My View
By Don Sorchych | June 18, 2008
• Reinstate REF02008-0
• Judicial Watch missing without action
In last week’s My View, I laid out the process usually followed when referendum signature sheets are turned in to the town clerk.
I wrote, “Town Clerk Carrie Dyrek, in conjunction with the Maricopa County Elections Department, is evaluating the signatures to assure at least 70 signatures are valid and that the form of the statute is satisfied.
“Assuming those conditions are satisfied council will vote on an election day to vote the issue.
“However as I warned previously, the town may take a position the vote which passed the PM-10 dust control ordinance was administrative rather than legislative and therefore not referable.”
Well, apparently that procedure wasn’t followed at all. Town administration went directly to the town attorney, who rendered the opinion he was doubtless told to produce.
So never mind all you volunteers who braved Arizona heat to gather signatures, you will never know how many of the 209 signatures are valid. And obviously the town could care less. They got the result they wanted; kill the referendum and bow to the all powerful Oz.
Back in the mid-90s, I filed for a referendum to overturn the approval of Red Dog Ranch. I needed a number, requisite forms, etc. The town refused.
I hired an attorney from Phoenix and we went to court. The judge hearing the case had just left the criminal bench and this was the first civil case on his calendar.
The judge asked, “Why not let him circulate? He may not get enough signatures.”
The attorney representing Red Dog Ranch said, “Your honor, do you realize how many signatures he needs to get on the ballot?”
“No,” said the judge.
“Only 40,” said Paul Gilbert.
“Oh” said the judge, “I see what you mean. I rule in favor of the defendant.”
This was an outrageous ruling. The law was clear, and it didn’t matter legally how small or large the required number was.
I went to other members of the activist group, told them I had spent $12,000 so far, asked if they agreed to an appeal, and told them if they did they would have to share the costs.
No takers, so I dropped a slam dunk appeal.
I don’t know if it’s still true, but up until a few years ago, I had the distinction of being the only party that had filed a lawsuit against Cave Creek – and lost.
I maintain Town Attorney Cliff Mattice of Mariscal Weeks shouldn’t have been contacted unless someone filed a lawsuit, as they did in Scottsdale. The referendum should have been able to go to a public vote, assuming 70 of 209 signatures were valid.
Scottsdale approved Amy Gantley’s referendum by council vote and set an election date. Then former Scottsdale Councilman Kevin Osterman filed a lawsuit claiming the action taken by council was administrative.
The judge agreed and threw out the referendum.
So in Cave Creek we have returned to rule by attorney as we were in our sordid past when Tom Irvine was town attorney, and coincidentally Osterman’s attorney in the Scottsdale case.
So who contacted Mattice to review the referendum? Since Mayor Vincent Francia revealed he didn’t know until the opinion was rendered and the town gave me back the packet of signatures, it had to be Town Manager Usama Abujbarah.
Choice of law firms and access to the law firm resides with the council and mayor, not the town manager, yet as far as I know, neither the mayor nor any council member was aware of actions taken unilaterally, and improperly, by the town manager.
Mattice and Abujbarah relied on this statement from “A.R.S 9-500.04, Municipalities, such as the town, were required to adopt and implement specific regulations aimed at controlling and reducing dust emissions in certain areas of the State, specifically area A.”
The emphasis was on required, thereby opining the town had no choice but to pass the ordinance.
All that was referred was the specific ordinance adopted. Although the town attorney admitted the Scottsdale opinion was not a legal precedent, he nonetheless cited it.
Superior Court Judge Peter Swann who heard the Scottsdale case opined at length that all a municipality needed to do was to meet the minimum requirements of the state law.
The Cave Creek ordinance could for example be stricter than the state law and it could exempt certain entities which could be the subject of further action by state or county.
Therefore, I argue, citizens have a right to object, by referendum, to reduce the ordinance to the bare minimum. I think that is want we did and council should reconsider letting the referendum follow due process, which we were not afforded.
Judicial Watch missing without action?
Judicial Watch, the conservative watch dog organization, is a high profile organization which fights for constitutional rights for all Americans. They have a winning record in court often battling with organizations like the offensive ACLU.
They generously offered to join forces with Cave Creek to defend the town in the lawsuit brought by ACLU and MALDEF.
Unfortunately, they interfaced with the town manager, who has treated them with benign neglect. As I write this editorial on Saturday, June 14, they haven’t been contacted even though this vital issue will be heard by council on Monday.
Is this a setup, or what?
So far Town attorney law firm Mariscal Weeks is reeling with shock over Federal Judge Rosemary Silver ruling to issue a temporary injunction.
And the council will face a vote with a single legal opinion.
Although Mayor Vincent Francia has promised to try to reach Judicial Watch before the council meeting, it is too little too late.
I repeat my assertion regarding the referendum, where is the mayor and council at this late date? And why is the town manager the focal point when the law firm reports to council not the town manager?
I hope the town council gets involved in this issue, continues the item, and gets enough solid legal opinion to know how to proceed.
Already, illegals are reinvading the town with smiles on their faces perhaps encouraged by ACLU/MALDEF to create an incident they can exploit.