DEBRA ARRETT and SHIRLEY LAMONNA v. JULIE K. BOWER, Oro Valley Town Clerk MICHELE REAGAN, Arizona Secretary of State ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
DEBRA ARRETT AND SHIRLEY LAMONNA,
Plaintiffs/Appellants,
v.
JULIE K. BOWER, ORO VALLEY TOWN CLERK,
Defendant/Appellee,
MICHELE REAGAN, ARIZONA SECRETARY OF STATE,
Intervenor.
No. 2 CA-CV 2015-0017
Filed March 12, 2015
Appeal from the Superior Court in Pima County
No. C20150346
The Honorable Gus Aragon, Judge
AFFIRMED
COUNSEL
Risner & Graham, Tucson
By William J. Risner
Counsel for Plaintiffs/Appellants
Curtis, Goodwin, Sullivan, Udall & Schwab, P.L.C., Phoenix
By Kelly Y. Schwab and Patricia E. Ronan
ARRETT v. BOWER
Opinion of the Court
Tobin C. Sidles, Director of Town of Oro Valley
Legal Services, Oro Valley
Counsel for Defendant/Appellee
Mark Brnovich, Arizona Attorney General, Phoenix
James Driscoll-MacEachron, Assistant Attorney General
Counsel for Intervenor
OPINION
Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.
M I L L E R, Presiding Judge:
¶1 In this expedited election appeal, we are asked to decide
whether Julie K. Bower, the Clerk of the Town of Oro Valley,
correctly rejected all signature sheets of a referendum petition filed
by appellant Shirley Lamonna, for lack of compliance with A.R.S.
§ 19-111(B), and whether the statute and its enforcement here is
constitutional. We conclude Lamonna failed to strictly comply with
§ 19-111(B), which requires the serial number issued for the
referendum petition to appear on both sides of each petition sheet,
and application of this and related statutes in this case is
constitutional. Bower therefore acted correctly and we affirm the
trial court’s denial of Appellants’ petition for a writ of mandamus.
Factual and Procedural Background
¶2 The material facts are undisputed. On December 17,
2014, the council of the Town of Oro Valley (the Town) and its
mayor adopted Resolution No. (R)14-66 (the Resolution), approving
the Town’s acquisition of the El Conquistador Country Club, Golf,
and Tennis facilities (the Property) for one million dollars, for the
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Opinion of the Court
purpose of converting the Property into a community center.1 The
Resolution authorizes the Town’s manager “to take such steps as are
necessary to acquire” the Property. On December 18, 2014,
Lamonna, as chairperson of “T.O.O.T.H. in OV,” a political
committee that opposed the Resolution, registered the committee
and filed an application for a referendum petition serial number.
Bower issued Lamonna serial number OVREF 14-01.
¶3 On January 15, 2015, Lamonna returned 249 petition
sheets to the clerk’s office, then completed and signed a receipt,
which Bower also signed. Lamonna learned the petition sheets were
defective because the Resolution number was used rather than the
assigned serial number as required by § 19-111(B). See also A.R.S.
§ 19-101(B). Shortly thereafter, Bower rejected all sheets for OVREF
14-01 because none of them included the serial number. On
January 23, 2015, Arrett 2 and Lamonna filed a statutory special
action pursuant to A.R.S. § 19-122(A), seeking a writ of mandamus
compelling Bower to accept the petition sheets Lamonna had
submitted as part of OVREF 14-01, and to transmit the petitions to
the Pima County Recorder for verification and further processing for
placement of the referendum on the ballot for the next election. See
A.R.S. § 19-121.01.
¶4 Bower filed an answer to the complaint and a motion to
dismiss/motion for summary judgment. The trial court set the
matter for an order to show cause hearing on February 3, 2015.
1 The property consists of a 31,475-square-foot building, a
5,600–square-foot building, approximately 324 acres of land, thirty-
one tennis courts, two swimming pools, and forty-five holes of golf.
2 Arrett also applied for and received a referendum serial
number, OVREF 15-01, pertaining to the Resolution, but Appellants
clarified at oral argument that this petition is not the subject of the
appeal because it contained the required serial number. Instead,
Arrett is a party to this action by virtue of her status as a resident of
the Town and her opposition to the Resolution. Bower also rejected
OVREF 15-01 for having insufficient signatures. Appellants are not
challenging that determination.
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ARRETT v. BOWER
Opinion of the Court
After Bower and Lamonna testified at that hearing, the parties
submitted the matter to the court based on their testimony, the
pleadings, memoranda, and exhibits. The court denied the motion
to dismiss at the end of the hearing but took the matter under
advisement, issuing its order denying the request for a writ of
mandamus the following day. The court found the petition sheets
did not comply with § 19-111(B), Bower had acted in accordance
with the law in rejecting them, and Arrett and Lamonna had not
sustained their burden of establishing they were entitled to special-
action relief. The court denied Appellants’ request to stay its order.
¶5 Appellants’ accelerated appeal pursuant to Rule 10,
Ariz. R. Civ. App. P., followed. They filed a motion in this court
asking us to stay the trial court’s order and to enjoin the Town from
further negotiations for or finalization of its purchase of the
property, which was expected to occur sometime in March. We
denied the request for a stay.
Discussion
¶6 Appellants contend the petition sheets complied with
all requirements provided in article IV, pt. 1, § 1, of the Arizona
Constitution, particularly § 1(9). Characterizing § 19-111(B) as “non-
substantive,” they assert the “undisputed error” did not invalidate
the sheets. Appellants argue § 19-111(B) is not among the “helpful”
kinds of limited provisions the legislature may enact to facilitate the
important constitutional right of the electorate to initiative and
referendum, and is, in fact, unconstitutional. They also challenge
the application of a strict compliance standard to referenda,
suggesting the statute is vague on its face or as applied here.3
3Appellants’ arguments in their opening brief posit facial and
as-applied challenges to the constitutionality of § 19-111(B). In their
reply to Bower’s answering brief and their response to intervenor
Secretary of State’s brief, they limit the challenge to the application
of the statutes in these circumstances. However, they returned to
their dual challenge when they asserted during oral argument that
the failure to include a serial number should never be fatal to a
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¶7 “We review a trial court’s decision on a request for
injunctive or mandamus relief under § 19-122 for an abuse of
discretion.” Parker v. City of Tucson, 233 Ariz. 422, ¶ 11, 314 P.3d 100,
106 (App. 2013). An abuse of discretion includes an error in the
interpretation or application of the law. See id. This appeal raises
questions regarding the interpretation and application of election
statutes and Arizona’s constitution; we review these questions of
law de novo. Pedersen v. Bennett, 230 Ariz. 556, ¶ 6, 288 P.3d 760, 762
(2012).
¶8 “Our primary purpose in interpreting a statute is to
give effect to the legislature’s intent.” Parker, 233 Ariz. 422, ¶ 12, 314
P.3d at 106. A statute’s plain language is the best reflection of the
legislature’s intent; therefore, when the language “is clear and
unambiguous we need look no further than the statute’s terms to
determine its meaning and do not employ other principles of
statutory construction.” Id. These principles of construction apply
to the interpretation of Arizona’s constitution, requiring us to
interpret its provisions “to effectuate the intent of those who framed
[them].” Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430
(1994); see also Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R.,
228 Ariz. 100, ¶ 6, 263 P.3d 649, 651 (App. 2011) (if language of
constitutional provision is “unambiguous, we generally must follow
the text as written”).
¶9 The Arizona Constitution reserves the power of
initiative and referendum to the qualified electors of cities, towns,
and counties. Ariz. Const. art. IV, pt. 1, § 1(8). This court recognizes
the importance of and “respect[s] the citizens’ constitutional right to
challenge a government’s legislative actions by referring a duly
enacted measure to the ballot for a vote.” Sklar v. Town of Fountain
Hills, 220 Ariz. 449, ¶ 8, 207 P.3d 702, 705 (App. 2008). Indeed, the
courts of this state “have long recognized the strong public policy
favoring the initiative and referendum.” Van Riper v. Threadgill, 183
Ariz. 580, 582, 905 P.2d 589, 591 (App. 1995), citing W. Devcor, Inc. v.
City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991). The
referendum petition, which effectively positions the argument as a
facial challenge.
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Opinion of the Court
right of initiative and referendum has been “characterized . . . as
‘vital,’ and one so important to the authors of our constitution that
they included sufficient machinery in the constitution to make the
right self-executing.” Id., quoting Crozier v. Frohmiller, 65 Ariz. 296,
298, 179 P.2d 445, 447 (1947).
¶10 Arizona’s constitution includes certain requirements as
to the form and contents of initiative and referendum petitions.
Ariz. Const. art. IV, pt. 1, § 1(9). As Appellants correctly point out,
article IV, part 1, is self-executing. See Ariz. Const. art. IV, pt. 1,
§ 1(16). But as they concede, the fact that the constitutional
provisions are self-executing does not preclude the legislature from
enacting laws pertaining to referenda and initiatives. Direct Sellers
Ass’n v. McBrayer, 109 Ariz. 3, 5, 503 P.2d 951, 953 (1972). Indeed,
the constitution expressly permits localities to “prescribe the manner
of exercising said powers,” and to supplement the provisions of the
constitution as long as they do so “within the restrictions of general
laws.” See Ariz. Const. art. IV, pt. 1, § 1(8). Our courts repeatedly
have recognized the power of the legislature to regulate the
referendum process. See, e.g., Cottonwood Dev. v. Foothills Area Coal.
of Tucson, Inc., 134 Ariz. 46, 49, 653 P.2d 694, 697 (1982); Direct Sellers,
109 Ariz. at 5, 503 P.2d at 953; Lawrence v. Jones, 199 Ariz. 446, ¶¶ 7-9,
18 P.3d 1245, 1248-49 (App. 2001). “If such legislation does not
unreasonably hinder or restrict the constitutional provision and if
the legislation reasonably supplements the constitutional purpose,
then the legislation may stand.” Direct Sellers, 109 Ariz. at 5, 503
P.2d at 953 (upholding validity of statute requiring circulators of
referendum petitions be qualified electors, even absent
constitutional requirement).
¶11 The legislature initially adopted laws relating to
initiative and referendum in 1953, “prescribing the form, verification
and method of circulation of petitions.” 1953 Ariz. Sess. Laws,
ch. 82. The stated purpose of these laws was to “further implement[]
the provisions of the Constitution,” prevent fraud and abuse of the
process, and “safeguard to the people their right of initiative and
referendum in its original concept.” 1953 Ariz. Sess. Laws, ch. 82,
§ 1. In 1989, the legislature amended existing statutes and enacted
new provisions relating to initiative, referendum, and recall
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elections. 1989 Ariz. Sess. Laws, ch. 10. It expressly stated the
purpose of this legislation:
The right of initiative and referendum shall
be broadly construed. If there is doubt
about requirements of ordinances, charters,
statutes or the constitution concerning only
the form and manner in which the power
of an initiative or referendum should be
exercised, these requirements shall be
broadly construed, and the effect of a
failure to comply with these requirements
shall not destroy the presumption of
validity of citizens’ signatures, petitions or
the initiated or referred measure, unless the
ordinance, charter, statute or constitution
expressly and explicitly makes any fatal
departure from the terms of the law.
1989 Ariz. Sess. Laws, ch. 10, § 1.
¶12 The substance of § 19-111 was contained in the various
statutes enacted in 1953 that adopted portions of the 1939 Arizona
Code, specifically, § 60-103, which required the issuance of a serial
number. 1953 Ariz. Sess. Laws, ch. 82, § 3. Section 19-111(B)
currently provides as follows:
On receipt of the application, the secretary
of state [town clerk4] shall assign an official
serial number to the petition, which
number shall appear in the lower right-
hand corner of each side of each copy
4 The statutes regarding initiative and referendum apply to
cities, counties and towns, unless expressly provided otherwise in
that article. A.R.S. § 19-141(A) (“[D]uties required of the secretary of
state as to state legislation shall be performed in connection with
such legislation by the city or town clerk . . . [or] officer in charge of
elections.”).
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Opinion of the Court
thereof, and issue that number to the
applicant. The secretary of state shall
assign numbers to petitions in numerical
sequence, and a record shall be maintained
in the secretary of state’s office of each
application received and of the numbers
assigned and issued to the applicant.
(Emphasis added.) The significance of the serial number is
reinforced in other statutes. Section 19-101(B), A.R.S., requires each
petition sheet include this admonition on the top of the sheet: “It is
unlawful to sign this petition before it has a serial number.” Most
important, § 19-121.01(A)(1)(c) requires the secretary of state to
remove “[t]hose sheets not bearing the petition serial number in the
lower right-hand corner of each side.”
¶13 Appellants argue the serial number requirement under
§ 19-111(B), unlike requirements of other statutes enacted to
facilitate the initiative or referendum process, “is meaningless to
petition signers and practically useless to town clerks.” They
suggest the number of the Resolution, which they placed on the
petition sheets, is “more meaningful” to Oro Valley residents who
sign the petition because it makes clear the signatures relate to that
Resolution. And, they argue, the “statute does not reveal or explain
the purpose of the serial number which appears to be clerical and
not citizen informative or substantive.” Appellants essentially
contend the statute unconstitutionally exceeds the permissible scope
of legislation in this area because it would not assist the electors in
deciding whether to sign the petition; it does not “‘supplement[]’ the
constitutional purpose” and, it is unduly burdensome. They
conclude that its application divested Oro Valley residents of their
right to referendum. As discussed below, this view is unnecessarily
narrow with respect to the effect and purpose of § 19-111(B).
¶14 We first address Bower’s threshold argument that the
constitutional challenge was waived because it was not sufficiently
developed in the trial court. The challenge was raised briefly, albeit
broadly and not with the specificity they have raised on appeal.
Nevertheless, we think the argument was sufficiently preserved for
appellate review and we will address it given the importance of the
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Opinion of the Court
right involved. See Harris v. City of Bisbee, 219 Ariz. 36, n.3, 192 P.3d
162, 166 n.3 (App. 2008) (addressing issues that could be regarded as
waived because court has duty to determine legal sufficiency of
referendum petitions and “whether they comply strictly with all
relevant statutory and constitutional provisions”).
¶15 Bower further and correctly asserts that Appellants
failed to comply with A.R.S. § 12-1841, which requires notification to
the Arizona Attorney General, the Speaker of the House of
Representatives, and the President of the Senate when a party
challenges as unconstitutional any “state statute, ordinance,
franchise or rule.” We have, however, permitted the Secretary of
State, represented by the Attorney General, to intervene and have
considered its brief and oral arguments defending the
constitutionality of these statutes.
¶16 The Secretary of State asserts that any ruling negating
the serial number requirement “threatens the integrity of elections
far beyond this single local referendum” and “would undermine the
ability of the Secretary to ensure the authenticity and validity of
petitions for initiatives and referenda on a statewide level.” The
Secretary’s position stands on the constitutional duty to fulfill the
duties prescribed by the legislature, which include general oversight
of statewide referenda. See Ariz. Const. art. V, § 9; A.R.S.
§§ 19-121.01, 41-121(9). As such, the Secretary’s arguments have the
same force, if not greater, than those advanced by Bower.
¶17 As the Secretary correctly observes, the serial number
requirement has existed for more than sixty years, and we agree it is
a “critical tool for ensuring the fairness and integrity of the initiative
and referendum process.” The Secretary is also correct that the
legislative history emphasizes the importance of the serial number
to the process and refutes Appellants’ contention that it is merely
clerical and meaningless. Individual sheets may become separated
and without such identification, it would be difficult, if not
impossible, to determine with which petition the signatures have
been submitted. Indeed, Bower testified at the hearing about the
importance of this system of identification in “track[ing]” petitions
and “keep[ing] the petitions separate,” particularly in the
circumstances such as here, where multiple petitions were filed on a
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single resolution; and, she processed the two petitions at the same
time. As Bower emphasized during oral argument before this court,
the serial number also serves as notice and assurance to the voters
who sign the petition that it is official and has been procured in
accordance with the statutory requirements for the electoral process.
The requirement “does not unreasonably hinder or restrict the
constitutional provision and . . . reasonably supplements the
constitutional purpose.” Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953;
see also State ex rel. Montgomery v. Mathis, 231 Ariz. 103, ¶¶ 38-39, 290
P.3d 1226, 1238 (App. 2012). It is designed to safeguard and
maintain the integrity of this important constitutional right, not to
inhibit or discourage its exercise.
¶18 That the power of referendum is not utilized often, an
assertion the Secretary of State refutes, or that the referendum
petition Lamonna filed was the first in the Town of Oro Valley in
years and the only one filed in 2014 in connection with the
Resolution, does not render the statute meaningless. Nor does it
dispense with the requirements of the statutes. The Secretary asserts
that without the serial number, the opportunities for fraud are “self-
evident” and there would be no means of assuring accurate
counting of signatures. Moreover, in the context of statewide
referenda, there may be multiple or amended petitions, for which
the serial number requirement would be essential to maintaining the
integrity of the process. As we previously stated, “public policy
favors uniformity in the referral process—uniformity the statutory
framework was intended to provide.” Fidelity Nat. Title Co. v. Town
of Marana, 220 Ariz. 247, ¶ 13, 204 P.3d 1096, 1099 (App. 2009). The
process established by the legislature was not intended to be
implemented differently throughout the state, with less rigorous
adherence required in cities or towns of smaller populations where,
perhaps, fewer petitions are filed.
¶19 Appellants also contend the serial number requirement
is vague and ambiguous. But their argument is based more on the
fact that Lamonna made a mistake. Lamonna admitted she had
made an “error” by using the resolution number rather than the
serial number. She was not confused by Bower, indeed, she
expressly testified she “never claimed that the error was the clerk’s.”
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The testimony and exhibits establish Bower provided Lamonna with
a handbook, which contained instructions for filing an application
and obtaining a serial number. The handbook states in the section
entitled, “Petition Format,” that the serial number had to appear “on
lower right hand corner on front and back of petition.” The
application for a serial number makes clear that the number is the
one issued by the Town clerk, as do the statutes. And consistent
with § 19-101(B), each petition sheet displayed the warning, “It is
unlawful to sign this petition before it has a serial number.” More
importantly, nothing in the plain language of § 19-111 confuses the
official serial number, the number issued by the Town clerk, with
the number that identifies the subject legislation. Even when a
person has received erroneous advice from a governmental official,
it is the responsibility of the person challenging an ordinance,
resolution, or statute “to comply with the statutory requirements for
filing a referendum petition.” Fidelity, 220 Ariz. 247, ¶ 14, 204 P.3d
at 1099.
¶20 Appellants also contend § 19-111 hinders rather than
supplements the constitutional purpose of the referendum. In that
sense, they argue that it unnecessarily burdens them, relying on
Direct Sellers, 109 Ariz. at 5, 503 P.2d at 953. There is no evidence in
the record, however, that the serial number provided by Bower to
Lamonna was hidden or obscured. Instead, this was an unfortunate
mistake for which Appellants attribute no blame to the clerk.
Additionally, it appears to be a very rare occurrence—the parties
were aware of no other case involving a missing serial number.
¶21 Appellants’ final two arguments are interrelated. They
urge us to question the wisdom of requiring strict as opposed to
substantial compliance with respect to referendum petitions. And,
they argue the term “shall” in §§ 19-111(B), 19-121(A)(2), and
19-121.01(A)(1)(c) is directory rather than mandatory.
¶22 Our supreme court repeatedly has imposed a strict
compliance standard on referendum petitions under the Arizona
Constitution and statutes. Feldmeier v. Watson, 211 Ariz. 444, ¶ 12,
123 P.3d 180, 183 (2005); W. Devcor, 168 Ariz. at 429, 814 P.2d at 770;
Cottonwood Dev., 134 Ariz. at 49, 653 P.2d at 697. Applying supreme
court precedent, this court has done so as well. Sklar, 220 Ariz. 449,
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¶ 9, 207 P.3d at 705; Harris, 219 Ariz. 36, ¶ 13, 192 P.3d at 166. In
contrast, Arizona courts follow a rule of “substantial compliance”
with respect to the form of initiative petitions. Feldmeier, 211 Ariz.
44, ¶¶ 14-15, 123 P.3d at 183-84; see also Pedersen, 230 Ariz. 556, ¶ 9,
288 P.3d at 762. The supreme court observed in Direct Sellers:
“The right to suspend, and possibly to
revoke, as given by the referendum . . . is
an extraordinary power which ought not
unreasonably to be restricted or enlarged
by construction. It must be confined within
the reasonable limits fixed by the charter
(statute). The charter (statute) prescribes
what the petition for referendum shall
contain, how it shall be signed, and by
whom it shall be verified. These provisions
are intended to guard the integrity both of
the proceeding and of the petition. Where
a power so great as the suspension of an
ordinance or of a law is vested in a
minority, the safeguards provided by law
against its irregular or fraudulent exercise
should be carefully maintained.”
109 Ariz. at 5-6, 503 P.2d at 953-54, quoting AAD Temple Bldg. Ass’n v.
Duluth, 160 N.W. 682, 684-85 (1916); see also Cottonwood Dev., 134
Ariz. at 48-49, 653 P.2d at 696-97 (reciting same principle and noting
successful referendum undermines majority will by suspending
application of referred statute or ordinance until electorate can vote
at next general election). To the extent Appellants request that we
change the standard to substantial compliance, we are without
authority to do so. See City of Phx. v. Leroy’s Liquors, Inc., 177 Ariz.
375, 378, 868 P.2d 958, 961 (App. 1993) (court of appeals has no
authority to overrule, modify, or disregard our supreme court).
¶23 This standard of strict compliance “requires nearly
perfect compliance with constitutional and statutory referendum
requirements.” Comm. for Pres. of Established Neighborhoods v. Riffel,
213 Ariz. 247, ¶ 6, 141 P.3d 422, 424 (App. 2006). Appellants did not
strictly comply here, and Bower was required by the plain and
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unambiguous terms of the statutes to remove the petition sheets and
process them no further.5
¶24 We also reject Appellants’ argument that the term
“shall” in the relevant statutes is “directory” rather than
“mandatory.” None of the cases they rely on is an election case
involving referendum. See, e.g., Ariz. Downs v. Ariz. Horsemen’s
Found., 130 Ariz. 550, 554-55, 637 P.2d 1053, 1057-58 (1981)
(interpreting term “shall” in A.R.S. § 5-110(A), statute regulating
horse racing, as directory and indicating “desirability, preference, or
permission” after viewing statute “as a whole” to determine its
constitutionality); Forino v. Ariz. Dep’t of Transp., 191 Ariz. 77, 80-81,
952 P.2d 315, 318-19 (App. 1997) (determining time period for
conducting driver’s license suspension hearing before Arizona
Department of Transportation under Arizona’s implied consent
statute directory not mandatory, and failure to hold hearing within
period did not divest agency of jurisdiction absent showing of
prejudice). The plain meaning of “shall,” particularly in this context
is mandatory. Nothing in the statutory scheme, viewed as a whole,
suggests Bower had any choice but to remove petition sheets in
which the serial number she had been required to issue to Lamonna
did not appear on the bottom right of the front and back. Section
19-111(B) provides a serial number “shall [be] assign[ed],” that
number “shall appear in the lower right-hand corner of each side of
each copy thereof,” § 19-101(B) requires each petition sheet to
display a warning that “‘[i]t is unlawful to sign this petition before it
has a serial number,’” a warning the petition sheets did have here,
5 This court has “attempted to harmonize the ‘broad
construction’ legislative directive found in § 19-111 with the existing
case law mandating ‘strict construction.’” Sklar, 220 Ariz. 449, ¶ 11,
207 P.3d at 705-06, citing Lawrence, 199 Ariz. 446, ¶ 3, 18 P.3d at 1247.
In so doing, we demand strict compliance with statutory
requirements but construe broadly the terms used in the statute to
identify the requirement. Id. Section 19-111(B) makes it clear that
the serial number is the one used by the election official and that it is
the number that must appear on both sides of each petition sheet.
There can be no other construction of this unambiguous term.
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and pursuant to § 19-121.01(A)(1)(c), the secretary of state “shall”
remove any sheets that do not bear the serial number.
¶25 Appellants suggest this court’s decision in Harris
supports their argument that the word “shall” is directory. Their
reliance on that case, however, is misplaced. In Harris, we
acknowledged that referenda are subject to a strict compliance
standard. 219 Ariz. 36, ¶ 13, 192 P.3d at 166. But, we noted,
consistent with the strong public policy in this state that favors
facilitating the referendum process, “our courts have held that,
unless the failure to comply strictly with a statutory requirement is
expressly made fatal, that failure ‘does not make the signatures
appearing on the petitions null and void, but merely destroys their
presumption of validity.’” Id. ¶¶ 14, 21, quoting Direct Sellers, 109
Ariz. at 5, 503 P.2d at 953. This court found that although the
presumption of validity had been destroyed by the lack of strict
compliance in two primary respects, it had been restored as to some
of the signatures. Id. ¶¶ 21-22. Section 19-121.01(A)(1)(c), on its face,
and when considered together with related statutes and in light of
the purpose served by the use of a serial number, makes the lack of
compliance fatal; it requires the removal of sheets that do not bear
the serial number. Cf. Israel v. Town of Cave Creek, 196 Ariz. 150, n.7,
993 P.2d 1114, 1119 n.7 (App. 1999) (noting “failure to make a
required organizational listing does not, strictly speaking,
invalidate” application under § 19-111(A) but under “A.R.S.
§ 19-114(B), it invalidates any signatures obtained on referendum
petitions circulated pursuant to an insufficient application”; effect is
same because “it renders an insufficient application a futility”).
¶26 Similarly, in Forszt v. Rodriguez, 212 Ariz. 263, ¶ 11, 130
P.3d 538, 540 (App. 2006), we observed that “failure to strictly
comply with a procedural statutory requirement does not always
necessitate that the referendum petition be declared void” in the
absence of a statute so stating. We concluded that failure to file the
petition sheets with a copy of the subject ordinance attached to each
sheet as required by the statute did not, in the “specific
circumstances” of that case, “compel the trial court to declare the
signatures be declared void,” because it was not disputed the
ordinance had been attached when the sheets were signed. Id.14
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¶¶ 14-15. In Forszt, the petition complied with all statutory
requirements throughout the process; further, the ordinance was
attached to each petition sheet and was not detached until after the
sheets were signed. Id. ¶¶ 15-16. Thus, the trial court had not erred
by finding the presumption of validity, destroyed by the lack of
strict compliance, had been restored. Id. ¶ 15.
¶27 Important to our decision in Forszt, however, was the
fact that we could “conceive of no independent purpose for the
requirement that signatures be filed with the ordinance attached
other than to confirm that they have been so circulated.” Id. ¶ 17. We
noted, in that regard, that Ҥ 19-121.01(A)(1)(b) requires the clerk to
detach any copies of the ordinance from the signature sheets
immediately upon confirming that they were submitted attached—a
provision that suggests the legislature lacked any additional
purpose for requiring that the ordinance be attached when the
petition is filed.” Id.
¶28 Here, however, the presumption of validity with
respect to the petition could not be restored because the petition was
never correct, not from the moment Lamonna obtained it and not at
the time the signatures were obtained. Perhaps more importantly,
there is an independent purpose for requiring each sheet to display
the serial number that was issued by the person charged with
overseeing the election process. As we have made clear, the
requirement is of statewide importance to maintaining the integrity
of the referendum process. It provides notice to the person signing
that it is an official petition, it protects against fraud, and it attempts
to ensure accuracy in the referendum process by demanding, not
suggesting, a systematic, fail-safe means of identifying individual
petition sheets with a specific referendum petition.
Disposition
¶29 We acknowledge that the right of the citizens of this
state to “challenge a government’s legislative actions by referring a
duly enacted measure to the ballot for a vote,” is an important
constitutional right, one that must be respected and safeguarded by
our courts and our legislature. Sklar, 220 Ariz. 449, ¶ 8, 207 P.3d at
705. And as this court has noted before, “[w]e are well aware that
15
ARRETT v. BOWER
Opinion of the Court
. . . seemingly straightforward statutory requirements for pursuing a
referendum are at times mystifying,” even to those directly involved
in the process. Fidelity Nat. Title Co., 220 Ariz. 247, ¶ 15, 204 P.3d at
1100. This case and others like it illustrate “harsh consequences . . .
can occur when the statutory framework is not followed.” Id. ¶ 14.
But the clear, mandatory requirements of § 19-111(B), together with
the related provisions of §§ 19-121(A)(2) and 19-121.01(A)(1)(c),
serves the permissible and important purpose of facilitating and
protecting, not burdening, the referendum process. Failure to follow
strictly the requirements of this provision required the removal of all
defective petition sheets. We, therefore, affirm the trial court’s order
denying Appellants’ request for a writ of mandamus. We disagree,
however, with Bower’s contention that this appeal was frivolous or
brought in bad faith and without substantial justification, and
therefore deny her request for attorney fees pursuant to A.R.S.
§ 12-349 and Rule 25, Ariz. R. Civ. App. P.
16