Roundtree v. Page

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DEBRA ROUNDTREE, an individual; STEVEN KIDMAN, an individual;
PAGE ACTION COMMITTEE, a registered political committee,
Plaintiffs/Appellants,

v.

CITY OF PAGE, a political subdivision of the state of Arizona; KARY
HOLLOWAY, in her official capacity as City Clerk; KIM LARSON, in her
official capacity as Acting Deputy City Clerk, Defendants/Appellees.

No. 1 CA-CV 24-0387 EL
FILED 07-02-2024

Appeal from the Superior Court in Coconino County
No. S0300CV202400227
The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Barton Mendez Soto PLLC, Tempe
By James E. Barton II, Jacqueline Mendez Soto,
Daniella Fernandez Lertzman
Counsel for Plaintiffs/Appellants

Pierce Coleman PLLC, Scottsdale
By Christina Estes-Werther, Jon M. Paladini, Matthew W. Schiumo
Counsel for Defendants/Appellees City of Page
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.

C R U Z, Judge:

¶1 Debra Roundtree, Steven Kidman, and Page Action
Committee (collectively “the Committee”) appeal the superior court’s
judgment denying their request for declaratory, injunctive, mandamus, and
other relief after the City of Page and its employees (collectively “the City”)
rejected the Committee’s initiative petition, I-2023-03 (“the Initiative”)
because its subject matter did not constitute a legislative act. For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In response to its largest employer leaving the City, the Page
City Council (“the Council”) sought to increase economic growth and
development in the City. The City’s Community Development Director,
the Council, and community members ultimately decided that a downtown
revitalization project (“the Streetscape Project”), would help the City meet
its economic development goals.

¶3 Before deciding to proceed with the Streetscape Project, the
Council worked with the American Planning Association advisory group,
visited other streetscapes in Arizona, and held public meetings. The City
worked on the Streetscape Project for approximately six years. During that
time, the City appropriated funds and hired an engineering firm to
complete a design concept for the Streetscape Project. Multiple renderings
of the Streetscape Project were presented at multiple public meetings.
Eventually, the Council determined that the continued development and
implementation of the Streetscape Project was its number one priority and
stated so in its adopted policy document entitled “Strategic City Council
Priorities.” The Council then approved a budget including an
appropriation for the Streetscape Project and began approving and entering
into contracts with engineering and construction firms.

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Decision of the Court

¶4 In October 2023, the Committee applied for a serial number
for the Initiative and began collecting signatures. The Initiative sought to
add “Chapter 74 to Title VII of the general ordinances of [the City] reelating
[sic] to maintaining the size and lanes of Lake Powell Boulevard,” and
stated, in relevant part:

The citizens of Page, Arizona do hereby find and determine
that it is in the best interest of the citizens to maintain the size
and number of traffic lanes at Laek [sic] Powell Boulevard
from Rim View Drive to Aspen Street as presently existed on
October 1, 2023. And further, that making changes that
degrade the usefulness of this portion of road is wasteful of
the public fisc and harmful to the general welfare.

...

Neither public resources of the City nor outside funds from
any source shall be used in anyway [sic] to facilitate,
encourage, support, or actualize a reduction in the number of
lanes or size of Lake Powell Boulevard between Rim View
Drive and Aspen Street from the current size and number of
lanes.

¶5 In March 2024, the Committee submitted sixty-eight petition
sheets and the City began its twenty-day statutory review pursuant to
Arizona Revised Statutes (“A.R.S.”) section 19-121.01. In April 2024, the
City rejected the Initiative because its subject matter did not constitute a
legislative act. Later that month, the Committee filed a special action
complaint in superior court seeking mandamus relief to compel the City to
perform its duties under A.R.S. §§ 19-121.01, -122, -141. The Committee
simultaneously applied for preliminary and permanent injunctions and an
order to show cause.

¶6 After an expedited show cause hearing, the superior court
denied the Committee’s requests for declaratory, injunctive, mandamus,
and other relief, except as to issues regarding signatures not relevant to this
appeal. The court found that the subject matter of the Initiative was
administrative rather than legislative because implementation of the
Streetscape Project was the responsibility of the City’s employees and
implementation of the Project “clearly includes a determination as to the
size or number of lanes on roads contained within the Streetscape Project.”
The court concluded that because the Initiative “attempts solely to control
the size and number of lanes within a portion of Lake Powell Boulevard—

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Decision of the Court

an administrative duty of City staff . . . the Initiative too must be
administrative in this context.” After determining that “no further matters
remain pending,” the court entered a final judgment.

¶7 The Committee timely appealed. Because this is an expedited
election matter, this court held an ARCAP (10)(g) scheduling conference
with the parties, accepted the parties’ request and stipulation to submit
simultaneous briefing and ordered the same.

DISCUSSION

¶8 The dispositive question on appeal is whether the Initiative’s
subject matter is legislative rather than administrative and therefore legally
sufficient for the ballot. This issue poses a question of law that we review
de novo. League of Ariz. Cities & Towns v. Brewer, 213 Ariz. 557, 559, ¶ 7
(2006).

¶9 “A fundamental component of the legislative process in
Arizona is the right of the people to offer legislation through the initiative.”
Id. at 559, ¶ 9 (citing Ariz. Const. art. 4, pt. 1, § 1; Allen v. State, 14 Ariz. 458,
467 (1913)). Under the Arizona Constitution, “[t]he powers of the
initiative and the referendum . . . are 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.” Ariz. Const. art. 4,
pt. 1, § 1(8) (emphasis added).

¶10 Generally, courts may not interfere with an initiative before it
passes unless authorized to do so by law. League of Ariz. Cities & Towns, 213
Ariz. at 559-60, ¶¶ 10-11. The judiciary is authorized to enjoin the
placement of legally insufficient initiative petitions on the ballot. Id. at 560,
¶ 11. An initiative is legally insufficient if it is (1) defective in form; (2) does
not receive the number of valid signatures required by the Arizona
Constitution, or (3) fails to follow the prescribed procedures. Id. at 560,
¶ 12. Only two kinds of procedural defects in form warrant pre-election
review—defects as to statutory structural requirements and “whether an
initiative in fact constitutes legislation.” Id. at 560, ¶ 13.

¶11 The Committee argues that initiatives, unlike referenda, are
not required to be legislative. We disagree. The superior court correctly
found that the subject matter of an initiative must be legislative. Article 4,
part 1, Section 1(8), of the Arizona Constitution, gives qualified electors
initiative power as to all “city . . . matters” the City is “or shall be
empowered by general laws to legislate.” See also 5 McQuillin, The Law of

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Municipal Corporations § 16:53 (3d ed.) (“The power of initiative or
referendum usually is restricted to legislative ordinances, resolutions, or
measures, and is not extended to executive or administrative action . . . .”)
(emphasis added).

¶12 “Municipal corporations . . . act in several capacities:
legislative, executive, administrative, and quasi-judicial.” Wennerstrom v.
City of Mesa, 169 Ariz. 485, 488 (1991). In drawing a distinction between
matters which are legislative and those which are administrative, our
supreme court has said:

The test of what is a legislative and what is an administrative
proposition, with respect to the initiative or referendum, has
further been said to be whether the proposition is one to make
new law or to execute law already in existence. The power to
be exercised is legislative in nature if it prescribes a new
policy or plan; whereas, it is administrative in its nature if it
merely pursues a plan already adopted by the legislative
body itself, or some power superior to it. Similarly, an act or
resolution constituting a declaration of public purpose and
making provision for ways and means of its accomplishment
is generally legislative as distinguished from an act or
resolution which merely carries out the policy or purpose
already declared by the legislative body.

Id. at 489 (quoting 5 E. McQuillin, The Law of Municipal Corporations § 16:55
at 266). Further:

Acts that deal with a small segment of an overall policy
question generally are administrative, as are decisions that
require specialized training and experience in municipal
government and intimate knowledge of the fiscal and other
affairs of a city in order to make a rational choice, even though
they may also be said to involve the establishment of policy.

5 McQuillin, The Law of Municipal Corporations § 16:53.

¶13 Under the Wennerstrom v. City of Mesa test, we consider
whether the proposition is (1) permanent or temporary, (2) of general or
specific, limited application, and (3) a matter of policy creation versus a
form of policy implementation. Id. at 489; Redelsperger v. City of Avondale,
207 Ariz. 430, 433, ¶ 15 (App. 2004).

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¶14 The Committee argues the Initiative is permanent because it
“preserves the identified roadway forever,” and is of general application
because it does not just prohibit the Streetscape Project but rather prevents
“any alteration to Lake Powell Boulevard.” Although there is no temporal
limitation in the Initiative’s language, the Initiative is “applicable only to a
specific area”—the 1.4-mile portion of 3.4-mile-long Lake Powell Boulevard
“between Rim View Drive and Aspen Street.” See Redelsperger, 207 Ariz. at
434, 437, ¶¶ 15, 28 (finding Avondale’s issuance of a conditional use permit
was an administrative act rather than legislative and therefore not subject
to referendum). The Initiative is of “specific (limited) application”—a
conclusion that supports the superior court’s determination that it
constitutes an administrative act. Id. at 433, ¶ 15.

¶15 In addition, the Initiative fails to satisfy the third prong of the
Wennerstrom test. The City established policy when it adopted its “Strategic
City Council Priorities” providing for the development and
implementation of the Streetscape Project. Implementation of the
Streetscape Project includes a determination by City staff as to the size and
number of lanes of Lake Powell Boulevard within the Project. A.R.S. § 9-
240(B)(3) grants the City Council “exclusive control” within City limits
“over the streets, alleys, avenues and sidewalks of the town and to give and
change the names thereof.” And as an exercise of this authority, Page City
Code § 33.23 gives the City Engineer, a City employee, responsibility over
the City’s streets, suggesting that the size and number of lanes on streets
and roads is administrative. Because the Initiative attempts to control the
size and number of lanes within the Streetscape Project, an administrative
duty of City staff, the subject matter of the Initiative is administrative rather
than legislative. We find no error in the superior court’s judgment denying
the Committee’s request for declaratory, injunctive, mandamus, and other
relief.

CONCLUSION

¶16 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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