SUPREME COURT OF ARIZONA
En Banc
CITY OF TUCSON, an Arizona ) Arizona Supreme Court
municipal corporation, ) No. CV-04-0033-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CV 02-0183
)
CLEAR CHANNEL OUTDOOR, INC, a ) Pima County
Delaware corporation, ) Superior Court
) No. C-20003722
Defendant/Appellee. )
) O P I N I O N
__________________________________)
Appeal from Pima County Superior Court
The Honorable Charles V. Harrington, Judge
The Honorable Carmine Cornelio, Judge
VACATED AND REMANDED
Opinion of the Court of Appeals, Division Two
206 Ariz. 335, 78 P.3d 1056 (App. 2003)
VACATED
PAUL G. ULRICH, P.C. Phoenix
By: Paul G. Ulrich
and
MICHAEL D. HOUSE, FORMER TUCSON CITY ATTORNEY Tucson
MICHAEL G. RANKIN, TUCSON CITY ATTORNEY
By: Frank William Kern, III
and Dennis P. McLaughlin
Attorneys for Plaintiff/Appellant City of Tucson
MUNGER CHADWICK, P.L.C. Tucson
By: John F. Munger
and Evelyn Patrick Rick
Attorneys for Defendant/Appellee Clear Channel Outdoor, Inc.
ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Tucson
By: Joy E. Herr-Cardillo
Attorney for Amici Curiae
Neighborhood Coalition of Greater Tucson,
The Sierra Club, Grand Canyon Chapter,
Neighborhood Coalition of Greater Phoenix,
N.A.I.L.E.M., and Luz Social Services
H U R W I T Z, Justice
¶1 This case requires us to determine the effect of
Arizona Revised Statutes (“A.R.S.”) § 9-462.02(C) (Supp. 2004)
on numerous zoning enforcement actions filed by the City of
Tucson (“the City”) against Clear Channel Outdoor, Inc. (“Clear
Channel”). We have jurisdiction pursuant to Article 6, Section
5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003).
I.
¶2 This case comes to us as a result of almost twenty
years of legal skirmishing between the City and owners of
advertising billboards. In 1985, the City adopted an ordinance
regulating the size, location, and height of various signs,
including billboards. In 1986, Clear Channel’s predecessor,
Whiteco Metrocom, Inc.,1 sued the City in federal court, alleging
that the ordinance violated Arizona and federal law. The
district court found against Whiteco. The Ninth Circuit
consolidated Whiteco’s appeal with a similar claim filed by
1
Whiteco was acquired by Eller Media Company in 1998. Eller
Media was a division of Clear Channel at the time and later
changed its name to Clear Channel Outdoor, Inc.
2
Outdoor Systems, Inc., against the City of Mesa. See Outdoor
Systems, Inc. v. City of Mesa, 997 F.2d 604, 608-09 (9th Cir.
1993). The Ninth Circuit then certified a question to this
Court, asking whether the Tucson and Mesa codes violated the
Urban Environment Management Act, A.R.S. §§ 9-461 and -462
(1990). We held that they did not. Outdoor Systems, Inc. v.
City of Mesa, 169 Ariz. 301, 819 P.2d 44 (1991). The Ninth
Circuit then upheld Tucson’s sign code against all remaining
challenges. Outdoor Systems, 997 F.2d at 620.
¶3 In 1994, the legislature enacted A.R.S. § 9-462.02
(1994). 1994 Ariz. Sess. Laws, ch. 111, § 1. This statute
effectively “grandfathered” existing non-conforming billboards
by prohibiting municipalities from requiring their owners to
waive the right to continue their use as a precondition for the
issuance of a permit or other municipal approvals. A.R.S. § 9-
462.02(B). The statute also gave municipalities the authority
to condemn non-conforming billboards, A.R.S. § 9-462.02(A), or
to pay for relocation, A.R.S. § 9-462.02(B).
¶4 Before § 9-462.02 became effective, the City sued
Whiteco, seeking the removal of some non-conforming billboards.
In City of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, 983
P.2d 759 (App. 1999), the court of appeals held that § 9-462.02
applied retroactively to prohibit the City from enforcing its
3
ordinance against some, but not all, of the billboards in
question.
¶5 In 2000, the legislature enacted A.R.S. § 9-462.02(C),
2000 Ariz. Sess. Laws, ch. 34, which became effective on July
18, 2000. Section 9-462.02(C) provides:
A municipality must issue a citation and file an
action involving an outdoor advertising use or
structure zoning or sign code violation within two
years after discovering the violation. Such an action
shall initially be filed with a court having
jurisdiction to impose all penalties sought by the
action and that jurisdiction is necessary for
effective filing. Only the superior court has
jurisdiction to order removal, abatement,
reconfiguration or relocation of an outdoor
advertising use or structure. Notwithstanding any
other law, a municipality shall not consider each day
that an outdoor advertising use or structure is
illegally erected, constructed, reconstructed, altered
or maintained as a separate offense unless the
violation constitutes an immediate threat to the
health and safety of the general public.
¶6 On July 17, 2000, one day before the effective date of
A.R.S. § 9-462.02(C), the City filed a 122-count complaint in
superior court, each count challenging a separate non-conforming
Clear Channel billboard. On July 17, 2001, one day less than a
year after the effective date of § 9-462.02(C), the City filed a
second amended complaint, adding fifty-one counts concerning
other billboards. The superior court found that eighty-nine of
the 173 counts involved violations that the City had discovered
more than two years prior to filing. The superior court
dismissed these eighty-nine counts, holding that the new two-
4
year statute of limitations in § 9-462.02(C) barred the claims.2
¶7 The court of appeals affirmed. City of Tucson v.
Clear Channel Outdoor, Inc., 206 Ariz. 335, 78 P.3d 1056 (App.
2003). Relying on A.R.S. § 12-505(B) (2003), the court held
that § 9-462.02(C) applied retroactively and that the new two-
year limitations period ran from the time the City first
discovered the zoning violations. Id. at 338 ¶ 8, 78 P.3d at
1059.
¶8 We granted the City’s petition for review to address
the retroactivity issues in light of A.R.S. § 12-505, which
governs the effect of laws changing statutes of limitations.3
Because this case involves a matter of statutory interpretation,
we apply a de novo standard of review. Canon School Dist. No.
50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503
(1994).
II.
¶9 The court of appeals found no constitutional infirmity
in applying A.R.S. § 9-462.02(C) retroactively to bar the City’s
existing enforcement claims. Clear Channel, 206 Ariz. at 337-38
2
Of the eighty-nine dismissed claims, fifty-five were from
the original complaint and thirty-four from the second amended
complaint.
3
Our order granting review asked the parties to address the
applicability of A.R.S. § 12-505(C) in their supplemental
briefs.
5
¶ 7, 78 P.3d at 1058-59. The court relied on its prior opinion
in Whiteco, which held that a municipality’s power to zone and
to enforce its zoning laws is a purely statutory creation, and
“[e]very right or remedy created solely by a modified statute
disappears or falls with the modified statute unless carried to
final judgment before the repeal or modification.” 194 Ariz. at
394 ¶¶ 9, 12, 983 P.2d at 763 (citations omitted). Neither
party challenges that ruling before this Court. We thus start
from the premise that the legislature could have enacted a
statute stripping all enforcement power from the City with
respect to violations of the sign code occurring before the
effective date of the statute. It necessarily follows that the
legislature could have barred enforcement actions for violations
discovered more than two years before the date of filing suit.
¶10 But, while there is no dispute about the legislature’s
constitutional power to enact a statute barring enforcement
actions filed before the statute’s effective date, the parties
disagree vehemently about whether § 9-462.02(C) is in fact such
a statute. The statute is silent on the issue of retroactivity.
We therefore begin with general principles concerning
retroactivity of statutory enactments.
A.
¶11 ”No statute is retroactive unless expressly declared
therein.” A.R.S. § 1-244 (2002). However,
6
[t]his court has previously created an exception to
the general rule requiring express language of
retroactivity. Enactments that are procedural only,
and do not alter or affect earlier established
substantive rights may be applied retroactively. Even
if a statute does not expressly provide for
retroactivity, it may still be applied if merely
procedural because litigants have no vested right in a
given mode of procedure.
Aranda v. Indus. Comm'n, 198 Ariz. 467, 470 ¶ 11, 11 P.3d 1006,
1009 (2000). Thus, “statutory changes in procedures or remedies
may be applied to proceedings already pending except where the
statute effects or impairs vested rights.” Wilco Aviation v.
Garfield, 123 Ariz. 360, 362, 599 P.2d 813, 815 (App. 1979).4
Arizona courts have traditionally viewed statutes of limitations
as procedural for retroactivity purposes. See, e.g., Harrelson
v. Indus. Comm'n, 144 Ariz. 369, 372, 697 P.2d 1119, 1123 (App.
1984).
¶12 Our inquiry today, however, is not guided solely by
the judge-made exceptions to the general statutory rule about
retroactivity. The legislature has expressly addressed the
retroactivity of newly enacted statutes of limitations in A.R.S.
§ 12-505. That statute, entitled “Effect of statute changing
limitation,” provides as follows:
4
The court of appeals held that retroactive application of
the two-year statute of limitations in § 9-462.02(C) to pending
enforcement actions would not impair any vested rights of the
City. Clear Channel, 206 Ariz. at 337-38 ¶ 7, 78 P.3d at 1058-
59. The City does not now argue otherwise.
7
A. An action barred by pre-existing law is not
revived by amendment of such law enlarging the time in
which such action may be commenced.
B. If an action is not barred by pre-existing law,
the time fixed in an amendment of such law shall
govern the limitation of the action.
C. If an amendment of pre-existing law shortens the
time of limitation fixed in the pre-existing law so
that an action under pre-existing law would be barred
when the amendment takes effect, such action may be
brought within one year from the time the new law
takes effect, and not afterward.
This case requires us to determine the interplay between § 12-
505 and § 9-462.02(C) with respect to the eighty-nine dismissed
counts in the City’s enforcement action against Clear Channel.
B.
¶13 The counts dismissed by the superior court fall into
two categories – those filed before the effective date of § 9-
462.02(C) and those filed within a year after the statute’s
effective date. We analyze these two groups of claims
separately.
¶14 In Arizona, a statute of limitations is tolled when a
suit is commenced. Murphey v. Valenzuela, 95 Ariz. 30, 33, 386
P.2d 78, 80 (1963). A suit is commenced by the filing of a
complaint. Id.; Ariz. R. Civ. P. 3. The parties agree that
prior to the effective date of § 9-462.02(C), the City, a
political subdivision of the State, was exempted from the
application of any statute of limitations. See A.R.S. § 12-510
8
(2003) (providing that “the state shall not be barred by the
limitations of actions prescribed in this chapter”); Tucson
Unified Sch. Dist. v. Owens-Corning Fiberglas Corp., 174 Ariz.
336, 849 P.2d 790 (1993) (holding that political subdivisions of
the state are exempt from statutes of limitations, regardless of
the nature of claim brought). Therefore, it is plain that the
fifty-five counts in the original complaint were timely when
filed.
¶15 The question is thus whether a timely filed action is
barred because the action would have been untimely under a
statute of limitations that became effective after the filing.
The Territorial Supreme Court addressed this very issue in
Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62, 76 P. 612
(1904). At the time the suit in question was commenced, no
statute of limitations governed actions for the recovery of
lands by one claiming title against another holding by peaceable
and adverse possession. Id. at 67, 76 P. at 614. A
subsequently enacted statute provided for a ten-year limitations
period. Id. Curtis held that “an act which merely limited the
time within which an action may be brought does not apply to a
suit which, though commenced after the passage of the act, was
pending at the time the same took effect.” The Court noted that
“[t]he logic of this rule is apparent, particularly when applied
to a case like the one at bar, where the action was begun before
9
the act took effect, and at the time no other statute of
limitations was in force as to such actions.” Id.5
¶16 Curtis states the settled rule: absent an express
legislative statement to the contrary, an act that limits the
time in which an action can be brought does not apply to a suit
pending at the time the act becomes effective. See Vreeland v.
Town of Bergen, 34 N.J.L. 438, 1871 WL 6747 (N.J. 1871); Mass.
Bonding & Ins. Co. v. Bryant, 189 So. 2d 614 (Fla. 1966); People
ex rel. Dep’t of Rev. v. Nat’l Liquors Empire, Inc., 510 N.E.2d
495 (Ill. App. 1987); City of Willmar v. Short-Elliott-
Hendrickson, Inc., 475 N.W.2d 73 (Minn. 1991); cf. State v.
Simmons, 290 N.W.2d 589, 594 (Iowa 1980) (declining to apply
statute imposing statute of limitations on claims to riverbed
ownership to actions pending when the statute was enacted).
¶17 Clear Channel argues that Curtis is distinguishable
because it involved the “vested rights” of a private plaintiff
to bring suit, and any contrary holding would have raised due
process concerns.6 But while Curtis did involve a private
5
Curtis relied in part on paragraphs 2974 and 4243 of the
Code of 1901. These sections were the precursors of today’s
A.R.S. § 12-505(A) (2003) and A.R.S. § 1-250 (2002),
respectively.
6
When vested rights of private parties are involved,
constitutional considerations prevent an amended statute of
limitations from immediately barring a claim that would have
been timely filed under the previously existing statute. Sohn
v. Waterson, 84 U.S. 596, 599 (1873) (“[A] literal
10
plaintiff, the case stands for a broader principle — that
changes in modes of procedure do not invalidate completed
procedural actions valid under the law in effect at the time
they were taken.7 See Cummings v. Rosenberg, 12 Ariz. 327, 328-
29, 100 P. 810, 811 (1909) (citing Curtis for the proposition
that an amended statute of limitations has no application to an
action “brought before it took effect”). Any contrary approach
would wreak havoc on pending cases. For example, if the
legislature enacted a statute mandating personal service of
every complaint which was silent on the issue of retroactivity,
we would surely not apply the statute to invalidate services
that were valid under the law in effect at the time they were
made.
____________________________________
interpretation of the statute would have the effect of
absolutely barring such action at once. It will be presumed
that such was not the intent of the legislature. Such an intent
would be unconstitutional.”). Rather, a “reasonable time” must
be given for a plaintiff to commence the action either before
the bar takes effect or after the effective date of the new
statute. Terry v. Anderson, 95 U.S. 628, 632-33 (1877); 51 Am.
Jur. 2d Limitation of Actions § 45 (2000).
7
Several cases holding that newly enacted statutes of
limitations do not apply retroactively to cases timely filed
before the effective date of the new act involved claims by
public entities, and thus would not seem to rest on the “vested
rights” doctrine. See, e.g., City of Willmar, 475 N.W.2d at 75-
76 (involving suit by city against designer of improvements to
wastewater facility); Nat’l Liquors Empire, 510 N.E.2d at 496
(involving suit by Illinois Department of Revenue for unpaid
sales taxes); Simmons, 290 N.W.2d at 594 (involving state’s
petition concerning ownership of riverbed).
11
¶18 Miami Copper Co. v. State, 17 Ariz. 179, 149 P. 758
(1915), illustrates the rule. That case involved a law
permitting civil cases to be decided upon the concurrence of
nine of twelve jurors in a civil case; prior law had required a
unanimous verdict. Id. at 185, 149 P. at 760. After the
passage of the law, but before its effective date, the superior
court authorized nine jurors to issue a verdict. Although
recognizing that the change in the law was purely procedural and
that “there is no vested right in the modes of procedure,” id.
at 193, 149 P. at 763, this Court nonetheless held that the
procedure in effect at the time the case went to the jury
governed. Id. It therefore reversed the judgment of the
superior court based on a nine-juror verdict, even though the
result would be to remand for a trial in which nine jurors could
issue a verdict under the newly applicable mode of procedure.
Id. at 193, 149 P. at 763.
¶19 Miami Copper thus stands for the same proposition as
Curtis — procedural changes in the law are not retroactive when
the procedure at issue was completed in accordance with the law
then in effect. The legislature can, of course, abrogate
pending causes of action by municipalities and can therefore
also make procedural changes that accomplish the same effect
retroactively. But nothing in § 9-462.02(C) suggests that the
12
legislature intended such a result.8 Indeed, the legislature was
well aware of its powers to terminate pending enforcement
actions; it did so in 1994 in enacting subsections A and B of
the same statute. If the legislature intended to do so in
subsection C, it surely would have chosen a mechanism far more
direct than simply enacting a statute of limitations. See
Bowles v. Ariz. Dep’t of Rev. (In re Estate of O’Connor), 139
Ariz. 450, 453, 679 P.2d 96, 99 (App. 1984) (“The legislature is
perfectly capable of expressing a statutory bar when it so
intends and we will not read such a result into a statute absent
a clear expression.”).
¶20 The remaining question as to the fifty-five claims
filed before the effective date of § 9-462.02(C) is whether the
new statute of limitations was made applicable to them by virtue
of § 12-505(B). No Arizona case has ever read § 12-505(B) as
barring claims filed before the effective date of a new statute
of limitations, and we decline to do so. Cf. Hershey v. Rich
Rosen Constr. Co., 169 Ariz. 110, 115 n.1, 817 P.2d 55, 60 n.1
(App. 1991) (noting in dictum that an amended statute of
limitations cannot apply retroactively to suit filed before the
effective date of the act). The most reasonable reading of each
of the provisions of § 12-505 is that each was meant to apply to
8
As Justice Berch’s concurring and dissenting opinion
demonstrates, the legislature likely had precisely the opposite
intent in enacting § 9-462.02(C).
13
suits filed after the effective date of a new statute of
limitations and to specify what statute of limitations would now
apply. As to claims filed before the effective date of the new
statute, absent an express legislative statement to the
contrary, the law in effect at the time of filing applies.
C.
¶21 The thirty-four claims raised for the first time in
the second amended complaint were filed after § 9-462.02(C)
became effective. Section 12-505 therefore provides the
statutory framework for analysis of the statute of limitations
issue as to these claims.
1.
¶22 The City and Clear Channel agree that § 12-505
controls the disposition of these thirty-four added claims; the
parties disagree, however, both as to whether subsection B or C
of the statute applies and as to the interpretation of these
subsections. Each party contends that § 12-505 was meant to
incorporate the common law; each party therefore relies upon and
argues the construction of various decisions interpreting the
common law and predecessor versions of § 12-505. Analysis of
those arguments thus requires a brief historical review.
¶23 We start with the apt observation of the Territorial
Supreme Court in 1904:
14
Upon few, if any, branches of the law, is there such
contrariety of view expressed by the courts as upon
the effect to be given new statutes of limitation upon
causes of action existing at the time the statutes go
into effect.
Curtis, 9 Ariz. at 65, 76 P. at 613. As Curtis noted, the
“general rule” was that, absent a contrary legislative
expression, new statutes were given only a prospective
application and were not applied to causes of action accruing
before the effective date of the statute. Id.
¶24 Since at least 1901, however, Arizona has had statutes
expressly speaking to this issue. The first was paragraph 2974
of the Civil Code of 1901, which stated:
No one of the provisions of this title shall be so
construed as to revive any claim which is barred by
pre-existing laws; and all claims against which
limitation under said laws had commenced to run shall
be barred by the lapse of time which would have barred
them had those laws continued in force.
Ariz. Civ. Code 1901 ¶ 2974. This provision neatly captured the
general common law rule: causes of action accruing before the
effective date of the new statute were governed by the statute
of limitations in effect at the time of accrual; causes accruing
after the effective date of the new statute were governed by
that new statute. See Crowell v. Davenport, 11 Ariz. 323, 327-
28, 94 P. 1114, 1115 (1908) (holding that suit on a contract
cause of action that had accrued prior to effective date of new
statute was governed by statute in effect at time of accrual).
15
¶25 Paragraph 2974 did not address the situation in which
the legislature chose to apply a new statute of limitations to
causes of action existing before its effective date. In such
cases, the rule was that the plaintiff must be provided a
reasonable period before the new statute takes effect to bring
his action. See Cummings, 12 Ariz. at 329-32, 100 P. at 813
(holding that the time between the passage of a new statute of
limitations and its effective date was an adequate period); Work
v. United Globe Mines, 12 Ariz. 339, 345-46, 100 P. 813, 815
(1909) (same). This rule was based not upon paragraph 2974, but
rather upon the notion that allowing a new legislative enactment
to abrogate an existing cause of action presented constitutional
difficulties. See Cummings, 12 Ariz. at 330, 100 P. at 812; see
also supra note 6. Paragraph 2974 remained essentially
unchanged for nearly thirty years. See Ariz. Civ. Code 1913 ¶
733. The Revised Code of 1928, however, contained a significant
change to this statute. Section 2073 of that Code, entitled
“Amending statute,” provided:
A cause of action barred by pre-existing laws is not
revived by the amendment of such law enlarging the
time; if not so barred, the time fixed in the new law
shall govern such action; if the new law shortens the
time fixed in the pre-existing law, and thereby such
cause would be barred when the new law takes effect,
such cause of action may be brought within one year
from the time the new law takes effect, and not
afterward.
16
Ariz. Rev. Code 1928 § 2073. This provision was carried forward
into the 1939 Code, without substantive change, as § 29-308. In
1956, this statute was re-codified as A.R.S. § 12-505 with just
one substantive change: the three clauses were broken into
subparts A, B, and C. This statute remains in effect today
without change.
¶26 Subsection A of § 12-505 thus incorporates the first
clause of former paragraph 2974. But the 1928 codification and
all subsequent versions do not contain the second clause of
paragraph 2974, which codified the common law rule that, absent
a specific indication of legislative intent to the contrary, new
statutes of limitations do not apply to causes of action
accruing before the effective date of the new statute. Rather,
subsection B provided that the new statute would apply to such
causes of action. Subsection C set forth a qualification to
subsection B: when application of the new statute would result
in barring an existing cause of action, the plaintiff had one
year from the effective date of the new statute to bring suit.
Thus, while subsection C is in part grounded on the common law
rule that a plaintiff must always be given a reasonable time to
bring suit after a new statute of limitations takes effect, it
is also a recognition that another common law rule – that new
statutes of limitations were generally interpreted as
prospective only — no longer applied.
17
¶27 Therefore, the parties’ arguments about how the
holdings in various cases such as Cummings and Crowell apply to
the current situation are largely irrelevant. Those cases
either interpreted paragraph 2974 of the 1901 Code or applied
general rules because paragraph 2974 was silent as to the
situation before them. Our job instead is to apply § 12-505, a
statute markedly different from both paragraph 2974 and the
general rules in effect in the first decade of the twentieth
century.
2.
¶28 Section 12-505(A) provides that “[a]n action barred by
pre-existing law is not revived by amendment of such law
enlarging the time in which such action may be commenced.”
Because the City’s thirty-four causes of action in the second
amended complaint were not barred by the law pre-existing the
enactment of § 9-462.02(C), no party contends that this
subsection applies to this case.
¶29 Subsection B provides that “[i]f an action is not
barred by pre-existing law, the time fixed in an amendment of
such law shall govern the limitation of the action.” The
parties agree that this section applies on its face to this
case, because the City’s thirty-four claims were not barred by
pre-existing law. But the parties offer sharply differing
interpretations of subsection B.
18
¶30 The City claims that subsection B allows it two years
from the effective date of § 9-462.02(C) to bring any causes of
action accruing before that date. This argument relies heavily
on language in Crowell stating that
[t]he rule for the construction of new, re-enacted, or
amended statutes of limitation applied in some
jurisdictions is that, unless a contrary intent be
expressed, they are to be given a prospective effect
so as to extend the period of time within which suits
might be brought on existing causes of action to the
full time prescribed by such statutes counting from
the time they take effect.
11 Ariz. at 326, 94 P. at 1115. Crowell eventually held,
however, that this rule did not apply in Arizona in light of
paragraph 2974, and that causes of action accruing before the
effective date of a new statute were governed by the old statute
of limitations. Id. at 327-28, 94 P. at 1115.
¶31 The City’s argument suffers from another flaw. If
subsection B is construed as the City suggests, subsection C is
completely superfluous — there would never be any case in which
the cause of action is barred by the amended statute, because in
each case the plaintiff would be given the full period of the
new limitations statute, starting from the time that statute
took effect, in order to bring suit. Whenever possible, we do
not interpret statutes in such a manner as to render a clause
superfluous. State v. Deddens, 112 Ariz. 425, 429, 542 P.2d
1124, 1128 (1975).
19
¶32 Clear Channel argues that subsection B does not
preserve the City’s claims because under the new statute of
limitations each claim must be brought within two years from
discovery, and there is no dispute that each of the thirty-four
claims in the second amended complaint was brought more than two
years after discovery. The court of appeals so held. Clear
Channel, 206 Ariz. at 338 ¶ 8, 78 P.3d at 1056. We agree. The
language of § 12-505(B) is “clear on its face,” and must be
“applied according to its plain meaning.” Id.; accord Bilke v.
State, 206 Ariz. 462, 464-65 ¶ 11, 80 P.3d 269, 271-72 (2003).
¶33 We part company with the court of appeals, however, on
its construction of subsection C. That subsection provides that
“[i]f an amendment of pre-existing law shortens the time of
limitation fixed in the pre-existing law so that an action under
pre-existing law would be barred when the amendment takes
effect, such action may be brought within one year from the time
the new law takes effect, and not afterward.” The court of
appeals held that this statute did not apply when “an action is
not barred by pre-existing law,” and that only subsection B
applied in that circumstance. Clear Channel, 206 Ariz. at 338 ¶
8 n.5, 78 P.3d at 1059.9
9
Clear Channel argues that the City cannot rely upon § 12-
505(C) because it “abandoned” that position below. Even
assuming arguendo that the City did so, it is clear that we may
consider this argument. While we generally will not consider
20
¶34 The difficulty with the court of appeals’
interpretation is that it also renders subsection C superfluous.
Subsection A already makes clear that if an action were barred
by pre-existing law, a new or amended statute of limitations
does not serve to avoid the statute of limitations bar. If
subsection B were meant to cover all other situations — those in
which the claims were not barred by pre-existing law —
subsection C would cover no claims at all. We do not construe
statutes as containing useless provisions unless no other
construction is possible. Deddens, 112 Ariz. at 429, 542 P.2d
at 1128; Bilke, 206 Ariz. at 464 ¶ 11, 80 P.3d at 271 (“The
court must give effect to each word of the statute.”).
¶35 There is in this case a more sensible reading of the
statute, and one that gives force to all of its provisions:
____________________________________
arguments not presented below, Barrio v. San Manuel Div. Hosp.
for Magma Copper Co., 143 Ariz. 101, 104, 692 P.2d 280, 283
(1984), this is a rule of prudence, not of jurisdiction. “When
good reason exists, this court may and will entertain such
questions.” Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 406
n.9, 904 P.2d 861, 868 (1995). One such “good reason” is when
the issue is of statewide importance. Hawkins v. Allstate Ins.
Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987); Barrio, 143
Ariz. 101, 692 P.2d at 283.
Review of the subsection C issue is plainly proper here.
First, this is an issue of first impression and of statewide
significance. Second, the court of appeals expressly took up
the issue. Third, in its order granting review, this Court gave
notice of its interest in subsection C and requested
supplemental briefing on the issue. Fourth, because both
parties agree that this case turns on interpretation of § 12-
505, there is no logical reason not to address all applicable
subsections of that statute.
21
subsection C covers those cases in which the cause of action is
not barred by pre-existing law, but when application of the new
statute of limitations would bar the claim. Put differently,
subsection C covers a subset of the cases described in the first
clause of subsection B — actions “not barred by pre-existing
law” — but only those for which application of the new statute
of limitations would bar the action.
¶36 This reading, which is compatible with the plain
language of § 12-505, results in the statute providing a
logical, integrated approach to new statutes of limitations.
Subsection A provides that such a statute does not revive claims
barred by limitations before the effective date of the statute.
Subsection B provides that the new statute will govern claims
not so barred, with one qualification, set forth in subsection
C: if, under subsection B, a claim would be barred by
application of the new statute, the claimant has one year after
the effective date of the new statute to bring suit.
¶37 Clear Channel does not disagree with this general
reading of subsection C. It argues, however, that subsection C
does not apply in this particular case. Clear Channel’s
argument is grounded in the language of the first clause of
subsection C, which makes that statute applicable only when “an
amendment of pre-existing law shortens the time of limitations
fixed in the pre-existing law” (emphasis added). Clear Channel
22
contends that this language excludes the City’s suit from the
coverage of subsection C because, prior to the enactment of § 9-
462.02(C), there was no statute of limitations applicable to the
City’s claims.
¶38 To the extent that Clear Channel’s argument is that
there was no “pre-existing law” governing the time in which the
City’s claims were required to be filed, it fails as a matter of
statutory interpretation. Such an argument presumes that the
“pre-existing law” must be a specific statute of limitations.
But the legislature did not use the term “statute” or “statute
of limitations” in § 12-505(C); it referred in this subsection,
as in the balance of § 12-505, to “pre-existing law.” “Law”
encompasses more than just statutes; it also includes
constitutional provisions, the common law, and judicial
decisions. Wagenseller v. Scottsdale Mem’l Hosp., 147 Ariz.
370, 378, 710 P.2d 1025, 1033 (1985) (recognizing that law
emanates not just from statutes, but also constitutions and
judicial opinions). See Black’s Law Dictionary 889 (7th ed.
1999) (defining “law” as “[t]he aggregate of legislation,
judicial precedents, and accepted legal precedents; the body of
authoritative grounds of judicial and administrative action”).10
10
See State v. Wise, 137 Ariz. 468, 470 n.3, 671 P.2d 909,
911 n.3 (1983) (noting that where contested words were not
defined in the statute, and where there is “no indication that
the Legislature intended that either word be given an
23
While the legislature can, of course, provide a contrary
definition of “law,” nothing in the language of A.R.S. § 12-
505(C) suggests the legislature intended to do so.
¶39 Section 9-462.02(C) thus plainly “shortens the time”
provided by prior law in which the City must bring its claims.
Under the law in effect before the effective date of § 9-
462.02(C), the City could bring those claims whenever it chose.
After the effective date of the new statute, it was required to
bring the claims within two years of discovery of the violation.
¶40 Clear Channel also argues that, because § 12-505(C)
applies only when a statute “shortens the time of limitation
fixed in the pre-existing law,” the subsection cannot apply
here, because there was no specific time of limitation “fixed”
before the effective date of § 9-462.02(C). The argument has
some superficial appeal, but we are required to read a statute
in such a way as to give it a fair and sensible meaning.
Robinson v. Lintz, 101 Ariz. 448, 452, 420 P.2d 923, 927 (1966).
“Fixed” can sensibly be read as synonymous with “provided,” and
pre-existing law here provided express guidance as to the time
in which the City’s claims could be brought: under § 12-510,
____________________________________
extraordinary meaning, reference to an established, widely
respected dictionary for the ordinary meaning of these words is
acceptable”).
24
the City could take as much time as it desired. It cannot be
contested that § 9-462.02(C) “shortens” that time period.11
¶41 In the end, Clear Channel’s argument is really that §
12-505(C) was not meant to apply to claims by governmental
agencies, at least when no statute previously imposed a specific
time limitation on the claims. But nothing in either the
specific language or the history of § 12-505 supports this
hypothesis. Moreover, because Clear Channel agrees that
subsections A and B do apply to claims by governmental agencies,
its interpretation of subsection C requires us to conclude that
the legislature wanted some parts of the statute, but not
others, to apply to governmental claims. Again, such a
conclusion is supported by neither the language of the statute
nor its history.
11
Justice Berch suggests that our interpretation of § 12-
505(C) produces a “counterintuitive” result when this subsection
is applied to certain hypothetical claims involving no pre-
existing statute of limitations. Infra ¶¶ 76-77. However, the
very same “counterintuitive” result occurs when a statutory
amendment alters a pre-existing statute of limitations in these
hypothetical situations. For example, if the legislature
changed the statute of limitations for a particular claim from
ten years to one year, those with nine-year-old claims would
have, under the plain terms of § 12-505(C), one year from the
effective date of the new statute to file suit. Yet, those with
claims that were six months old would have only six months under
§ 12-505(B) to file suit. Thus, our interpretation of § 12-
505(C) produces the same result whenever, in the words of the
subsection, a statutory amendment “shortens the time of
limitation fixed in the pre-existing law so that an action under
pre-existing law would be barred when the amendment takes
effect,” whether or not the “pre-existing law” was a specific
statute of limitations or some other provision of law.
25
¶42 The most logical reading of § 12-505 is one that makes
it applicable to the entire universe of unfiled claims allegedly
affected by new or amended statutes of limitation. Subsection A
provides that claims under which the time to file had already
passed under the old statute remain barred. Subsection B
provides that the new statute generally applies to all other
claims, but an express qualification to the general rule is set
forth in subsection C. If a claim would have been timely filed
under the old law but not the new, under subsection C the
plaintiff has one year from the effective date of the new law to
file suit.
3.
¶43 The effective date of A.R.S. § 9-462.02(C) was July
18, 2000. The thirty-four claims in the amended complaint were
filed on July 17, 2001. If these claims were time-barred on the
effective date of § 9-462.02(C) by the new statute of
limitations, they were timely under § 12-505(C) because they
were filed within one year of the effective date of the new
act.12
12
In a post-argument filing, Clear Channel suggests that some
of the thirty-four claims may not have been barred on the
effective date of § 9-462.02(C) by virtue of the new statute of
limitations because they were discovered less than two years
before the effective date. If this is so, Clear Channel argues,
§ 12-505(B) applies, and any claim eventually filed more than
two years after discovery is time-barred. Given their
dispositions of this case, neither the superior court nor the
26
III.
¶44 For the reasons above, we vacate the opinion of the
court of appeals and the judgment of the superior court
dismissing the City’s claims and awarding attorneys’ fees and
costs to Clear Channel. Because Clear Channel was not the
prevailing party, we deny its request pursuant to A.R.S. § 12-
348 (2003) for attorneys’ fees incurred in this Court.13 This
case is remanded to the superior court for further proceedings
consistent with this opinion.
Andrew D. Hurwitz, Justice
CONCURRING:
_
Charles E. Jones, Chief Justice
______
Ruth V. McGregor, Vice Chief Justice
_
Michael D. Ryan, Justice
____________________________________
court of appeals had occasion to address this argument, which
Clear Channel may raise in the superior court on remand.
13
The City filed a “Motion for Review of Attorneys’ Fees
Award and Motion to Strike and Deny Clear Channel’s Supplement
to Response to Petition for Review.” Because this opinion
vacates the awards of attorneys’ fees below and denies the
attorneys’ fees requested by Clear Channel in its “Supplement to
Response to Petition for Review,” the City’s motion is denied as
moot.
27
B E R C H, concurring in part and dissenting in part
¶45 I agree with my colleagues regarding the continued
validity of the fifty-five dismissed claims filed before the
effective date of A.R.S. § 9-462.02(C), see Op. ¶¶ 14-20, but
disagree regarding the treatment of the second group of claims,
those filed on July 17, 2001. The majority applies A.R.S. § 12-
505(C) to the latter group. I would instead follow the path of
the trial court and court of appeals and analyze the validity of
these claims under § 12-505(B), which requires reference to § 9-
462.02(C).
¶46 This case turns initially on the interpretation of
A.R.S. § 12-505, which specifies the limitations period
applicable to cases for which the legislature has changed the
limitations period during the life of an unfiled claim. All
parties agree, as have the courts, that § A, which discusses
actions barred by pre-existing law, does not apply to this case.
The debate centers on whether the case is controlled by § 12-
505(B) or § 12-505(C).
¶47 Section B provides that “[if] an action is not barred
by pre-existing law, the time fixed in an amendment of such law
shall govern the limitation of the action.” By its terms, it
appears to apply in this case because the City’s right to file
actions to enforce sign ordinances was “not barred by pre-
28
existing law.” See A.R.S. § 12-510 (providing that the state is
not “barred by the limitations of actions prescribed in this
chapter”).
¶48 The majority, however, relies on § C, which applies if
“an amendment of pre-existing law shortens the time of
limitation fixed in the pre-existing law.” A.R.S. § 12-505(C)
(emphasis added). This is the point on which I part company
with the majority. Unlike my colleagues, I agree with the
parties and the judges of the trial court and court of appeals
that no time within which the City had to file its claims was
“fixed in the pre-existing law.”
¶49 As the majority opinion correctly notes, “law” may
refer to other than statutory law. Op. ¶ 38. Yet when the
meaning of a word is unclear, as a guide to its significance, we
look at the statute as a whole and examine how the word is used
in related provisions of the statute. See People’s Choice TV
Corp. v. City of Tempe, 202 Ariz. 401, 403, ¶ 7, 46 P.3d 412,
414 (2002) (interpreting a statute requires construing the
statute as a whole); Golder v. Dep’t of Revenue, 123 Ariz. 260,
265, 599 P.2d 216, 221 (1979) (noting that “words of a statute
must be construed in conjunction with the full text of the
statute”).
¶50 All three sections of § 12-505 refer to “pre-existing
law,” and in all instances, the legislature plainly meant
29
statutory law. Section A, for example, says that “[a]n action
barred by pre-existing law is not revived by amendment of such
law enlarging the time in which such action may be commenced.”
A.R.S. § 12-505(A). The pre-existing law that would bar the
filing of an action is a statute of limitations, not a case.14
This conclusion is bolstered by the legislature’s use of the
word “amendment.” Id.; see also A.R.S. § 1-213 (2002)
(requiring that words be construed according to their common
meaning); State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834
(1990) (same). Statutes are amended; cases are affirmed,
reversed, overruled, or distinguished.
¶51 Section B contains similar language. It provides that
“[i]f an action is not barred by pre-existing law, the time
fixed in an amendment of such law shall govern the limitation of
the action.” A.R.S. § 12-505(B). Here again, the legislature
refers to “amendment.” Id. It seems, then, that the
legislature relied on the common understanding that the “pre-
existing law” that would bar the filing of a case is a statute
of limitations, which could be amended.
¶52 Such an understanding is consistent with the use of
the term in § C. It says that “[i]f an amendment of pre-
existing law shortens the time of limitation fixed in the pre-
14
Note, for example, that defenses such as laches cannot be
raised until a case has been brought. Thus the statute plainly
did not intend such common law notions.
30
existing law so that an action under the pre-existing law would
be barred when the amendment takes effect, such action may be
brought within one year from the time the new law takes effect,
and not afterward.” A.R.S. § 12-505(C). Again the section
speaks of amendments (presumably by the legislature, because
courts do not enact “amendments”) to pre-existing laws
(presumably statutes) that shorten the “time of limitation fixed
in the pre-existing law.”
¶53 When practitioners need to know how long they have to
file an action, they look to the statutes of limitations set
forth in the state’s revised statutes. Thus to find a “time of
limitation fixed in the pre-existing law,” they would look to
the statutes of limitations.
¶54 But in this case the statutes of limitations do not
fix any time within which the City must bring its sign code
violation actions. To the contrary, § 12-510 exempts the state
from the operation of the statutes of limitations. A.R.S. § 12-
510 (2003); see also Maricopa County v. Rodgers, 52 Ariz. 19, 78
P.2d 989 (1938) (holding that statute of limitations does not
apply to political subdivisions for claims to recover public
money); City of Bisbee v. Cochise County, 50 Ariz. 360, 72 P.2d
439 (1937) (holding city not subject to statute of limitations
in action to recover revenue). Therefore, the legislature had
not fixed a “time of limitation . . . in the pre-existing law”
31
that would have precluded the City from bringing the claims at
issue. As a result, the majority’s position that there was a
“time fixed in the pre-existing law” within which the City had
to file billboard violation claims, or be barred thereafter, Op.
¶ 39, fails to give meaning to “every word” and “phrase” of the
statutory provision, as we have been commanded to do, so that
none is rendered superfluous or insignificant. See Bilke v.
State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003);
Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204
Ariz. 394, 398, ¶ 15, 64 P.3d 836, 840 (2003).
¶55 Instead, A.R.S. § 12-505(B) applies if an action is
not barred, the legislature passes an amendment that purports to
shorten the statute of limitations, and the time for filing has
not yet run. That is what happened here. Before the
limitations period expired on the City’s claims, the legislature
passed § 9-462.02(C), which shortened the time of limitations
from an infinite amount of time to within two years of discovery
of a violation. In such cases, § 12-505(B) requires reference
to the amended law, which in this case is § 9-462.02(C).
¶56 As the majority opinion correctly notes, § 9-462.02(C)
was not in effect and therefore did not bar the first set of
claims filed July 17, 2000. Op. ¶ 14. With respect to the
second set of claims filed July 17, 2001, however, the
limitations period in § 9-462.02(C) bars any claims that were
32
filed more than two years after they were discovered.
¶57 This is where this case becomes particularly
problematic. The City urges that while the language of § 9-
462.02(C) requires that claims be filed within two years of the
discovery of a violation, the legislative history reveals that
the legislature did not intend such a result. The City concedes
that the legislature has the power to eliminate the City’s
claims, see City of Bisbee, 50 Ariz. at 369, 72 P.2d at 443, but
argues that the legislative history of § 9-462.02(C) shows the
legislature’s and stakeholders’ clear understanding that the
statute would apply prospectively only and that the City would
be allowed two years from the effective date of the statute to
file its claims. The City urges us to consider the legislative
history because the statute is silent on the issue of
retroactivity.
¶58 The history that exists shows that the language of
A.R.S. § 9-462.02(C) was first offered in House Bill 2671 in the
1999 legislative session, the year before it actually passed.
H.B. 2671, 44th Leg., 1st Reg. Sess. (Ariz. 1999). That bill
contained a clause making the bill retroactive. Id. It did not
pass. In the 2000 legislative session, virtually the same bill
was again offered as H.B. 2559, this time without the
retroactivity clause. H.B. 2559, 44th Leg., 2d Reg. Sess.
(Ariz. 2000). It passed. This legislative history suggests
33
that the legislature did not support the retroactive application
of the statute.
¶59 Additional evidence indicates that at least some
members of the Senate intended H.B. 2559 to apply prospectively
only. In the Senate Finance Committee hearing on March 9, 2000,
Representative Joe Hart, the bill’s sole sponsor, stated that
his bill would not “nullify any existing violations, court
actions, or outstanding disputes. This bill does require filing
of existing known violations within two years of the effective
date of the bill.” Ariz. State Senate Fin. Comm. Hearing on
H.B. 2559, 44th Leg., 2d Reg. Sess. (Ariz. 2000) (Statement of
Rep. Hart).
¶60 At the same committee hearing, Wendy Briggs, the
lobbyist/attorney for the Arizona Outdoor Advertising
Association, testified in support of the bill. She stated, in
reference to potential causes of action in Tucson, that the City
“would have two years from the effective date of this bill to
file those causes of action.” Id. (Statement of Ms. Briggs).
With respect to § 12-505(B), the statute on which the lower
courts decided this case, Ms. Briggs testified as follows:
There is a statute in Title 12, 12-505(B), which
basically says if an action is not barred by
preexisting law and the law is going to be amended,
the amendment governs the limitation of action if it’s
new, which means the effective date, from the
effective date of this legislation they would have two
years to file on those causes of action.
34
Id.
¶61 At that hearing, Tucson Senator George Cunningham
sought to cement Outdoor Advertising’s position that the City
would not be prohibited from going forward with its claims
against the billboard companies. Minutes of Senate Comm. on
Fin., 44th Leg., 2d Reg. Sess., 10 (Mar. 9, 2000). He asked Ms.
Briggs if her client would be willing to amend the bill to
include a savings clause for any pre-existing violations; she
responded that such a clause was unnecessary because of § 12-
505(B). Id. She represented that the billboard industry was
looking only for prospective relief and business certainty. Id.
at 11.
¶62 When the senators on the committee voted on H.B. 2559,
Senator Ken Bennett explained that his aye vote was premised on
his understanding that the section would apply only
prospectively. Id. Senator Bennett’s concern that the statute
apply only prospectively is also evidenced by a letter he
received from the Senate rules attorneys confirming “that HB
2559 would apply prospectively and that a municipality would
have two years from the effective date of this bill to cite
violations pursuant to this section that were discovered by the
municipality before the effective date of this bill.” Letter
from Rules Attorney to Sen. Bennett of 03/15/00 (emphasis
35
added). Senator Bennett also received a letter from Karl Eller,
the Chief Executive Officer of Eller Media Company (the
predecessor to Clear Channel Outdoor, Inc.), affirming Eller
Media’s understanding that the bill could not be applied
retroactively to affect existing litigation. Letter from Mr.
Eller to Sen. Bennett of 03/16/00. Mr. Eller confirmed that
“Eller Media has no intention to use this legislation
retroactively to affect billboard litigation filed by the City
of Tucson.” Id. (emphasis added).
¶63 The Senate Fact Sheet for H.B. 2559 also suggests that
the members of the Senate may have believed that § 9-462.02(C)
would apply prospectively and the City would be permitted to
file claims for two years after the section’s effective date.
Drafted by the Senate staff and supplied to all senators and the
public, the fact sheet states that H.B. 2559 differs from the
previous year’s bill because it does not contain a retroactivity
clause. Ariz. State Senate Fact Sheet for H.B. 2559, 44th Leg.,
2d Reg. Sess., 1 (Ariz. 2000).
¶64 The trial court and court of appeals concluded that
they could not consider the legislative history because § 9-
462.02(C) is clear on its face. Minute Entry, Oct. 18, 2001, C-
20003722, R. 61 at 4 (hereafter “Minute Entry”); City of Tucson
v. Clear Channel Outdoor, Inc., 206 Ariz. 335, 339, ¶ 11, 78
P.3d 1056, 1060 (App. 2003). While I agree that the statute is
36
clear in several respects, it is opaque on the subject of
retroactivity. Because that is the critical issue before us, I
would allow insight into the intent of the legislature on that
issue. See Stephen Breyer, On the Uses of Legislative History
in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 847 (1992)
(defending use of legislative history in interpreting statutes).
¶65 The legislative history surrounding the passage of §
9-462.02(C) differs in quality from that disallowed in the cases
cited by the trial court. Cases such as Golder, 123 Ariz. at
265, 599 P.2d at 221, and Barlow v. Jones, 37 Ariz. 396, 399,
294 P. 1106, 1107 (1930), which disapproved the practice of
allowing mere witnesses before legislative committees or single
members of the legislature to testify as to the legislature’s
intent, are distinguishable. I agree that such evidence does
not necessarily shed light on the intent of the entire body.
But Representative Hart was no mere witness before the
legislature. He was the sole sponsor of H.B. 2559. He spoke to
the committee to explain the purpose of his bill, noting that
the only distinction from the bill rejected the previous year
was the absence of a retroactivity clause. Representative
Hart’s comments were particularly persuasive because the
senators had expressed concern about the retroactive
applicability of the bill, and he spoke directly on that point
to assuage their concerns. He also opined that the City would
37
have two years from the effective date of the statute to file
any other known claims. Statement of Rep. Hart, supra ¶ 59.
¶66 The trial court relied on Hayes v. Continental
Insurance Co., 178 Ariz. 264, 270, 872 P.2d 668, 674 (1994), to
conclude that the statements of non-legislators were
inadmissible to demonstrate legislative intent. Minute Entry,
supra ¶ 64, at 3. The statements at issue in Hayes, however,
were described by the court as either “cryptic” or non-
responsive to the issue before the court. Hayes, 178 Ariz. at
269, 872 P.2d at 673. In that context, the court cautioned
against reliance on non-legislators’ statements “unless the
circumstances provide sufficient guarantees that the statements
reflect legislators’ views.” Id. at 270, 872 P.2d at 674.
¶67 Unlike the cryptic, non-responsive statements in
Hayes, the statements offered by the outdoor advertising
industry’s lobbyist and those by Mr. Eller in his letter to
Senator Bennett directly addressed the senators’ expressed
concerns about the precise matter at issue: the bill’s
potential retroactive application. Their statements were
neither cryptic nor off-topic, but rather served to relieve the
senators’ concerns by assuring that the bill would apply
prospectively only.15 Furthermore, the questions by Senator
15
A careful examination of Mr. Eller’s letter shows that it
should have provided readers little comfort regarding claims not
38
Cunningham and the statement by Senator Bennett in explaining
his aye vote demonstrate that the senate committee members were
singularly focused on the impact of the bill’s language on the
potential and pending actions in the City of Tucson, and thus
the non-legislators’ statements do in fact provide sufficient
guarantees that the statements may shed light on those senators’
views on the very issue of contention in this case. Thus, the
Hayes test is satisfied and Mr. Eller’s letter and Ms. Briggs’
statements should be considered as evidence of the legislative
intent regarding the non-retroactivity of H.B. 2559.
¶68 The trial court relied on Rio Rico Properties, Inc. v.
Santa Cruz County, 172 Ariz. 80, 834 P.2d 166 (1992), to exclude
the Senate Fact Sheet. Minute Entry, supra ¶ 64, at 3. The
situation in Rio Rico, however, was far different. Rio Rico,
172 Ariz. at 90, 834 P.2d at 176. The court in Rio Rico was
concerned about comparing the intent of one legislature with
that of another “a number of years earlier.” Id. That is not
the case here. The same legislature (the Forty-fourth)
considered and rejected H.B. 2671, which contained a
retroactivity clause in 1999, and passed virtually the same
____________________________________
filed before the effective date of § 9-462.02(C). Mr. Eller’s
letter appears to state only that cases filed by the effective
date of § 9-462.02(C) would not be affected by the amendment.
The letter does not state, as the City implies, that Eller
agreed that the City could file claims for two years after § 9-
462.02(C) became effective.
39
bill, without the clause, in 2000. Thus, unlike the situation
in Rio Rico, we have before us the same individual legislators,
the same lobbyist, and the same proposed language. The concerns
confronted by the court in Rio Rico are not present in this
case. The nearness in time makes it appropriate for this court
to consider the Senate Fact Sheet, which highlighted the
difference between H.B. 2671 and H.B. 2559 and indicated the
legislative understanding of the bill’s prospective application.
Cf. State ex rel. Ariz. Dep’t of Revenue v. Capitol Castings,
Inc., 207 Ariz. 445, 449, ¶ 19, 88 P.3d 159, 163 (2004) (citing
legislative fact sheets); State v. Thompson, 204 Ariz. 471, 481,
¶ 39, 65 P.3d 420, 430 (2003) (Ryan, J., concurring in part and
dissenting in part) (same).
¶69 In short, the record reflects an unusually clear
understanding that the Senate Finance Committee, and perhaps the
Senate as a whole, did not intend § 9-462.02(C) to bar the
claims at issue here.
¶70 Despite this relatively clear legislative history, the
language of § 9-462.02(C) seems unequivocal: “A municipality
must issue a citation and file an action involving an outdoor
advertising use or structure or sign code violation within two
years after discovering the violation.” When the language of a
statute is clear, we are to apply it according to its terms
because the language is the “best and most reliable index” of
40
the meaning of the statute. N. Valley Emergency Specialists,
L.L.C. v. Santana, 208 Ariz. 301, 303, ¶ 9, 93 P.3d 501, 503
(2004); State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241,
1243 (2003). Yet we are also exhorted to discern the
legislature’s intent, and give effect to it. See People’s
Choice TV Corp., 202 Ariz. at 403, ¶ 7, 46 P.3d at 414. But
what are we to do when the words and the intent are at odds?
¶71 We recently wrestled with this dilemma in North Valley
Emergency Specialists v. Santana, 208 Ariz. at 303-04, ¶¶ 9-14,
93 P.3d at 503-04. In that case, we were confronted with a
provision of the Arizona Arbitration Act that was clear on its
face, yet appeared to conflict with the legislature’s intent.
Id. We held that we must interpret the statute according to its
plain meaning, unless doing so would lead to “impossible or
absurd results.” Id. at 303, ¶ 9, 93 P.3d at 503 (quoting
Bilke, 206 Ariz. at 464, ¶ 11, 80 P.3d at 271).
¶72 Similarly, in the case now before us, the clear words
of the legislature conflict with the legislative – or at least
the senatorial – intent. The statute’s terms require that
actions to enforce sign code ordinances be filed within two
years from the date of discovery. A.R.S. § 9-462.02(C).
Applying this provision would bar several of the claims the City
filed on July 17, 2001. Yet in 2000, several legislators sought
assurances that the amendment would not “reach back” to
41
jeopardize these claims, and assurances were forthcoming from
the outdoor advertising industry’s lobbyist, the bill’s sponsor,
and the senate rules attorneys that it would not do so.
¶73 Despite the legislative history, I would enforce the
statute according to its terms, for these reasons: First, as
clear as the legislative intent seems to be, it emanates mostly
from the Senate, and even then stems largely from the
proceedings before one committee. We have no indication as to
the intent of members of the House of Representatives, other
than Representative Hart. Second, respecting the legislature’s
role as the state’s chief policymaker, the court must rely on
the truest indicator of the legislature’s intent: the words it
chooses to put in the statute. While the legislative history is
less than clear because of its incompleteness, the words are as
clear and precise as language can be. The statute requires that
a “municipality must . . . file an action involving . . . [a]
sign code violation within two years after discovering the
violation,” A.R.S. § 9-462.02(C), not within two years of the
effective date of the statute.
¶74 Thus, despite the legislative history suggesting that
the legislature intended for these claims to go forward, I would
affirm the result reached by the trial court and court of
appeals – that is, I would enforce the clear terms of the
legislation and require dismissal of those claims filed on July
42
17, 2001, that were discovered more than two years earlier.
¶75 The result is not unfair to the City. It was aware
that H.B. 2559 was under consideration. It had months to file
claims that it had known of for years. Obviously anticipating
the statutory interpretation rendered by the trial court and
court of appeals, it managed to file 122 claims the day before §
9-462.02(C) became effective. That it might lose some of the
thirty-four dismissed claims filed nearly a year after the
effective date of § 9-462.02(C) is simply the result of the
strict application of the statutory terms.
¶76 I have two additional reasons for deciding this case
under § B rather than § C. First, interpreting § C as the
majority has done produces one result that is counterintuitive,
although probably not impossible or absurd. See N. Valley, 208
Ariz. at 303, ¶ 9, 93 P.3d at 503 (cautioning against statutory
interpretations that lead to “impossible or absurd results”).
Applying § C in a case such as this, where there was no “time
fixed in the pre-existing law,” yields the potential of reviving
very old claims. That is, applying § C’s one-year grace period
gives a municipality one year to salvage claims that were
discovered ten or twenty years earlier – or even more – because
those old claims would be “barred when the amendment [§ 9-
462.02(C)] takes effect,” having been discovered more than two
years before the effective date of § 9-462.02(C). A.R.S. § 12-
43
505(C). Section 12-505(C) would then permit the City to file
those claims “within one year from the time the new law takes
effect.”16 Id.
¶77 If § B is applied – because the statute has not run on
such cases and no time period was “fixed in the pre-existing
law” – the City would have only a short time to file previously
discovered claims or it would lose them. For example, a claim
discovered twenty-two months before the effective date of § 9-
462.02(C) would have to be filed within two months, or it would
be lost. See A.R.S. § 12-505(B). I can imagine no policy that
is fostered by allowing an additional year to file claims
discovered thirty-six or forty-eight months before the effective
date of the amendment while allowing only two months to file a
claim discovered twenty-two months before the effective date.
That anomalous result would not occur if § B were applied when
there was no prior limitations period “fixed in the pre-existing
law,” because the forced application of the amendment, § 9-
462.02(C), provides a limitation that would preclude reviving
very old claims. Section C could then properly be applied only
in situations in which there was an existing limitations period
16
Although we do not know whether such old claims were filed,
the possibility demonstrates the inappropriateness of applying §
C in the absence of a “time of limitation fixed in the pre-
existing law.” Proper application of § 12-505(B) in such cases
would prevent the filing of such stale claims.
44
“fixed in the pre-existing law.”17
¶78 Applying § B when there is no previous statute of
limitations, as § 12-505 requires, also has the salutary effect
of giving meaning to the phrase “time of limitation fixed in the
pre-existing law,” rather than rendering it surplussage. This
result seems sensible and serves the public policy of providing
business certainty. In effect, the legislature has given the
City a firm date within which to file claims, while cutting off
the outdoor advertising industry’s exposure in perpetuity to
“dangling” or unresolved claims.
¶79 The second and final reason for declining to resort
initially to § 12-505(C) to govern this case is that neither
party argued that legal theory until directed by this court to
do so. While we must rule correctly on the law, arguments and
theories not raised by the parties generally are deemed waived.
See State v. Gortarez, 141 Ariz. 254, 262, 686 P.2d 1224, 1232
(1984). It is not our practice to suggest arguments for the
parties.
¶80 In the end, I concur in the result regarding the bulk
of the claims, those filed on July 17, 2000, but dissent
17
Appropriately applying § 12-505(B) does not, as the
majority suggests, deprive § 12-505(C) of meaning. See Op. ¶¶
31, 34. That section alone applies to those cases in which an
amendment shortens the “time of limitations fixed in the pre-
existing law” so as to bar an action that would otherwise have
existed.
45
regarding the result as to those filed after the effective date
of A.R.S. § 9-462.02(C). As to those claims, I would affirm the
opinion of the court of appeals.
__________________________________
Rebecca White Berch, Justice
46
City of Tucson v. Clear Channel Outdoor, Inc.
Court: Arizona Supreme Court
Date filed: 2005-02-10
Citations: 209 Ariz. 544, 105 P.3d 1163
Copy CitationsCombined Opinion