Voice of Surprise v. Skip Hall

SUPREME COURT OF ARIZONA

VOICE OF SURPRISE, et al., ) Arizona Supreme Court
) No. CV-23-0117-PR
Plaintiffs/Appellants, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 22-0696 EL
SKIP HALL, et al., )
) Maricopa County
Defendants/Appellees. ) Superior Court
) No. CV 2022-013360
__________________________________)
FILED 06/23/2023

DECISION ORDER

Before the Court is an expedited election appeal regarding an

effort by Appellants Voice of Surprise, a political action committee,

and Quintus Schulzke, its chairperson, to refer Surprise, Arizona,

City Council Ordinance 2022-18 to a vote of the city’s electorate.

We issue this decision order with a more explanatory opinion to

follow so that the parties can proceed expeditiously to conclude this

matter. The Court’s decision is unanimous.

Ordinance 2022-18 adopted a preliminary development plan for a

large area of property that Appellees Dominium, Inc. and Truman Ranch

46 SWC LLC (collectively, “Private Defendants”) seek to develop. To

succeed in referring the Ordinance to the ballot, Appellants were

required to gather supportive signatures from ten percent of the

electorate who voted in the previous election at which a mayor or

council members were chosen. See Ariz. Const. art. 4, pt. 1, § 1(8);

A.R.S. § 19-142(A). Appellants initiated that effort on August 29,

2022, by filing an application for a petition serial number and a
Arizona Supreme Court No. CV-23-0117-PR
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statement of organization with the City Clerk for the City of

Surprise. See A.R.S. § 19-111(A). But the application did not set

forth the text of Ordinance 2022-18, as required by § 19-111(A).

Although the City Clerk realized the error, she accepted the

application without comment and issued a serial number for placement

on petition sheets Appellants circulated for signatures.

Appellants returned to the City Clerk’s Office on September 16

and submitted petition sheets bearing 5,432 signatures supporting

referral of Ordinance 2022-18 to the ballot. There is no dispute

that the petition sheets properly attached the Ordinance for review

by people signing the petition sheets. See A.R.S. § 19-112(B)

(requiring attachment). Thereafter, Appellee Dominium urged the City

Clerk to reject the petitions for multiple reasons, including

Appellants’ failure to attach the Ordinance to the application for a

petition serial number. On October 5, the City Clerk rejected all

the petition sheets and signatures based on this application error.

Appellants initiated this action by filing a complaint against

the City Clerk, other City of Surprise officials, and the Private

Defendants pursuant to A.R.S. § 19-122(A). Appellants asked the

superior court to compel the City Clerk to accept the petition sheets

and signatures and process them in accordance with A.R.S. § 19-121.01

to determine whether enough valid signatures supported placing the

referendum on the ballot. See A.R.S. § 19-141(A) (applying A.R.S.

§§ 19-101 to -161 to referenda concerning municipal legislation).
Arizona Supreme Court No. CV-23-0117-PR
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Dominium filed an answer and counterclaim challenging the legal

sufficiency of the referendum for multiple reasons, including the

application error.

After holding an evidentiary hearing on Appellants’ application

for preliminary and permanent injunctive relief, the court denied

Appellants’ requested relief and entered judgment for Appellees. It

reasoned that because Appellants were required to strictly comply

with the statutory requirements directing the referendum process, see

A.R.S. § 19-101.01, Appellants’ failure to file an application that

strictly complied with § 19-111(A) was fatal to the referendum

effort. The court of appeals affirmed. See Voice of Surprise v.

Skip Hall, 2023 WL 3107268, at *5 ¶ 26 (Ariz. App. Apr. 27, 2023).

We granted review to address whether the application error entitled

the City Clerk to reject the petition sheets and all signatures.

We agree with the superior court and the court of appeals that

Appellants failed to strictly comply with § 19-111(A) by omitting the

text of Ordinance 2022-18 in the application for a petition serial

number. We reject Appellants’ argument that this error served only

to destroy the legal presumption that the gathered signatures are

valid, and that Appellants restored that presumption by showing that

the objective underlying § 19-111(A)’s requirement was otherwise

satisfied. There is no challenge presently that the petition

signatures were improperly gathered from qualified electors and

therefore invalid. Whether or not the application complied with
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§ 19-111(A), the validity of the signatures is unaffected, and there

is nothing to “restore.”

The application for a petition serial number cannot be corrected

at this late date to include the text of Ordinance 2022-18. See

Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5 (1972) (disagreeing

that referendum proponents could “amend their petitions to comply

with the verification provision” outside the time permitted for

initiating the referendum effort). Nor can we excuse Appellants’

omission as a harmless error on the ground that neither the City

Clerk nor the electorate were confused about which Ordinance was the

subject of the proposed referendum. Doing so would mean advancing a

referendum effort that only substantially complied with statutory

requirements in violation of the legislative directive for strict

compliance. See § 19-101.01. Notably, Appellants do not argue

requiring strict compliance with § 19-111(A)’s requirement to include

the text of a challenged ordinance in the application as well as the

petition sheets unreasonably hindered or restricted Appellants’

constitutional right of referendum. See id.

We also disagree with Appellants that their reliance on the

City Clerk’s acceptance of the application excused strict compliance

with § 19-111(A). The Clerk performs a ministerial role in accepting

applications and issuing petition serial numbers. She must accept

and process any application submitted on the required form without

regard to its legal sufficiency. Section 19-111(A) only authorizes
Arizona Supreme Court No. CV-23-0117-PR
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the Clerk to reject an application if it is unaccompanied by the

applicant’s statement of organization. That did not occur here.

Consequently, the Clerk had no discretion to reject the application

but was required to accept it and issue a serial number. Doing so

did not cure Appellants’ non-compliance with § 19-111(A).

The City Clerk also had no obligation to tell Appellants they

had omitted the text of Ordinance 2022-18 from the application.

Section 19-111(B) formerly authorized city clerks to “advise the

person who has submitted the petition with a written statement of any

defects of which [the city clerk] is aware, but the [city clerk]

shall not refuse to assign a number to the petition.” See 1991 Ariz.

Sess. Laws ch. 1, § 1 (3d Sp. Sess.). But the legislature amended

the statute to remove that provision in 1991. Id. This intentional

elimination of statutory discretion by the Clerk to advise applicants

of defects also means she certainly had no obligation to advise

Appellants of the defect here.

Nevertheless, we conclude that the City Clerk erred by rejecting

the petition sheets and signatures submitted by Appellants. Sections

19-114(B), 19-121(C), 19-121.01, and 19-121.04 direct with exacting

detail how the Clerk must process the petition sheets, count the

signatures, and determine whether sufficient signatures support the

referendum. For example, within twenty days of receiving a

referendum petition, the Clerk must remove petition sheets not

containing a circulator’s completed, signed, and unmodified
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affidavit. § 19-121.01(A)(1)(d). But nothing authorizes the Clerk

to reject petition sheets and signatures because the application for

a serial number was legally insufficient. See Leach v. Reagan, 245

Ariz. 430, 436 ¶ 23 (2018) (“Relatedly, nothing in Title 19

authorizes or requires the Secretary to disqualify petition sheets or

signatures if the statement of organization, or any amendments to it,

did not comply with § 16-906. In contrast, elsewhere in Title 19,

the legislature has explicitly stated the Secretary’s obligation to

investigate the accuracy of initiative-related filings.”).

At oral argument before this Court, the City Clerk argued that

§ 19-101.01’s strict compliance directive for the “application and

enforcement” of the referendum statutes authorized her to reject the

petition sheets and signatures. We disagree. That provision does

not authorize the Clerk or anyone else to enforce strict compliance

with the statutes. And determining whether an application is legally

sufficient is a matter for a court to decide, not the Clerk. See W.

Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 431 (1991) (“[O]ur

statutes do not authorize, nor would our constitution permit, [the

Secretary of State’s Office] to pass ultimate judgment on whether

petitions comply with constitutional requirements. That is a

judicial function.”).

The City Clerk’s lack of authority to reject the petition sheets

and signatures for the application error does not end this matter.

As mentioned, Dominium filed a counterclaim challenging the
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referendum petitions on multiple bases, including that the

application failed to strictly comply with § 19-111(A). Appellants

did not answer the counterclaim, but the time for doing so had not

expired before the superior court entered its ruling on the request

for a preliminary and permanent injunction. As Appellants note, it

was not able to assert a laches defense against the City defendants.

See Mohave Cnty. v. Mohave-Kingman Ests., Inc., 120 Ariz. 417, 421

(1978) (“In general, equitable defenses . . . will not lie against

the state, its agencies or subdivisions in matters affecting

governmental or sovereign functions.”). But Appellants can assert

the defense against Dominium, and they should be given that

opportunity on remand.

To clarify, we have decided that Appellants did not strictly

comply with § 19-111(A), and that error cannot be undone. All

parties have had ample opportunity to be heard on that issue, and the

superior court is bound by our decision. We remand to permit

Appellants to file an answer to the counterclaim and raise any

applicable equitable defenses against Dominium. By doing so, we take

no position on the merits of any such defenses.

FOR THE FOREGOING REASONS,

IT IS ORDERED vacating the court of appeals’ opinion.

IT IS FURTHER ORDERED reversing the superior court’s judgment

and remanding to that court to permit Appellants to answer the

Dominium counterclaim and allege any applicable equitable defenses.
Arizona Supreme Court No. CV-23-0117-PR
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The court should thereafter address the merits of any such defenses.

IT IS FURTHER ORDERED a written opinion detailing the Court’s

reasoning will follow in due course.

DATED this 23rd day of June, 2023.

____________/s/_______________
ROBERT BRUTINEL
Chief Justice

TO:
Timothy A LaSota
Robert W Wingo
Ellen M Van Riper
Melinda A Bird
Jeffrey D Gross
Cameron C Artigue
Hon Scott A Blaney
Michael W Zimmerman
Jennifer Wright
Nancy L Davidson
Daniel J Adelman
Kory A Langhofer
Thomas J Basile
Amy M Wood
Hon Joseph C Welty
Hon Danielle Viola
Hon Jeff Fine

blc