SUPREME COURT OF ARIZONA
En Banc
CHRIS FLEISCHMAN, a registered ) Arizona Supreme Court
voter in the City of Phoenix, ) No. CV-06-0333-AP/EL
KATHY ROEDIGER, a registered )
voter in the City of Phoenix, ) Maricopa County
ALFREDO GUTIERREZ, a registered ) Superior Court
voter in the City of Phoenix, ) No. CV 2006-013116
)
Plaintiffs/Appellees, )
)
v. ) O P I N I O N
)
PROTECT OUR CITY, a political )
organization, )
)
Defendant/Appellant, )
)
MARIO PANIAGUA, in his official )
capacity as City Clerk of the )
City of Phoenix; HELEN PURCELL, )
in her official capacity as )
Recorder of Maricopa County, )
Arizona; KAREN OSBORNE, in her )
official capacity as Director of )
Elections of Maricopa County, )
Arizona; and DON STAPLEY, FULTON )
BROCK, ANDREW KUNASEK, MAX )
WILSON and MARY ROSE WILCOX, in )
their official capacities as )
Members of the Board of )
Supervisors of Maricopa County, )
Arizona; MAYOR PHIL GORDON, in )
his official capacity as Mayor )
of the City of Phoenix; DAVE )
SIEBERT, PEGGY NEELY, PEGGY )
BILSTEN, TOM SIMPLOT, CLAUDE )
MATTOX, GREG STANTON, DOUG )
LINGNER and MICHAEL JOHNSON, in )
their official capacities as )
Members of the City Council of )
the City of Phoenix )
)
Defendants. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Janet E. Barton, Judge
AFFIRMED
________________________________________________________________
PERKINS COIE BROWN & BAIN P.A. Phoenix
By Charles A. Blanchard
Rhonda L. Barnes
Colin P. Ahler
And
ALTSHULER, BERZON, NUSSBAUM, RUBIN & DEMAIN San Francisco, CA
By Stephen P. Berzon
Danielle E. Leonard
And
ROUSH, MCCRACKEN, GUERRERO, MILLER & ORTEGA Phoenix
By Daniel R. Ortega, Jr.
Attorneys for Chris Fleischman, Kathy Roediger,
and Alfredo Gutierrez
AHWATUKEE LEGAL OFFICE Phoenix
By David L. Abney
Attorneys for Protect Our City
GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix
By Larry F. Felix, Assistant City Attorney
Attorneys for Amicus Curiae City of Phoenix
________________________________________________________________
B A L E S, Justice
¶1 The legislature has directed, as a matter of general
law, that once petition signature sheets are filed in support of
a ballot measure, “no additional petition sheets may be accepted
for filing.” Ariz. Rev. Stat. (“A.R.S.”) § 19-121(B) (2002).
Consistent with this mandate, we hold that municipal laws that
allow the filing of supplemental signatures in support of local
ballot measures are invalid. This opinion explains the reasons
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for our order dated January 12, 2007, which affirmed the
superior court’s judgment barring an initiative from appearing
on the ballot for a City of Phoenix election.
FACTS AND PROCEDURAL BACKGROUND
¶2 Protect Our City (“POC”) proposed a City of Phoenix
initiative measure concerning the enforcement of federal
immigration laws. On July 6, 2006, POC filed initiative
petition sheets containing 21,297 signatures with the City
Clerk. The initiative required 14,844 valid signatures to
qualify for placement on the ballot. See Ariz. Const. art. 4,
pt. 1, § 1(8) (signatures from fifteen percent of the qualified
electors of the city are needed to propose an initiative); see
also A.R.S. § 19-143(A) (2002) (number of signatures from
qualified electors is calculated based on number of votes cast
at last preceding election for mayor or city council). The City
Clerk determined that only 14,160 of the signatures submitted
were valid and therefore issued a certificate of insufficiency.
¶3 POC then submitted 1,275 supplemental signatures
pursuant to chapter XV, section 3(D) of the Phoenix City Charter
(“Charter”) and section 12-1102(a)(2) of the Phoenix City Code
(“Code”). These municipal provisions authorize a one-time
supplementation of signatures if the City Clerk deems an
initiative petition insufficient for lack of valid signatures.
Charter ch. XV, § 3(D); Code § 12-1102(a)(2). The supplemental
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signatures must be filed within ten days of the filing of the
certificate of insufficiency. Charter ch. XV, § 3(D); Code §
12-1102(a)(2).
¶4 After determining that enough of the supplemental
signatures were valid, the City Clerk certified the initiative
for the ballot. Fleischman, Roediger, and Gutierrez (the
“challengers”) then brought an action in superior court pursuant
to A.R.S. § 19-121.03(B) (2002) challenging the Clerk’s
certification.
¶5 The superior court concluded that the City Charter and
Code provisions conflict with A.R.S. § 19-121(B) and are invalid
insofar as they allow the filing of supplemental signatures.
Because POC lacked sufficient signatures without its
supplemental filing, the superior court ruled that the
initiative could not appear on the ballot.
¶6 POC timely appealed to this Court. We have
jurisdiction pursuant to Article 6, Section 5(3), of the Arizona
Constitution and A.R.S. § 19-121.03(B).
DISCUSSION
A. Jurisdiction
¶7 We invited the parties to address whether this Court’s
jurisdiction over this appeal is exclusive or concurrent with
that of the court of appeals. When jurisdiction is concurrent
and an appeal is initially filed with this Court, our long-
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established practice has been to transfer the case to the court
of appeals. Perini Land & Dev. Co. v. Pima County, 170 Ariz.
380, 382, 825 P.2d 1, 3 (1992); Ariz. Podiatry Ass’n v. Dir. of
Ins., 101 Ariz. 544, 549, 422 P.2d 108, 113 (1966). In election
matters, when there is concurrent appellate jurisdiction, “[i]n
the ordinary course, appeals . . . should be to the court of
appeals. If special circumstances exist that require that this
Court hear the appeal directly, a motion for transfer may be
filed under ARCAP 19.” Hancock v. Bisnar, 212 Ariz. 344, 346
n.3 ¶ 7, 132 P.3d 283, 285 n.3 (2006).
¶8 Section 19-121.03(B) provides that in actions
challenging the certification of signatures for a ballot measure
“[e]ither party may appeal to the supreme court within ten
calendar days after judgment.” Another statute, however, more
generally affords appellate jurisdiction to the court of appeals
“in all actions and proceedings originating in or permitted by
law to be appealed from the superior court, except criminal
actions involving crimes for which a sentence of death has
actually been imposed.” A.R.S. § 12-120.21(A)(1) (2003); see
also id. § 12-2101(B) (2003) (allowing appeals to court of
appeals from final judgments entered in superior court). Thus,
the issue is whether § 19-121.03(B) gives this Court
jurisdiction exclusive of that which otherwise exists in the
court of appeals under its general jurisdictional statutes.
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¶9 We dealt with a similar issue in Perini. There we
held that this Court and the court of appeals have concurrent
jurisdiction over referendum appeals under A.R.S. § 19-122(C).
170 Ariz. at 382, 825 P.2d at 3. In actions challenging the
legal sufficiency of ballot measures, § 19-122(C), which has not
been amended since 1992, provides that “[e]ither party may
appeal to the supreme court within ten days after judgment.” We
held that this language, which predated the creation of the
court of appeals in 1964, did not give this Court exclusive
jurisdiction, “[i]n light of the broad appellate jurisdiction
vested in the court of appeals.” Perini, 170 Ariz. at 382, 825
P.2d at 3 (citing Ariz. Podiatry, 101 Ariz. at 547, 422 P.2d at
111). Absent any expressed intent to give this Court exclusive
jurisdiction, we did not interpret the statutes vesting
appellate jurisdiction in this Court as limiting the
jurisdiction that A.R.S. §§ 12-120.21(A)(1) and -2101 separately
vest in the court of appeals. See id.
¶10 This case involves A.R.S. § 19-121.03(B), which
addresses challenges to the certification of ballot measure
petition signatures. Much like the statute involved in Perini,
it provides that “[e]ither party may appeal [the superior
court’s decision] to the supreme court within ten calendar days
after judgment.” Id. Section 19-121.03(B), however, was
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enacted after the legislature created the court of appeals.1
Nonetheless, as in Perini, the constitutional and statutory
grants of jurisdiction indicate that this Court and the court of
appeals have concurrent appellate jurisdiction. See 170 Ariz.
at 382, 825 P.2d at 3; see also Ariz. Podiatry, 101 Ariz. at
547, 422 P.2d at 111.
¶11 As we explained in Arizona Podiatry, “[i]t has long
been a general rule of law that a grant of jurisdiction to one
court does not, in the absence of an express provision to that
effect, imply that the jurisdiction is to be exclusively vested
in that court.” 101 Ariz. at 548, 422 P.2d at 112. Thus,
unless the legislature has made clear that our jurisdiction is
exclusive, our appellate jurisdiction is concurrent with that of
the court of appeals.
¶12 There are very few instances in which this Court has
been granted exclusive jurisdiction. The first is over “causes
between counties.” Ariz. Const. art. 6, § 5(2) (providing for
“original and exclusive jurisdiction” in this Court over such
matters). We also have exclusive jurisdiction over death
penalty appeals, as A.R.S. § 12-120.21(A)(1) specifically
exempts those cases from the jurisdiction of the court of
1
The language found in § 19-121.03(B) was first enacted in
1970 as § 19-121.04(B). 1970 Ariz. Sess. Laws, ch. 152, § 8.
It was renumbered to § 19-121.03(B) in 1973. 1973 Ariz. Sess.
Laws, ch. 159, § 7.
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appeals. Finally, in the context of candidate nomination
petition challenges, the legislature has specifically provided
that the superior court’s decision “shall be appealable only to
the supreme court.” A.R.S. § 16-351(A) (2006) (emphasis added).
Because § 19-121.03(B) does not similarly provide an express
grant of exclusive jurisdiction to this Court, we do not infer
one. See Ariz. Podiatry, 101 Ariz. at 548, 422 P.2d at 112.
¶13 Consequently, we hold that we have concurrent
jurisdiction with the court of appeals over appeals taken under
§ 19-121.03(B). We further reiterate the rule set forth in
Perini that “[a]lthough we have concurrent jurisdiction with the
court of appeals[,] . . . a party should file any future action
[pursuant to § 19-121.03(B)] in the court of appeals.” 170
Ariz. at 382, 825 P.2d at 3.
¶14 Under the particular circumstances of this case,
however, we will exercise our jurisdiction to decide this
appeal. Each side urges us to do so, and we have not previously
held that our jurisdiction over this type of appeal is
concurrent rather than exclusive. It is also important that the
parties obtain a timely determination whether the proposed
initiative will be on the ballot for the next city election.
Finally, this case presents an issue of general importance
because at least one other city allows the supplementation of
petition signatures after a determination of insufficiency. See
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Tucson City Code § 12-59.
B. Merits
¶15 The merits of this appeal turn on whether the Charter
and the Code conflict with A.R.S. § 19-121(B). If a conflict
does exist, the municipal provisions are invalid. Ariz. Const.
art. 4, pt. 1, § 1(8); see Union Transportes de Nogales v. City
of Nogales, 195 Ariz. 166, 171 ¶ 21, 985 P.2d 1025, 1030 (1999).
¶16 The power of initiative and referendum is reserved by
the Arizona Constitution to the qualified electors of cities,
towns, and counties. Ariz. Const. art. 4, pt. 1, § 1(8). The
Constitution allows localities to “prescribe the manner of
exercising said powers,” as long as they do so “within the
restrictions of general laws.” Id. Title 19 of the Arizona
Revised Statutes sets forth the statutory guidelines for
initiative and referendum procedures, and § 19-141 (2002)
specifically addresses these procedures for cities, towns, and
counties.
¶17 Before 1991, § 19-141(A) authorized cities and towns
to establish their own ballot measure procedures, provided they
were “less restrictive on the right to initiative or referendum”
than state laws. In the absence of local provisions, Title 19
would apply. Id. In 1991, the legislature amended the statute
to establish certain uniform procedures. 1991 Ariz. Sess. Laws,
3d Spec. Sess., ch. 1, § 21. The amended § 19-141(A) reads:
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“The provisions of this chapter shall apply to the legislation
of cities, towns and counties, except as specifically provided
to the contrary in this article.” Thus, unless Title 19
specifically permits a city to depart from the general laws, the
city has no power to do so.
¶18 The local provisions at issue are chapter XV, section
3(D) of the Phoenix Charter, and § 12-1102(a)(2) of the Phoenix
City Code. The Charter provides: “Any initiative petition
certified insufficient for lack of the number of signatures
required by the constitution may be amended once by filing a
supplementary petition within ten days of the filing of the
certificate of insufficiency.” Likewise, the Code states:
“Within ten days after the filing of the certificate of
insufficiency additional signatures properly verified may be
filed, but no further supplementation thereafter shall be
permitted.”
¶19 The relevant state law, A.R.S. § 19-121, sets forth
the procedure for filing statewide initiative and referendum
petitions. It provides, in pertinent part: “For purposes of
this chapter, a petition is filed when the petition sheets are
tendered to the secretary of state, at which time a receipt is
immediately issued . . . . After the issuance of the receipt, no
additional petition sheets may be accepted for filing.” Id. §
19-121(B) (emphasis added) (footnote omitted). This provision
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applies to local ballot measures pursuant to § 19-141(A), which
also directs that the duties required of the secretary of state
for statewide elections shall instead be performed “by the city
or town clerk” for municipal elections.
¶20 The Charter and the Code provisions directly conflict
with § 19-121(B). While the state statute expressly prohibits
the filing of additional petition sheets following the issuance
of the receipt, the Charter and the Code allow the
supplementation of signatures under certain circumstances.
Therefore, unless Title 19 specifically authorizes cities to
establish their own procedures in this area, these local
provisions are invalid.
¶21 POC argues that such authorization comes from § 19-
141(D). This section provides:
The procedure with respect to municipal and county
legislation shall be as nearly as practicable the same
as the procedure relating to initiative and referendum
provided for the state at large, except the procedure
for verifying signatures on initiative or referendum
petitions may be established by a city or town by
charter or ordinance.
Id. (emphasis added). The Charter and the Code provisions, POC
contends, constitute part of the local signature verification
process, and thus no conflict exists.
¶22 POC urges us to impart a meaning to § 19-141(D) that
its language does not support. Both state and city laws
distinguish between the filing of petition signature sheets and
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the procedures for verifying submitted signatures. Under state
law, A.R.S. § 19-121 outlines the procedure for filing signature
sheets. “[A] petition is filed when the petition sheets are
tendered” to the filing officer, a receipt is then issued
“immediately,” and thereafter “no additional petition sheets may
be accepted for filing.” Id. § 19-121(B). The process for
verifying submitted signatures, in contrast, is separately
governed by A.R.S. §§ 19-121.01, -121.02, and -121.04 (2002),
which provide that filed signature sheets will be verified by
the relevant county recorder.
¶23 Consistent with A.R.S. § 19-141(D), Phoenix has opted
to have the City Clerk, rather than the county recorder, verify
signatures on petition sheets. The City’s procedure for
verifying signatures appears in City Code § 12-1108. If the
verification process indicates that insufficient signatures have
been submitted, the Clerk issues a “certificate of
insufficiency” and the ballot measure proponent is then allowed
additional time in which “additional signatures properly
verified may be filed.” Id. § 12-1102(a)(2) (emphasis added).
Thus, the City Code also distinguishes the filing of signature
sheets from the procedure for verifying the signatures.
¶24 The legislature has directed that the general laws
governing the procedures for ballot measures shall apply to
municipalities and counties “except as specifically provided to
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the contrary” in state law. A.R.S. § 19-141(A). The general
laws bar the filing of additional petition sheets after the
initial filing. Id. § 19-121(B). The legislature has not
authorized municipalities to accept supplemental signatures by
authorizing cities and towns to establish the “procedure for
verifying signatures” for ballot measures, § 19-141(D). Such a
procedure contravenes § 19-121(B).
¶25 We therefore hold that chapter XV, section 3(D) of the
Phoenix City Charter and § 12-1102(a)(2) of the Phoenix City
Code conflict with A.R.S § 19-121(B). The city provisions are
invalid insofar as they allow the filing of supplemental
signatures after the initial filing of a ballot measure
petition.
¶26 The challengers request an award against the City of
their attorneys’ fees on appeal pursuant to A.R.S. § 12-2030(A)
(2003). This statute directs the award of fees in favor of
private parties who prevail in actions to compel public officers
to perform duties imposed upon them by law. We deny the
request for fees because this appeal involves a challenge under
A.R.S. § 19-121.03(B) to the City Clerk’s completed
certification rather than a mandamus action under A.R.S. § 19-
121.03(A) to compel the Clerk to perform a certification.
CONCLUSION
¶27 For the foregoing reasons, we affirm the judgment of
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the superior court enjoining the placement of the initiative on
the ballot.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
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