Hancock v. Bisnar

SUPREME COURT OF ARIZONA
En Banc

JOSEPH E. HANCOCK and CHARLES B. ) Arizona Supreme Court
SHERRILL, JR., ) No. CV-05-0381-AP/EL
)
Appellees, ) Mohave County
) Superior Court
v. ) No. CV2005-1323
)
ANDY BISNAR, KENNETH GRIFFIN and )
LEE MUSICK, )
) O P I N I O N
Appellants. )
)
__________________________________)

Appeal from the Superior Court in Mohave County
The Honorable James E. Chavez, Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS
______________________________________________________________________________

COPPERSMITH GORDON SCHERMER OWENS & NELSON P.L.C. Phoenix
By Andrew S. Gordon
Lauren Jacqueline Weinzweig
Attorneys for Joseph E. Hancock and Charles B. Sherrill, Jr.

GAMMAGE & BURNHAM P.L.C. Phoenix
By Lisa T. Hauser
Michella Abner
Attorneys for Andy Bisnar, Kenneth Griffin, and Lee Musick

ROBERT S. LYNCH & ASSOCIATES Phoenix
By Robert S. Lynch

And

PAUL R. ORME Mayer
Attorneys for Amici Curiae Central Arizona Irrigation and
Drainage District and Maricopa Stanfield Irrigation &
Drainage District
WADE NOBLE Yuma
Attorney for Amici Curiae Wellton-Mohawk Irrigation and
Drainage District, Yuma Irrigation District, and North
Gila Valley Irrigation and Drainage District

RYLEY CARLOCK & APPLEWHITE P.A. Phoenix
By L. William Staudenmaier, III
Attorneys for Amicus Curiae Roosevelt Water
Conservation District

DENNIS M. O’NEILL, CHANDLER CITY ATTORNEY Chandler
By Cynthia J. Haglin, Assistant City Attorney

And

DEBORAH J. SPINNER, MESA CITY ATTORNEY Mesa
By Charles L. Cahoy, Assistant City Attorney
Attorneys for Amici Curiae Cities of Chandler and Mesa
______________________________________________________________________________

H U R W I T Z, Justice

¶1 This is an election contest challenging the

qualifications of three individuals elected as directors of the

Mohave Valley Irrigation and Drainage District (“MVIDD” or

“District”) in a recall election. We hold that the challenged

directors are not qualified to serve under the statutes

governing irrigation districts.

I.

¶2 MVIDD is a political subdivision of the state and a

municipal corporation. See Ariz. Const. art. 13, § 7; Ariz.

Rev. Stat. (“A.R.S.”) § 48-2901 (2005). The District contains

21,648 acres of land, of which 3273 are agricultural. At the

time of the trial in this matter, 563 landowners had registered

to vote in the District, only four of whom were agricultural

2
landowners. Agricultural landowners use eighty-four percent of

the water in the District and a combination of municipal,

industrial, and domestic users consume the remainder. All

landowners in the District are subject to annual assessments of

$1.33 per acre.

¶3 The District is composed of three divisions and is

governed by a board of directors, with one director elected from

each division. A.R.S. § 48-3011(A) (2005). District directors

must be “qualified electors of the division of the district from

which they are elected.” A.R.S. § 48-3011(B). MVIDD elections

are conducted through a “personal and individual” (one elector,

one vote) voting system, see A.R.S. §§ 48-3015 (2005), -3018

(2005), as opposed to a “per acre” voting system, see A.R.S. §§

48-3041 (2005), -3043 (2005).

¶4 A director is subject to recall under the laws

governing recall of county officers, A.R.S. § 16-674 (1996), “by

the vote of a majority of the qualified electors of the division

which he represents,” A.R.S. § 48-3024 (2005). Recall petitions

were filed with respect to the three incumbent directors of

MVIDD, and the District held a recall election on September 13,

2005. Because three other individuals received the most votes,

the incumbent directors were each recalled. The Mohave County

Board of Supervisors approved the canvass of the election on

October 3, 2005.

3
¶5 Four days later, one of the ousted directors and an

elector (“Contestants”) filed this election contest, arguing

that the newly-elected directors (“Electees”) are not eligible

to serve because they do not own agricultural land in the

District and therefore are not qualified electors under the rule

in Post v. Wright, 37 Ariz. 105, 289 P. 979 (1930).1 In

response, the Electees challenged the sufficiency of the

Contestants’ statement of contest and argued that Post was

wrongly decided and should be overruled.

¶6 The superior court rejected the Electees’ challenges

to the statement of contest. On the merits, the court held that

it was bound by Post and that the Electees therefore were not

qualified electors because they are not agricultural landowners.

Because the Electees were not qualified electors, the superior

court held that they were ineligible to serve as directors of

the District. The court ordered “that the incumbent directors

shall remain in office until their successors are appointed and

qualify.”2

1
The Contestants challenged only the qualifications of the
Electees and did not challenge the ballots of the approximately
550 other non-agricultural landowners who voted in the recall
election. Nor had any challenge been raised to signatures of
non-agricultural landowners on the recall petitions.
2
The superior court stayed this order “pending the Supreme
Court’s ruling.”

4
¶7 The Electees timely appealed. We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 12-2101(B) (2003).3

II.

¶8 The Electees argue that the Contestants failed to

plead jurisdictional facts necessary to maintain an election

contest. Because these arguments, if correct, would dispose of

the appeal, we address them first.

A.

¶9 The statutes governing irrigation districts permit

districts to be subdivided into divisions, A.R.S. § 48-2913(B)

(2005), and require that “[d]irectors representing a division

shall be qualified electors of the division . . . from which

they are elected,” A.R.S. § 48-3011(B). The Electees first

assert that the statement of contest and its supporting

3
We have concurrent jurisdiction with the court of appeals
over this case. Ariz. Podiatry Ass’n v. Dir. of Ins., 101 Ariz.
544, 548-49, 422 P.2d 108, 112-13 (1966). We accepted
jurisdiction because the central issue is the continued validity
of this Court’s decision in Post. See State v. Smyers, 207
Ariz. 314, 318 n.4, 86 P.3d 370, 374 n.4 (2004) (“The courts of
this state are bound by the decisions of this court and do not
have the authority to modify or disregard this court’s rulings.
Any other rule would lead to chaos in our judicial system.”)
(internal quotation and citation omitted). In the ordinary
course, appeals in elections contests 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.

5
affidavits are insufficient because they do not allege in which

MVIDD division the Contestants are qualified electors.

¶10 Proceedings to recall the directors of an irrigation

district “shall be in all respects as provided by the

constitution and laws of the state for the recall of county

officers.” A.R.S. § 48-3024. Contests of county elections, in

turn, are made “on the same grounds and in the same manner as

contests of election to a state office.” A.R.S. § 16-674(A).

Section 16-673(A) (1996), which governs the requirements for a

statement of contest for state elections, is thus the relevant

statute.4 Under that provision, a valid statement of contest

requires:

[A] statement in writing setting forth:

1. The name and residence of the party contesting the
election, and that he is an elector of the state and
county in which he resides.

2. The name of the person whose right to the office is
contested, or the title of the measure, or
constitutional amendment, or other proposition as it
appeared upon the official ballot.

3. The office the election to which is contested.

4. The particular grounds of the contest.

A.R.S. § 16-673(A).

4
In addition, A.R.S. § 16-642(B) states that a contest of an
election held by “a special district as defined in title 48,”
the title governing irrigation districts, is to be “as described
in § 16-673.”

6
¶11 Section 16-673(A)(1) requires only an allegation that

the contestant is “an elector of the state and county in which

he resides.” This Court interpreted the predecessor to this

statute in the context of a local election in Kitt v. Holbert,

30 Ariz. 397, 248 P. 25 (1926) (addressing Arizona Code ¶ 3061

(1913)). Kitt involved challenges to the election of two Tucson

city councilmen, and held that under the statute, “the right of

contest of any election is granted to any elector of the

particular political subdivision from which the officer whose

election is contested is chosen.” Id. at 400, 248 P. at 26

(emphasis added); see also Sorenson v. Superior Court, 31 Ariz.

421, 426, 254 P. 230, 231 (1927) (holding that a school district

is a political subdivision of the county for purposes of the

recall statute).

¶12 In the case of an election contest involving an

irrigation district, the “political subdivision from which the

officer whose election is contested is chosen,” Kitt, 30 Ariz.

at 400, 248 P. at 26, is the district, not one of its divisions.

Article 13, Section 7 of the Arizona Constitution establishes a

district – not a division thereof – as a political subdivision

of the state. See also A.R.S. § 48-2901 (providing that the

district – not its divisions – is a municipal corporation). The

Contestants alleged in this case that they were electors of the

District, and that is all the recall statutes require.

7
 B.

¶13 The Electees also argue that the statement of contest

is defective because the “Contestants failed to allege . . .

that they possessed property qualifications for 90 days prior to

the recall election.” They base this argument on A.R.S. § 48-

2917(A), which establishes the qualifications of electors in

irrigation districts. Section 48-2917(A) provides:

No person shall be entitled to vote at any election,
held under the provisions of this chapter unless:

1. He is a holder of title or evidence of title,
including receipts or other evidence of the rights of
entry-men on lands under any law of the United States
or this state, to land in the district, and has
possessed such qualifications for ninety days
immediately preceding the date of such election.

2. He has resided continuously for six months
immediately preceding the election in the county in
which the district or a part thereof is located.

3. He is at least eighteen years of age.

4. He is registered as provided by § 48-3015.

(Emphasis added.)

¶14 This Court addressed this very argument in Schahrer v.

Bell, 34 Ariz. 334, 271 P. 715 (1928). In that case, a

contestant challenged an election of the Verde River Irrigation

and Power District; the statement of contest “fail[ed] to show

that the contestants possessed the [property] qualifications

designated 90 days preceding the election.” Id. at 338, 271 P.

at 716 (citing 1921 Ariz. Sess. Laws, ch. 149, § 1 (codified as

8
amended at A.R.S. § 48-2917). The Court held that “[i]n the

absence of such [an] averment and proof thereof, the contestants

would not be . . . competent to institute or prosecute this

proceeding.” Id. at 339, 271 P. at 716. Electees argue that

Schahrer controls the result here.

¶15 Under the code form of pleading in place at the time

of Schahrer, a party’s complaint was required to “set forth

facts sufficient to state a cause of action.” Greenlee County

v. Cotey, 17 Ariz. 542, 549, 155 P. 302, 305 (1916). Although

code pleading “abandoned technical forms of actions,” it

nonetheless required allegation of “all the material facts

essential to constitute the particular cause of action relied

on.” Id. at 550, 155 P. at 305 (Franklin, J., concurring); see

also Button v. O.S. Stapley Co., 40 Ariz. 79, 87, 9 P.2d 1010,

1012 (1932) (“One of the fundamental principles of common-law

pleading also is that a plaintiff must allege in his complaint

the existence of every fact which it is necessary for him to

prove in order to sustain a judgment.”) (Lockwood, J.,

dissenting).

¶16 More than a decade after the Schahrer opinion,

however, this Court adopted rules of civil procedure. Under

those Rules, a complaint need only provide “[a] short and plain

statement of the grounds upon which the court’s jurisdiction

depends.” Ariz. R. Civ. P. 8(a); see also Guerrero v. Copper

9
Queen Hosp., 112 Ariz. 104, 106-07, 537 P.2d 1329, 1331-32

(1975) (“In testing a complaint for a failure to state a claim,

the question is whether enough is stated which would entitle the

plaintiff to relief upon some theory to be developed at trial.

The purpose of the rule is to avoid technicalities and give the

other party notice of the basis for the claim and its general

nature.”) (citing Mackey v. Spangler, 81 Ariz. 113, 115, 301

P.2d 1026, 1027-28 (1956)).

¶17 Here, the Contestants alleged that each was a

“resident of Mohave County” and “a qualified elector of the

District.” These allegations are sufficient under the notice

pleading requirements of Rule 8(a) to establish the superior

court’s jurisdiction to consider this election contest. By

alleging that they were “qualified elector[s]” of the District,

the Contestants gave sufficient notice that they claimed to meet

all requirements of the statute defining qualified electors,

including the requirement that they possessed title to land for

more than ninety days prior to the election.5

III.

¶18 In Post, this Court analyzed the requirements for

qualified electors of irrigation districts set out in the

5
In their answer to the statement of contest, the Electees
admitted that each of the Contestants was a “qualified elector
somewhere within the District.” There is thus no claim that

10
predecessor statute to A.R.S. § 48-2917. 37 Ariz. at 117-24,

289 P. at 983-85 (addressing 1921 Ariz. Sess. Laws, ch. 149, §§

1, 3). That statute required, in language materially

indistinguishable from that in current § 48-2917(A)(1), that

qualified electors be “‘the holders of title or evidence of

title, including receipts or other evidence of the rights of

entrymen on lands under any law of the United States or of this

state to lands in any district.’” Id. at 120, 289 P. at 984

(citing 1921 Ariz. Sess. Laws, ch. 149, § 1).

¶19 The Court started from the premise that, “taken

literally,” the statutory language would permit all “holders of

title to land in the district” to be electors. Id. Rather than

relying solely on the statutory language, however, the Court

determined that it “should look to the whole irrigation district

law” to determine the qualifications for electors. Id. The

Court noted:

[T]he primary purpose of this law was to permit
landowners to organize an irrigation district to
obtain water for the irrigation of their agricultural
lands, lands of little or no value without water but
which the owners or possessors expect to make very
valuable for the production of crops by the
application thereto of water.

Id. at 120-21, 289 P. at 984. The Court then examined case law

analyzing California’s Wright and Bridgeford Acts, the source of

_______________________________________
Contestants lacked the statutory qualifications to file an
election contest.

11
Arizona’s irrigation district laws. Id. at 121-23, 289 P. at

984-85. Under that case law, persons signing a petition to

organize an irrigation district were required to be “‘bona fide

owners of agricultural land, desiring to improve the same by

conducting water upon it.’” Id. at 123, 289 P. at 985 (quoting

In re Cent. Irrigation Dist., 49 P. 354, 360 (Cal. 1897)).

Given the purpose of the Arizona irrigation district laws and

California’s interpretation of its similar statutes, the Court

concluded that qualified electors also must be agricultural

landowners.

¶20 Under Post, the Electees, who do not own agricultural

land in the District, cannot serve as MVIDD directors. The

Electees therefore ask us to overrule Post, arguing that it “was

wrongly decided because the Supreme Court should not have looked

beyond a statute that was clear on its face to add additional

requirements.”

¶21 The Electees’ statutory interpretation argument has

some appeal. However, we are not writing on a clean slate:

Post was decided more than three-quarters of a century ago.

Thus, we must decide not merely whether we would arrive at the

same result today, but whether we should overrule such long-

standing precedent. Principles of stare decisis counsel against

such a result.

12
¶22 The doctrine of stare decisis “‘is grounded on public

policy that people should know what their rights are as set out

by judicial precedent and having relied on such rights in

conducting their affairs should not have them done away with by

judicial fiat.’” Derendal v. Griffith, 209 Ariz. 416, 424 ¶ 33,

104 P.3d 147, 155 (2005) (quoting White v. Bateman, 89 Ariz.

110, 113, 358 P.2d 712, 713-14 (1961)); see also Galloway v.

Vanderpool, 205 Ariz. 252, 256 ¶ 16, 69 P.3d 23, 27 (2003) (“The

doctrine of stare decisis . . . seeks to promote reliability so

that parties can plan activities knowing what the law is.”).

The strength of that doctrine is at its apex “when prior

decisions construe a statute.” Galloway, 204 Ariz. at 256 ¶ 16,

69 P.3d at 27; see also State v. Hickman, 205 Ariz. 192, 201 ¶

38, 68 P.3d 418, 427 (2003) (noting that “in cases involving

statutory interpretation the burden [required to overrule a

prior decision] is highest”). This is because if we have

“interpret[ed] the statute other than as the legislature

intended, the legislature retains the power to correct us.”

Galloway, 205 Ariz. at 256 ¶ 17, 69 P.3d at 27. Therefore,

[i]t is universally the rule that where a statute
which has been construed by a court of last resort is
reenacted in the same or substantially the same terms,
the legislature is presumed to have placed its
approval on the judicial interpretation given and to
have adopted such construction and made it part of the
reenacted statute.

13
Scheehle v. Justices of the Supreme Court, 211 Ariz. 282, 288 ¶

19, 120 P.3d 1092, 1098 (2005) (quoting State v. Superior Court,

104 Ariz. 440, 442, 454 P.2d 982, 984 (1969)).

¶23 Since Post was decided more than seventy-five years

ago, the legislature has amended A.R.S. § 48-2917 and its

predecessor statutes nine times; none of those amendments

addressed or sought to alter our holding in Post. We therefore

presume that the legislature has relied upon and ratified our

decision. See Galloway, 205 Ariz. at 256 ¶ 17, 69 P.3d at 27

(“If the legislature amends a statute after it has been

judicially construed, but does not modify the statute in a

manner that changes the court’s interpretation, we presume the

legislature approved of the court’s construction and intended

that it remain a part of the statute.”); Cagle v. Butcher, 118

Ariz. 122, 124 n.2, 575 P.2d 321, 323 n.2 (1978) (“Where a

statute that has been construed by a court of last resort is

reenacted in substantially the same terms, the legislature is

presumed to have placed its approval on the judicial

construction and adopted such construction for the reenactment

of the statute.”).

¶24 Our prior cases recognize that “we do not lightly

overrule precedent and do so only for compelling reasons.”

Wiley v. Indus. Comm’n, 174 Ariz. 94, 103, 847 P.2d 595, 604

(1993). The Electees argue that “changes to the irrigation

14
district laws” provide a compelling reason for overruling Post.6

These changes, the Electees assert, have sufficiently changed

the purposes of irrigation districts such that Post should not

be followed.

¶25 Although the powers of irrigation districts have

changed somewhat since 1928, we do not find this a sufficiently

compelling reason to overrule Post. The opinion of the Supreme

Court of the United States in Ball v. James, 451 U.S. 355

(1981), is instructive in this regard. In Ball, the issue was

whether voting in the Salt River Project Agricultural

Improvement and Power District (“SRP”) could constitutionally be

limited to landowners in the district. Id. at 357. After

holding that the “narrow primary purpose,” of SRP, to “store,

conserve, and deliver water for use by [SRP] landowners,” id. at

369, justified restricting the franchise to SRP landowners, the

Court considered whether that purpose had been sufficiently

changed by subsequent events to require a different result.

Although SRP had “become the supplier of electric power for

hundreds of thousands of people in an area including a large

part of metropolitan Phoenix,” id. at 357, the Court nonetheless

6
The Electees point to a 1931 amendment to the irrigation
district statutes granting the power to charge for domestic
water, see 1931 Ariz. Sess. Laws, ch. 98, § 2 (currently
codified at A.R.S. § 48-2978), and to the 1940 adoption of
Article 13, Section 7 of the Arizona Constitution, which

15
held that the district’s original statutory purpose sufficiently

justified restriction of the franchise, id. at 371-72.

¶26 Any increase in the authority of irrigation districts

similarly has not altered their primary purpose. We recently

confirmed that, despite the increased urbanization of Arizona,

the primary purpose of irrigation districts remains to “develop

strong water systems to irrigate arid land.” Hohokam Irrigation

& Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 398 ¶

17, 64 P.3d 836, 840 (2003). Much as the transformation of SRP

from a district devoted almost entirely to agriculture into an

entity that provides electricity to hundreds of thousands of

urban users was insufficient to require an alteration of its

statutory voting scheme, the fact that MVIDD now delivers

substantial amounts of domestic water and power does not change

the nature of the District. Such changes do not “compel” us to

overrule Post. See Wiley, 174 Ariz. at 103, 847 P.2d at 604.

IV.

¶27 Because Post remains the law, the superior court

correctly held that the Electees are not qualified electors

because they admittedly do not own agricultural land. The law

requires that directors of the District “shall be qualified

_______________________________________
established irrigation districts as “political subdivisions of
the State.”

16
electors,” A.R.S. § 48-3011(B), and the Electees therefore

cannot serve as directors of the District.

¶28 After finding that the Electees “are ineligible to

serve as directors of MVIDD,” the superior court ordered that

the “incumbent directors shall remain in office until their

successors are appointed and qualify.” This was error. This

Court has previously held that

it is not possible for an incumbent to be recalled and
at the same time be retained in the office . . . .
Unless he receive[s] the highest number of votes, a
vacancy automatically occurs when his successful
opponent refuses to qualify. The paradox of being
recalled and at the same time elected is not possible
under our Constitution.

Abbey v. Green, 28 Ariz. 53, 70, 235 P. 150, 156 (1925). Thus,

the ousted directors cannot be returned to office and the

superior court should not have so ordered.

¶29 Under the Arizona Constitution, “[i]n the event that

[a] successor shall not qualify within five days . . . the said

office shall be vacant, and may be filled as provided by law.”

Ariz. Const. art. 8, pt. 1, § 4; see also A.R.S. § 19-216(A)

(2002) (“If the incumbent’s successor does not qualify within

five days after the results of the election have been declared,

the office shall be vacant, and may be filled as provided by

law.”). Vacancies in District directorships are governed by

A.R.S. § 48-3011(C), which provides as follows:

17
 If a vacancy occurs in the board of directors . . .
the vacancy shall be filled by appointment made by the
remaining members of the board of directors or, upon
their failure or inability to appoint within thirty
days after the vacancy occurs, upon petition of five
electors of the district the board of supervisors of
the county in which the office of the district is
located shall by appointment fill the vacancy or
vacancies.

¶30 Here, because none of the Electees is qualified to

serve as a director, there are no “remaining members of the

board of directors” available to appoint new directors. A.R.S.

§ 48-3011(C). The parties stipulated at the time of trial that

there were then only four qualified electors, making it

impossible for “five electors of the district” to “petition

. . . the board of supervisors” to fill the vacancies. Id.

Based on the parties’ submissions to this Court, however, it

appears there now may be five or more qualified electors

available to file such a petition, and the vacancies resulting

from the decision below may thus be filled as provided by law.

V.

¶31 For the reasons stated above, we affirm the superior

court’s judgment that the Electees cannot serve as directors of

the MVIDD. We reverse the superior court’s judgment reinstating

the ousted directors and remand with instructions to enter a

judgment declaring the three offices vacant.

_______________________________________
Andrew D. Hurwitz, Justice

18
CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

19