Arizona Chapter of the Associated General Contractors of America v. City of Phoenix

          Appeal from the Superior Court in Maricopa County The Honorable Sherry K. Stephens, Judge No. CV2019-000604

         Memorandum Decision of the Court of Appeals, Division One 1 CA-CV19-0257 EL Filed June 6, 2019

          Roy Herrera, Mark S. Kokanovich, Daniel A. Arellano, Ballard Spahr LLP, Phoenix, Attorneys for Arizona Chapter of the Associated General Contractors of America, et al.

          Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Building a Better Phoenix

          JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, JUSTICE BOLICK, and JUSTICE GOULD joined.

          OPINION

          TIMMER JUSTICE.

         ¶1 At issue here is whether the "Building a Better Phoenix Act" initiative measure qualifies for placement on the City of Phoenix's August 2019 special election ballot. We must decide whether petition signatures are void pursuant to A.R.S. § 19-118.01(A) because the measure's proponent paid petition circulators by the signature and whether the measure's 100-word description fails to comply with A.R.S. § 19-102(A). We previously issued an order affirming the lower courts' decisions that the initiative measure qualifies for the ballot. We now explain our reasoning.

         BACKGROUND

         ¶2 Light rail in Phoenix is funded from many sources, including rider fares, advertising proceeds, and regional and federal funds.^[1] Before 2015, Phoenix imposed a transaction privilege and use tax to further fund the city's transportation network, which included light rail. In 2015, voters passed Proposition 104, which set that tax at 0.7% until 2051 and created a Citizens Transportation Committee to review all tax revenue expenditures. See Phx. City Clerk, August 25, 2015 Sample Ballot: Mayor and Council Election (2015), https://www.phoenix.gov/cityclerksite/Documents/d2sb .pdf. Proposition 104 authorized use of the tax revenues, among other things, to "[e]xpand[] light rail... to serve more Phoenix neighborhoods and employment, education and entertainment centers" as depicted on an included map. Id. Proposition 104 did not authorize use of these funds for light rail maintenance and repair. See id.

         ¶3 Building a Better Phoenix ("BBP"), a political action committee, sought to amend the Phoenix City Charter to discontinue "light rail extensions" and redirect local sales tax funding for light rail extensions to "infrastructure improvements." To do so, BBP filed an application in September 2018 with the City Clerk of the City of Phoenix, see A.R.S. § 19-143(B), seeking placement of the "Building a Better Phoenix Act" initiative measure (the "Initiative") on the August 2019 special election ballot. Upon receipt of the application, the City Clerk's office assigned the Initiative petition a serial number, see A.R.S. § 19-lll(B), which enabled BBP to gather the number of valid signatures required to qualify the Initiative for the ballot. To that end, BBP hired a commercial petition circulation firm, which paid circulators on a per-signature basis.

         ¶4 Arizona Chapter of the Associated General Contractors of America and David Martin (collectively, "Contractors") filed a complaint pursuant to A.R.S. § 19-122(C) seeking to enjoin placement of the Initiative on the ballot. They allege that petition circulators were paid by the signature in violation of § 19-118.01 and that the 100-word summary circulated with the petition created a significant danger of confusion or unfairness in violation of § 19-102(A). The superior court denied relief, and the court of appeals affirmed. Ariz. Chapter of the Associated Gen. Contractors of Am. v. City of Phoenix, No. 1 CA-CV 19-0257 EL, 2019 WL 2399703, at *1 ¶ 3, *6 ¶ 25 (Ariz. App. June 6, 2019) (mem. decision).

         ¶5 On expedited review, we affirmed the superior court's judgment in an order filed June 12, 2019 (again, with an opinion to follow). We have jurisdiction over this matter under article 6, section 5 of the Arizona Constitution.

         DISCUSSION

         I. Payment ...