Phoenix loses legal battle over ‘statutory interpretation’
By Linda Bentley | April 1, 2009
Appeals court agrees statute is ‘clear
and unambiguous’
PHOENIX – The Arizona Court of Appeals ruled last week against the city of Phoenix in favor of Randy Jones, affirming the lower court’s finding that A.R.S. § 19-142(A), which states: “The whole number of votes cast at the city or town election at which a mayor or councilmen were chosen last preceding the submission of the application for a referendum petition against an ordinance, franchise or resolution shall be the basis on which the number of electors of the city or town required to file a referendum shall be computed,” is clear and unambiguous. It also affirmed the award of attorney fees to Jones including fees incurred by Phoenix’s appeal.
When a city charter is in conflict with state statute, as the Phoenix City Charter is in this case, state statute prevails.
The Phoenix City Charter states that a referendum petition is valid if signed by “qualified electors of the city. Equal in number to ten per centum of the total number of votes cast at the last preceding general city election at which a mayor was elected.”
This all started in January 2008 when the Phoenix City Council approved a resolution approving a major general plan amendment and an ordinance to rezone property from low-density Ranch or Farm Residence to two new classifications of Multi-Family Residential on approximately 27.45 acres in the Laveen area.
Jones sued Phoenix City Clerk Mario Paniagua, Mayor Phil Gordon and the Phoenix City Council last year after Paniagua refused to certify his two referendum petitions containing approximately 8,000 signatures each, asserting the signature requirement was 9,798, based on 10 percent of the total number of votes cast at the last mayoral election held on Sept. 11, 2007.
Jones argued the number of signatures required, according to A.R.S. § 19-142(A), should be 2,727, based on 10 percent of the total number of votes cast during the more recent council run-off election held on Nov. 6, 2007.
Paniagua rejected Jones’ petitions as facially invalid based on his calculation of the signature requirement per the city charter.
The Arizona Constitution provides the requirements for calculating the number of electors necessary to initiate a referendum as 10 percent of the electors, allowing cities and towns to “prescribe the basis on which said percentages shall be computed … until provided by general law.”
State statute provides for that general law, invalidating the city charter.
The appellate court agreed with Jones and the superior court that the provision’s plain meaning “requires Phoenix to base the referendum signature requirement on the most recent mayoral or council election prior to the referendum petition application regardless whether it was a citywide or district election.”
Phoenix argued because the statute says “or” the city has a choice between basing the number of signatures on a mayoral or a city council election and said the city merely chose the mayoral election as the preferred alternative.
The court disagreed “for a number of reasons.”
The court said the city’s reasoning could lead to “unbridled discretion by a city clerk,” whereas the signature requirements could be established based upon the clerk’s preference in support or opposition to the merits of a referendum, an unconstitutional practice.
The court stated, “The best indicator of legislative intent is the statutory language. If it is clear and does not result in absurdity, then we cannot be persuaded by arguments related to history.”