind, we now turn to the statutes and provisions of the constitution implicated here.

¶16 Section 19-114, A.R.S., which disqualifies certain individuals from serving as petition circulators, provides in subsection (A), "no person other than a person who is qualified to register to vote pursuant to [A.R.S.] § 16-101 may circulate an initiative or referendum petition and all signatures verified by any such person shall be void and shall not be counted in determining the legal sufficiency of the petition." See also Tucson City Code §§ 12-54(b), 12-58(a)(1). Section 16-101 sets forth the criteria that qualify a person to register to vote, providing in subsection (A)(5) that a person is qualified if he or she "[h]as not been convicted of . . . a felony, unless restored to civil rights." The parallel provision in the Arizona Constitution expressly disqualifies certain persons from serving as an elector, stating, "nor shall any person convicted of . . . [a] felony, be qualified to vote at any election unless restored to civil rights." Ariz. Const. art. VII, § 2(C). "A person is presumed to be properly registered to vote [in Arizona] on completion of a registration form as prescribed by [A.R.S.] § 16-152, " but that presumption may be rebutted by clear and convincing evidence. A.R.S. § 16-121.01.

¶17 Based on the plain language of § 16-101(A)(5), and article VII, § 2(C) of the Arizona Constitution, a person is not qualified to register to vote in Arizona if the person has been convicted of a felony, unless his or her civil rights have been restored. See Rocking K Holdings, Ltd. v. Pima Cnty., 170 Ariz. 134, 136, 822 P.2d 487, 489 (App. 1991). Because there is nothing ambiguous or unclear about the statute or the constitution, we "must follow the text as written." Canon Sch. Dist No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994); see also Jett, 180 Ariz. at 119, 882 P.2d at 430 (requiring court to follow plain language of constitutional provisions unless terms ambiguous or unclear). Section 19-114(A) specifies the person must be "qualified to register to vote pursuant to § 16-101." And § 16-101(A)(5), like article VII, ...


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