Sherman v. City of Tempe

SUPREME COURT OF ARIZONA
En Banc

BARBARA J. SHERMAN; THOMAS L. ) Arizona Supreme Court
SHERMAN; ELEONORE CURRAN; NANCY ) No. CV-01-0287-PR
GOREN; GARY GOREN; CAROLE )
HUNSINGER; JALMA W. HUNSINGER; ) Court of Appeals
CATHERINE M. MANCINI; and ) Division One
DOMINIC D. MANCINI, ) No. 1 CA-CV 00-0348
)
Contestant, Plaintiffs-Appellants,) Maricopa County Superior
) Court
v. ) No. CV 00-010005
)
CITY OF TEMPE and NEIL GIULIANO, )
)
Contestee, Defendants-Appellees. ) O P I N I O N
)
__________________________________)

______________________________________________________________

Appeal from the Superior Court of Maricopa County
Honorable Arthur T. Anderson, Judge
AFFIRMED

______________________________________________________________

Opinion of the Court of Appeals, Division One
200 Ariz. 190, 24 P.3d 1285 (2001)
VACATED

______________________________________________________________

Brown & Bain, P.A. Phoenix
By Paul F. Eckstein
Joel W. Nomkin
Shelley D. Cutts
Attorneys for Barbara J. Sherman, et al.

Osborn Maledon, P.A. Phoenix
By Andrew D. Hurwitz
Jill Harrison
 Thomas Hudson
Attorneys for City of Tempe and Neil Giuliano

Tempe City Attorney’s Office Tempe
By C. Brad Woodford, City Attorney
Janis L. Bladine, Assistant City Attorney
Attorneys for City of Tempe and Neil Giuliano

Janet Napolitano, Attorney General Phoenix
By Joseph Kanefield
Assistant Attorney General
Attorneys for Amicus Curiae Secretary of State

Timothy M. Hogan Phoenix
Attorney for Amicus Curiae League of Women Voters of Arizona

David R. Merkel Tempe
General Counsel, Amicus Curiae League of Arizona Cities and Towns

Michael D. House Tucson
Dennis P. McLaughlin
Attorneys for Amicus Curiae City of Tucson

______________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1 We granted review to determine whether the City of Tempe

(“the City”) violated Arizona election statutes by failing to mail

publicity pamphlets ten days before the start of early voting for

its May 16, 2000 general election and, if so, whether the City’s

charter amendment, formerly Proposition 100, must be invalidated.

We also consider whether the charter amendment violates the Arizona

Constitution’s prohibition against special laws. We conclude that

the City did not violate the election statutes and that the charter

amendment is not an unconstitutional special law.

I.

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¶2 The City’s May 16, 2000 general election included

Proposition 100, a proposed charter amendment that would change the

City’s mayoral term from two years to four years beginning with any

term commencing on or after July 1, 2000. On April 13, 2000,

Maricopa County, acting pursuant to an intergovernmental agreement

with the City, mailed approximately 15,000 early ballots for the

City’s general election. On April 17, 2000, the City opened a

polling place for early voting. By the close of business on April

27, 2000, nearly 7,000 voters had cast early ballots either by mail

or in person. On April 28, 2000, City officials mailed voters the

pamphlets for the general election. The pamphlets included the

text of and analysis for Proposition 100. In May, the voters

adopted Proposition 100, the official tally showing 9,155 votes for

and 5,650 votes against.

¶3 In the City’s primary election on March 14, 2000,

incumbent Mayor Neil Giuliano had received a majority of the votes

cast. Because Giuliano won the primary election by a majority, the

general election ballot included no listing for the office of

mayor. Giuliano’s election became effective on May 16, 2000, and

his term of office began on July 1, 2000. The adoption of

Proposition 100 resulted in Giuliano’s term being lengthened from

two years to four years.

¶4 After the general election, Respondents, a group of City

voters, contested the election results by filing a special action

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complaint and statement of election contest in superior court under

Arizona Revised Statutes (A.R.S.) sections 16-672 through 16-674.

The complaint alleged that Proposition 100 was invalid because it

was an unconstitutional special law and because the publicity

pamphlets were not timely mailed pursuant to section 19-123.

¶5 The City and Mayor Giuliano moved to dismiss the

complaint, arguing that the publicity pamphlet requirement did not

apply, or that if it did apply, the City had timely mailed the

pamphlets. The trial court, treating the City’s motion as a motion

for summary judgment, held that Title 19's publicity pamphlet

requirement governed Proposition 100, that the City had timely

provided pamphlets, and that Proposition 100 was not an

unconstitutional special law. Respondents appealed.

¶6 The court of appeals invalidated the election, holding

that Proposition 100 was subject to the publicity pamphlet

requirement of Title 19 because “the statutes in Title 19, read

together and in harmony, advance the legislature’s intent to

require publicity pamphlets to be distributed to voters in

connection with proposed charter amendments.” Sherman v. City of

Tempe, 200 Ariz. 190, 195 ¶ 22, 24 P.3d 1285, 1290 ¶ 22 (App.

2001). Next, the court held that the City did not timely

distribute publicity pamphlets. Id. at 195 ¶ 27, 24 P.3d at 1290

¶ 27. Specifically, the court construed section 19-141.A's

requirement that pamphlets be distributed “not less than ten days

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before the election at which measures are to be voted upon,” as

requiring pamphlet distribution ten days before any voting can

occur, not just ten days before the day of the election. A.R.S. §

19-141.A (Supp. 2000); Sherman, 200 Ariz. at 196 ¶ 28, 24 P.3d at

1291 ¶ 28.

¶7 We granted review to determine whether “election,” as

used in section 19-141, refers to election day or to the date early

ballots are distributed and to consider whether the amendment

constitutes a special law under Arizona’s Constitution. After

hearing oral argument, we entered our order upholding Proposition

100 and stating that this opinion would follow. We exercise

jurisdiction pursuant to Article VI, Section 5.3 of the Arizona

Constitution and Rule 23 of the Arizona Rules of Civil Appellate

Procedure.

II.

¶8 Arizona’s election statutes do not require publicity

pamphlets for all elections. Rather, the secretary of state must

prepare and distribute publicity pamphlets when “ordered by the

legislature, or by petition under the initiative and referendum

provisions of the constitution, to submit to the people a measure

or proposed amendment to the constitution.” A.R.S. § 19-123.A

(Supp. 2000). By virtue of A.R.S. section 19-141.A, section 19-123

applies to “the legislation of cities, towns and counties” and,

therefore, requires cities to prepare and distribute publicity

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pamphlets when measures come before voters by way of initiative and

referendum. . We have never

determined whether a city charter amendment falls within the

language of sections 19-123 and 19-141. Because the parties have

not raised this issue here, however, we assume for purposes of this

opinion that Title 19 governs Proposition 100.

III.

¶9 Challenges concerning alleged procedural violations of

the election process must be brought prior to the actual election.

Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987)

(holding that “[p]rocedures leading up to an election cannot be

questioned after the people have voted, but . . . must be

challenged before the election is held”)(citing Kerby v. Griffin,

48 Ariz. 434, 444-46, 62 P.2d 1131, 1135-36 (1936)).1 Thus, before

considering the validity of Proposition 100, we first consider

whether Respondents’ claim alleges a violation of the election

process.

¶10 Election procedures generally involve “the manner in

which an election is held.” Tilson, 153 Ariz. at 470, 737 P.2d at

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The Court may, however, conduct post-election reviews
pertaining to matters other than the election process. See
generally Jennings v. Woods, 194 Ariz. 314, 982 P.2d 274 (1999)
(holding that because Tony West did not satisfy the requisite
statutory criteria, he was ineligible to be elected to the office
of Commissioner of the Arizona Corporation Commission).

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1369. For example, the election procedures at issue in Tilson

related to the manner in which ballot initiatives must be written

and described in publicity pamphlets. Id. at 471-72, 737 P.2d at

1370-71. Similarly, the complaint in Kerby concerned the procedure

for printing and circulating publicity pamphlets prior to an

election. Kerby, 48 Ariz. at 449, 62 P.2d at 1137. This action,

which involves the timing of publicity pamphlet distribution, also

concerns proper election procedure.

¶11 By filing their complaint after the completed election,

Respondents essentially ask us to overturn the will of the people,

as expressed in the election. In addition, Respondents ask us to

overlook our own mandate that courts should review alleged

violations of election procedure prior to the actual election. See

Tilson, 153 Ariz. at 470, 737 P.2d at 1369. Ordinarily, we would

find Respondents’ claim precluded because they did not challenge

the timing of the City’s distribution of publicity pamphlets before

the election. Because neither party raised this issue, however, we

indulge the further assumption that Respondents brought the action

in a timely manner.

IV.

¶12 Even if Respondents had timely challenged the City’s

procedure, we would not overturn the May 16, 2000 election because

the City complied with the procedural requirements of Title 19.

Respondents allege that the City violated those portions of Title

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19 which, at the time of the May 16, 2000 general election,2

directed cities to mail publicity pamphlets containing the title,

text and description of initiatives and referenda not “less than

ten days before the election at which the measures are to be voted

upon.” A.R.S. §§ 19-123.A.1-2, 19-141.A .

Specifically, Respondents argue that the term “election” in the

pre-amendment version of section 19-141.A refers to the date in

April that early voting started, rather than to the actual day of

the election. Therefore, Respondents assert, the statute required

that the City mail publicity pamphlets ten days before the start of

early voting, not merely ten days before election day.

¶13 We disagree. The legislative history behind Arizona’s

election statutes, the legislature’s recent changes to section 19-

141, other Arizona statutes that employ the word “election,” and

the language of the statute itself, all demonstrate that section

19-141.A refers to election day, not to the start of early voting.

A.

¶14 The legislature first enacted section 19-141 in 1912.

See . Like the

modern-day statute, the 1912 version of the statute governed

2
The 2001 amendments to Ariz. Rev. Stat. (A.R.S.) § 19-
141, see 2001 Ariz. Sess. Laws, ch. 193 § 1, changed the date for
pamphlet distribution. See ¶ 16, infra. The issues here, however,
involve the statute in effect at the time of the May 2000 election.

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specified local elections and required that publicity pamphlets be

distributed “not less than eight days before the election at which

the measures are to be voted upon.” Id.3 Early voting, which was

formerly limited to absentee voting, did not exist in Arizona until

1925. See . Therefore, when the

legislature enacted the publicity pamphlet requirement in 1912, it

could not have intended “election” to refer to the start of early

voting.

¶15 Moreover, the legislature did not change the language of

section 19-141 after absentee voting came into existence in 1925.

If the legislature had desired that the timing of pamphlet

distribution be governed by the start of early voting, rather than

by election day, it could have amended the statute to require that

pamphlets be made available before absentee voting began. For

another seventy-five years, however, the statute defined the date

of pamphlet distribution by referring to a specified number of days

before the election.

¶16 In 2001, the legislature did change the required date for

pamphlet distribution when it amended section 19-141 to require

cities to distribute publicity pamphlets “before the earliest date

3
In 1991, the legislature changed the distribution
requirement to “ten days before the election at which the measures
are to be voted upon.” 1991 Ariz. Sess. Laws, 3rd Sp. Sess., ch.
1 § 21 (emphasis added).

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for receipt by registered voters of any requested early ballot for

the election at which the measures are to be voted on.” A.R.S. §

19-141.B (Supp. 2001). The legislature’s decision to enact this

amendment confirms that the pre-amendment version of section 19-141

did not contemplate mailing publicity pamphlets prior to the start

of early voting. The legislature had no reason to insert “before

the earliest date . . . of any requested early ballot” if the

original statute already required distribution of publicity

pamphlets before the start of early voting. See Ruiz v. Hull, 191

Ariz. 441, 450 ¶ 35, 957 P.2d 984, 993 ¶ 35 (1998) (“When

construing statutes, we must . . . give meaningful operation to

each . . . provision[ ].”). This principle applies with particular

force to a word or phrase purposely inserted into an existing

statute by amendment.

¶17 Furthermore, by describing the early ballots as being

“for the election at which the measures are to be voted on,” the

legislature distinguished early voting from election day. It

follows that while Arizona’s current law requires cities to

distribute publicity pamphlets before the start of early voting,

the former law, which was the law under which the City conducted

its May 16, 2000 general election, required distribution ten days

before election day.

B.

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¶18 The language of the pre-amendment as well as the post-

amendment versions of section 19-141 also indicates that “election”

refers to election day. By modifying the term “election” with the

phrase “at which the measures are to be voted upon,” the pre-

amendment statute contemplates elections as occurring on a specific

date because, although votes may be cast prior to election day,

measures are not conclusively voted upon until the actual day of

election. Moreover, interpreting “election” as election day in the

post-amendment statute avoids an absurd result. See School Dist.

No. 3 v. Dailey, 106 Ariz. 124, 127, 471 P.2d 736, 739 (1970)

(statutes must be given a sensible construction which will avoid

absurd results). If we read “election” as referring to the start

of early voting, the post-amendment statute would nonsensically

require that publicity pamphlets be distributed “before the

earliest date for receipt . . . of any requested early ballot for

the [early voting] at which the measures are to be voted on.” See

A.R.S. § 19-141.B (Supp. 2001). Construing “election” as “election

day,” on the other hand, gives meaning to the amended statute.

C.

¶19 Finally, both the Arizona Constitution and Arizona’s

election statutes employ the word “election” to refer to a

particular day. For instance, the Constitution states that

“[t]here shall be a general election . . . on the first Tuesday

after the first Monday in November.”

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 Similarly, A.R.S. section 16-211 provides for a

general election on the first Tuesday in November.

In addition, A.R.S. section 16-204.A sets forth specific

dates for conducting all other state elections by requiring that

“all elections in this state be conducted on a limited number of

days.” (Supp. 2000) (emphasis added). Thus,

according to the Constitution and Arizona election statutes,

elections occur on one particular date and the term “election”

refers to that date. Adopting Respondents’ definition of

“election” in section 19-141 could introduce considerable and

unnecessary confusion as to the term’s meaning in these other

statutes.

D.

¶20 The legislative history and language of section 19-141,

together with other Arizona election statutes, make plain that

“election,” as employed in the pre-amendment statute, refers to

election day. Section 19-141.A, therefore, required cities to

prepare and distribute publicity pamphlets no less than ten days

prior to election day.

¶21 In this case, the City mailed publicity pamphlets for

Proposition 100 on or about April 28, 2000. The pamphlets included

the text of Proposition 100, analysis by the city attorney, and two

arguments against the proposition. Because the City mailed the

pamphlets more than ten days before election day, May 16, 2000, it

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did not violate Title 19, and the City’s charter amendment is not

invalid on that basis.

V.

¶22 Respondents also argue that the City’s charter amendment

is an unconstitutional special law under Article IV, Part 2,

Section 19.10 of the Arizona Constitution because the amendment

retroactively extends the term of the City’s incumbent mayor from

two years to four years.

A.

¶23 An unconstitutional special law grants “to any

corporation, association, or individual, any special or exclusive

privileges.” Ariz. Const. art. IV, pt. 2, § 19.10 To determine

whether a law is a special law we first consider whether the

classification created by the law has a reasonable basis. Republic

Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 149, 800 P.2d 1251,

1257 (1990). If the law bears a rational relationship to a

legitimate legislative objective, we then consider two additional

factors: “(1) whether the classification encompasses all members of

the relevant class; and (2) whether the class is elastic, allowing

members to move into and out of the class.” Id.

B.

¶24 The proposed charter amendment established “a four (4)

year term for the office of mayor to be operative for the term of

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the mayor beginning on or after July 1, 2000 (this election).”4

Extending the mayoral term from two to four years bears a rational

relationship to the legitimate governmental objective of reducing

election costs by holding an election every four years instead of

every two years. In addition, the amendment makes the mayoral term

consistent with the four-year terms for Tempe city council members.

Thus, the charter amendment has a rational basis.

¶25 To determine whether the amendment encompasses all

members of the relevant class, we look to whether it applies

“uniformly to all cases and to all members within the circumstances

provided for by the law.” Id. at 150, 800 P.2d at 1258. Here, the

amendment includes all members of the relevant class, Tempe mayors,

because all those who hold the office of Tempe mayor on or after

July 1, 2000, will serve a four-year term.

¶26 Finally, a general law, as opposed to a prohibited

special law, “must be elastic, or open, not only to admit entry of

additional persons . . . but also to enable others to exit the

statute’s coverage when they no longer have those characteristics.”

Id. (citations omitted). The City’s charter amendment is by its

very nature flexible because it provides that a new mayor shall be

elected every four years. Thus, the amendment not only allows a

4
Ballot Description of Proposition 100, Statement of
Stipulated Facts by the Parties in Appendix to Petition for Review,
Part A.

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new person to enter the class every four years, but also mandates

that the incumbent mayor exit the class once his or her term has

expired.

¶27 Because the City’s charter amendment rests on a rational

basis, encompasses all those who are and will become City mayors,

and allows persons to move into and out of the class, the amendment

does not constitute a prohibited special law.

VI.

¶28 For the foregoing reasons, we vacate the opinion of the

Court of Appeals and affirm the judgment of the Superior Court.

__________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

___________________________________
Charles E. Jones, Chief Justice

____________________________________
Stanley G. Feldman, Justice

____________________________________
Thomas A. Zlaket, Justice

_____________________________________________
William E. Druke, Judge*

* Pursuant to Ariz. Const. Article VI, Section 3, the Honorable
William E. Druke, Judge of the Court of Appeals, Division Two, was
designated to sit on this case.

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