City of Tucson v. Clear Channel Outdoor, Inc.

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