Phoenix petitions Arizona Supreme Court in referendum case
By Linda Bentley | April 15, 2009
City attorney requests after-the-fact ratification to pursue legal action
PHOENIX – On April 8, Phoenix City Council voted unanimously in favor of filing a petition for review with the Arizona Supreme Court in the case of Randy L. Jones (shown, right) v. Mario Paniagua, et al. It was pretty much a symbolic gesture, as the petition had already been filed before the last minute add-on item appeared at end of the agenda.
An April 6 docket entry for the case at the Arizona Court of Appeals noted a letter to the court from Rachelle M. Resnick, clerk of the Arizona Supreme Court, stating the city of Phoenix’s Petition for Review “is being treated as an expedited election matter/forward any partial record.”
The case stems from the Laveen community’s opposition to the December 2007 approval of a general plan amendment and rezoning request for approximately 27.45 acres located at 27th Avenue and Baseline Road from low-density rural zoning to high-density multi-family residential for a project submitted by former Phoenix City Mayor Paul Johnson under one of Berkana community names.
On Jan. 11, 2008, Jones filed a Statement of Organization for the Coalition to Preserve Laveen Village and filed two referendum petitions on Feb. 7, 2008 with the city clerk containing about 8,000 signatures each related to the general plan amendment and rezoning.
On Feb. 12, City Clerk Mario Paniagua issued certificates of insufficiency for both petitions, citing the petitions were found to contain less than the minimum number (9,798) required for a referendum petition.
The basis for calculating the number of electors necessary to initiate a referendum is provided in the Arizona Constitution 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.”
The Phoenix City Charter states a referendum 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.”
State statute, however, provides the basis of determining the number of electors required for a referendum as “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 …”
Addressing inconsistent laws, it states, “The charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities,” and says laws that are in conflict are to be treated as if they have been repealed, allowing the rest of the city charter to remain intact.
It is the city charter, opting for the district system of municipal government, with eight separate council districts and staggered four-year terms that places the city in this predicament.
In cities and towns, such as Scottsdale, that do not use a districting system, whereas the mayor and every council member represent the entire city, the election for mayor and council are all citywide elections.
Council members in each of the Phoenix’s eight-districts serve four-year staggered terms, and, the number of districts holding run-off elections can affect the total number of electors eligible to vote during the election.
While Mayor Phil Gordon was reelected in September 2007 with 76 percent of the vote, there were runoff elections held in two districts in November 2007 in which council members were elected, producing a substantially lower voter turnout than the citywide election for mayor and resulted in only 2,727 required signatures for a referendum.
After Paniagua refused to certify his referendum petitions, Jones filed a special action, application for an order to show cause, and for preliminary and permanent injunctions against Paniagua, Gordon and the Phoenix City Council.
Maricopa County Superior Court Judge Richard Trujillo found in favor of Jones in April 2008, a ruling that was affirmed by the court of appeals on March 26, 2009.
Additionally, the court of appeals affirmed the filing of a special action to require the city clerk to process Jones’ referendum petitions, was indeed a “mandamus-type action,” allowing for an award of attorneys’ fees.
Sometime between March 26 and Resnick’s letter dated April 6, two days before the council meeting, the city attorney had apparently already filed a petition for review with the Arizona Supreme Court.
So, during the April 8 council meeting, when Councilman Sal DiCiccio made the statement about council needing to approve the item and move forward with the appeal, because the lower signature requirement for referendums would cripple the city and prevent it from doing business, the city attorney had already done so, although it is unclear as to under whose direction.
Jones said he is looking into whether or not sufficient public notice was given for the last-minute item being added to the agenda.