Voice of Surprise v. Skip Hall

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

VOICE OF SURPRISE, ET AL.,
Plaintiffs/Appellants,

v.

SKIP HALL, ET AL.,
Defendants/Appellees.

No. CV-23-0117-PR
Filed August 14, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Scott A. Blaney, Judge
No. CV2022-013360

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
529 P.3d 1212 (Ariz. App. 2023)

VACATED

COUNSEL:

Timothy A. La Sota, Timothy A. La Sota, PLC, Phoenix, Jennifer J. Wright
(argued), Jennifer Wright Esq., PLC, Phoenix, Attorneys for Voice of
Surprise and Quintus Schulzke

Robert Wingo, Ellen Van Riper (argued), Melinda Bird, City of Surprise
City Attorney’s Office, Surprise, Attorneys for Hall, Duffy, Judd, Winters
Jr., Cline, Hastings, Remley, Aguilar and City of Surprise

Cameron C. Artigue (argued), Gammage & Burnham, P.L.C., Phoenix,
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Opinion of the Court

Attorneys for Dominium, Inc.

Jeffrey D. Gross, Berry Riddell, LLC, Scottsdale, Attorneys for Truman
Ranch 46 SWC LLC

Nancy L. Davidson, League of Arizona Cities and Towns, Phoenix,
Attorneys for Amicus Curiae League of Arizona Cities and Towns

Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix,
Attorneys for Amicus Curiae Arizona Center for Law in the Public Interest

Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for
Amici Curiae Arizona Free Enterprise Club and Center for Arizona Policy
Action

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in
which CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, LOPEZ,
BEENE, MONTGOMERY, and KING joined.

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 This is a referendum matter concerning a city ordinance.
The proponent failed to include the text of the to-be-referred ordinance
within its application for a petition serial number, as required by A.R.S.
§ 19-111(A). The question here is whether that error only affected a
presumption of signature validity that could be reinstated by showing that
the City Clerk knew what measure was being referred and that the
ordinance was attached to the subsequently circulated petition sheets. If
the answer is “no,” we must decide whether the City Clerk was authorized
to reject all circulated, signed petition sheets due to this application error.

¶2 We conclude that the presumption of signature validity does
not apply to an application error, and therefore the error cannot be cured
by showing that the City Clerk and petition signers knew what ordinance
was being referred. But we also decide that the City Clerk could only
exercise the authority expressly granted by the constitution and the election

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statutes, and nothing authorized her to reject petition sheets due to an
application error.
BACKGROUND

¶3 On August 16, 2022, the City Council for the City of Surprise
passed Ordinance 2022-18 (“Ordinance 18”), which approved a preliminary
development plan for a large area of property that Dominium, Inc. and
Truman Ranch 46 SWC LLC (collectively, “Developers”) want to develop.
Ordinance 18 would take effect thirty days later unless referred to the ballot
for a vote by the people. See A.R.S. § 19-142(A) (“The petition shall be filed
with the city or town clerk within thirty days after passage of the ordinance,
resolution or franchise.”).

¶4 Plaintiff Voice of Surprise (“VOS”), a political action
committee, sought to refer Ordinance 18 to the ballot. To succeed, VOS
was required to gather 3,114 signatures on petition sheets before the thirty-
day expiration. This target number represents ten percent of the electorate
who voted in the previous election at which a mayor or council members
were chosen. See Ariz. Const. art. 4, pt. 1, § 1(8); A.R.S. § 19-142(A).

¶5 VOS initiated its effort on August 29 by filing both an
application for a petition serial number and a statement of organization
with the City Clerk for the City of Surprise. See § 19-111(A). But the
application did not set forth the text of Ordinance 18, as required by
§ 19-111(A). Although the City Clerk realized the error, she accepted the
application without comment and issued a serial number for placement on
petition sheets that VOS subsequently circulated for signatures.

¶6 VOS returned to the City Clerk’s Office on September 16 and
submitted petition sheets bearing 5,432 signatures supporting referral of
Ordinance 18 to the ballot. There is no dispute that VOS properly attached
Ordinance 18 to petition sheets so people signing the petition sheets could
review it. See A.R.S. § 19-112(B) (requiring attachment). Thereafter,
Dominium urged the City Clerk to reject the petitions for multiple reasons,
including VOS’s failure to attach Ordinance 18 to the application for a
petition serial number. On October 5, the City Clerk rejected all the
petition sheets and signatures based solely on this application error.

¶7 VOS and its chairman, who we refer to collectively as “VOS,”
initiated this action by filing a complaint against the City Clerk, other City
of Surprise officials (collectively, the “City”), and the Developers pursuant

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to A.R.S. § 19-122(A). VOS asked the superior court to compel the City
Clerk to accept the petition sheets and signatures and process them in
accordance with A.R.S. § 19-121.01 to determine whether enough valid
signatures support placing the referendum on the ballot. See A.R.S.
§ 19-141(A) (applying A.R.S. §§ 19-101 to -161 to referenda concerning
municipal legislation).

¶8 After holding an evidentiary hearing on VOS’s application for
preliminary and permanent injunctive relief, the court denied VOS’s
request and entered judgment for all defendants. The court reasoned that
because VOS was required to strictly comply with the statutory
requirements directing the referendum process, see A.R.S. § 19-101.01, its
failure to file an application that strictly complied with § 19-111(A) was fatal
to the referendum effort. The court of appeals affirmed. See Voice of
Surprise v. Skip Hall, 529 P.3d 1212, 1218 ¶ 26 (Ariz. App. 2023).

¶9 We granted review of VOS’s petition for review to decide
whether the City Clerk properly rejected the petition sheets and all
signatures based solely on the application error. To expedite matters, we
previously entered a decision order resolving the matter, and we stated that
a more fully explanatory opinion would follow. This is that opinion, and
it replaces the decision order.

DISCUSSION

I. The restorable presumption of signature validity does
not apply to errors in the application for a petition serial
number.

¶10 VOS does not dispute it failed to strictly comply with
§ 19-111(A) by omitting Ordinance 18’s language from the application for a
petition serial number, but it argues this was not a fatal flaw. Specifically,
VOS asserts that the error only destroyed a restorable legal presumption
that the gathered signatures were valid. VOS contends it restored that
presumption by showing that § 19-111(A)’s objective was nevertheless
satisfied because the City Clerk possessed a copy of Ordinance 18 at the
time VOS filed the application, and VOS attached a copy of Ordinance 18
to each petition sheet for the signers’ review. VOS asserts that the superior
court therefore erred by not ordering the City Clerk to process the petition
sheets.

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¶11 We review the superior court’s judgment denying injunctive
relief for an abuse of discretion. See Molera v. Hobbs, 250 Ariz. 13, 26 ¶ 49
(2020); Arrett v. Bower, 237 Ariz. 74, 77 ¶ 7 (App. 2015). An abuse of
discretion occurs when a court commits a legal error by misinterpreting or
misapplying the law. See Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255,
259 ¶ 13 (2022) (“An error of law constitutes an abuse of discretion.”
(quoting State v. Bernstein, 237 Ariz. 226, 228 ¶ 9 (2015))). We review the
interpretation and application of statutes de novo as issues of law. See
Jessie D. v. Dep’t of Child Safety, 251 Ariz. 574, 580 ¶ 10 (2021).

¶12 This Court first addressed the presumption of signature
validity in Whitman v. Moore, 59 Ariz. 211, 216 (1942), overruled in part on
other grounds by Renck v. Superior Court, 66 Ariz. 320, 327 (1947), which
concerned a challenge that enough qualified signatures supported placing
an initiative on the ballot. Id. Because deciding how petition signatures
should be qualified was “of considerable importance” and the case would
guide “future cases involving the sufficiency of initiative, referendum,
recall and, perhaps, nomination petitions,” the Court discussed the
presumption at length. See id. at 217–18.

¶13 The Court began by emphasizing that most constitutional
convention delegates and the ratifying public considered the constitution’s
initiative and referendum provisions “among the most important to be
found therein.” Id. at 218. Consequently, the Court concluded:

[W]hen there is any doubt as to the requirements of the
constitution going only to the form and manner in which the
power of an initiative [and necessarily the other direct-
democracy powers] should be exercised, every reasonable
intendment is in favor of a liberal construction of those
requirements and the effect of a failure to comply therewith,
unless the constitution expressly and explicitly makes any
departure therefrom fatal.
Id. at 220. The Court recognized that “technical restrictive constructions”
of laws governing the initiative process would recast the initiative power
as “naught but an empty shell.” Id. at 221 (quoting In re Initiative Petition
No. 23, State Question No. 38, 127 P. 862, 866 (Okla. 1912)).

¶14 This background underlies the Whitman Court’s recognition
of “[t]he presumption . . . that petitions which are circulated, signed, and
filed are valid.” Id. (quoting In re Initiative Petition No. 23, 127 P. at 866);
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see also id. at 225. The Court reasoned that people signing petitions are
“members of the largest legislative body in the state,” and when signing
petitions, they act in “a public or at least a quasi[-]public capacity,” meaning
“the law presumes the validity and legality of their acts” until proven
otherwise. Id. at 221–22 (quoting In re Initiative Petition No. 23, 127 P.
at 866). Thus, when a petition or an accompanying circulator’s affidavit
deviates from constitutional requirements directing the form and contents
of petitions and circulator verifications that assist in ascertaining that
signers are qualified electors—for example, listing the signer’s residence
and date of signing, or stating the circulator’s belief in an affidavit that the
signer was a qualified elector—the deviation “destroy[s] the presumption
of validity,” but the proponent may reinstate that presumption by
otherwise showing that “the signer was qualified in all respects.” Id.
at 225. The Court thereafter reviewed challenges to classes of signatures
and ultimately upheld placement of the initiative on the ballot. See id.
at 226–33.

¶15 After Whitman, courts have consistently applied the
presumption of validity to circulated, signed, and filed petitions that
technically deviated from constitutional or statutory requirements, and,
unless expressly prohibited from doing so, permitted their reinstatement
through independent proof that the signatures had been collected in the
required manner and were valid. See, e.g., Jenkins v. Hale, 218 Ariz. 561,
562 ¶ 8 (2008) (nominating petitions); Miller v. Bd. of Supervisors of Pinal
Cnty., 175 Ariz. 296, 301 (1993) (nominating petitions); W. Devcor, Inc. v. City
of Scottsdale, 168 Ariz. 426, 429–31 (1991) (referendum petitions); Save Our
Pub. Lands Coal. v. Stover, 135 Ariz. 461, 463 (1983) (initiative petitions);
Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5 (1972) (referendum petitions);
Bd. of Supervisors of Maricopa Cnty. v. Superior Court, 103 Ariz. 502, 504 (1968)
(nominating petitions); Harris v. City of Bisbee, 219 Ariz. 36, 40 ¶ 14 (App.
2008) (referendum petitions); Forszt v. Rodriquez, 212 Ariz. 263, 265–66 ¶ 11
(App. 2006) (referendum petitions).

¶16 In 1989, the legislature recognized and approved Whitman’s
presumption-reinstatement model. In explaining the purpose of
amendments to the initiative and referendum statutes, the legislature stated
that initiative and referendum requirements should be “broadly construed”
and declared that “the effect of a failure to comply with these requirements
shall not destroy the presumption of validity of citizens’ signatures,
petitions or the initiated or referred measure, unless the ordinance, charter,

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statute or constitution expressly and explicitly makes [fatal any] departure
from the terms of the law.” 1989 Ariz. Sess. Laws ch. 10, § 1 (1st Reg. Sess.).

¶17 The parties disagree whether Whitman, its progeny, and the
legislature’s declaration in 1989 remain viable after enactment of
§ 19-101.01 in 2015 to require strict compliance with the initiative and
referendum statutes. See 2015 Ariz. Sess. Laws ch. 285, § 1 (1st Reg. Sess.).
Assuming they remain viable, the parties also disagree whether the
presumption of validity can be reinstated after expiration of the time for
referring a measure to the ballot. We do not address these arguments,
however, because even assuming that the presumption-reinstatement
model remains viable in some situations, it does not apply to application
errors.

¶18 The presumption-reinstatement model applies only when
statutory errors occur during the signature-gathering process and concern
requirements that assist interested persons in ascertaining whether petition
signers were qualified electors. See Whitman, 59 Ariz. at 221 (“The
presumption is that petitions which are circulated, signed, and filed are
valid.” (quoting In re Initiative Petition No. 23, 127 P. at 866)); id. at 225 (“The
ultimate substantive question obviously is whether the signer is in all
respects a qualified elector, and all the requirements in regard to residence,
date of signing, verification and the like are to assist interested parties to
ascertain this fact.”).

¶19 For example, in Western Devcor, circulator affidavits did not
state the circulators’ belief that the signatories were qualified electors, as
constitutionally required. 168 Ariz. at 431. And in Direct Sellers, the
circulators’ affidavits attached to signed petitions failed to state that the
circulators were qualified electors as statutorily required. 109 Ariz. at 5.
The constitutional and statutory requirements for the circulator affidavits
demonstrated the validity of the petition signatures, so deviation from
these requirements invalidated the presumed validity of those signatures.
See W. Devcor, 168 Ariz. at 431; Direct Sellers, 109 Ariz. at 5; see also Whitman,
59 Ariz. at 225. The presumption-reinstatement model permitted
restoration of that presumed validity if the referendum proponents could
provide independent proof that the objectives underlying the constitutional
or statutory requirements were otherwise met, specifically, that the
circulators believed the petition signers were qualified electors (Western
Devcor), or that the circulators were in fact qualified electors (Direct Sellers).

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¶20 But there is no challenge presently that petition signatures
were improperly gathered by petition circulators and are therefore invalid.
And § 19-111(A)’s requirement that the challenged measure’s text be
included within the application for a petition serial number does not assist
in determining whether petition signers were qualified electors. That is
not § 19-111(A)’s objective. Instead, including the challenged measure’s
text in the application notifies the public, including city officials and people
interested in mounting their own referral effort, about what precisely is
being challenged. Notification is particularly needed because the law
permits the entirety or parts of a measure to be referred. See Ariz. Free
Enter. Club v. Hobbs, 253 Ariz. 478, 480 ¶ 1 (2022) (addressing a referendum
petition referring only two sections of a Senate bill). Public notification
permits officials to plan for a potential delay in implementing some or all
of the measure and allows people and entities other than the proponent to
decide whether they should initiate a referral effort. Failing to fulfill this
notification requirement does not cast doubt on the validity of later-
gathered petition signatures. Thus, the presumed validity of VOS’s
petition signatures was not lost due to the application error, and so there
was nothing to reinstate.

¶21 Applying the presumption-restatement model here would
also make § 19-111(A)’s text-inclusion requirement superfluous, a
circumstance we generally avoid. See Nicaise v. Sundaram, 245 Ariz. 566,
568 ¶ 11 (2019) (“A cardinal principle of statutory interpretation is to give
meaning, if possible, to every word and provision so that no word or
provision is rendered superfluous.”). VOS argues it reinstated the
presumption, and therefore cured the application error, by showing that
the City Clerk and the petition signers actually knew that Ordinance 18 was
being challenged. Other statutes, however, explicitly require actions to
ensure that knowledge. See § 19-112(B) (requiring a proponent to attach a
copy of the challenged measure to referendum petitions); § 19-142(C)
(directing the clerk to provide the proponent a copy of the challenged
measure when an application is filed). Concluding that compliance with
§ 19-111(A) can be excused by complying with §§ 19-112(B) and 19-142(C)
would make § 19-111(A)’s requirement meaningless.

¶22 In short, § 19-111(A) mandates compliance with the
application requirements before the clerk issues a petition serial number.
That did not occur here, making VOS’s application non-compliant from the
start and incapable of correction after submission of the signed petition
sheets on the thirtieth day after the City Council passed Ordinance 18. See

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Arrett, 237 Ariz. at 82 ¶ 28 (stating that petition sheets lacking the statutorily
required serial number “could not be restored because the petition was
never correct, not from the moment [the proponent] obtained it and not at
the time the signatures were obtained”); see also Direct Sellers, 109 Ariz. at 5
(disagreeing that referendum proponents could “amend their petitions to
comply with the verification provision” outside the time permitted for
initiating the referendum effort because doing so would unreasonably
delay the effective date of the referred law).

¶23 We cannot excuse VOS’s omission as a harmless error on the
ground that neither the City Clerk nor individual petition signers were
confused about which ordinance was the subject of the proposed
referendum. The City Clerk and petition signers’ knowledge does not
fulfill § 19-111(A)’s objectives because city officials and the public at large
remained in the dark about what precisely was being challenged. See
supra ¶ 21. Excusing VOS’s non-compliance would mean advancing a
referendum effort that only substantially complied with statutory
requirements in violation of the legislative directive for strict compliance.
See § 19-101.01. Notably, VOS does not argue that requiring strict
compliance with § 19-111(A)’s mandate to include the text of a challenged
ordinance within the application as well as within the petition sheets
unreasonably hindered or restricted VOS’s constitutional right of
referendum, making that provision unconstitutional in its application. See
Stanwitz v. Reagan, 245 Ariz. 344, 348 ¶ 14 (2018) (stating that a statute that
regulates the referendum process is permissible if it “‘does not
unreasonably hinder or restrict the constitutional provision and if the
[statute] reasonably supplements the constitutional purpose’ of the
provision” (alteration in original) (quoting Direct Sellers, 109 Ariz. at 5)).
We therefore do not address the constitutionality of applying § 19-111(A)
in these circumstances to disqualify the referendum effort.

¶24 We also disagree with VOS that its reliance on the City Clerk’s
acceptance of the application excused strict compliance with § 19-111(A).
The Clerk performs a ministerial role in accepting applications and issuing
petition serial numbers. She must accept and process any filled-in
application submitted on the statutorily required form without regard to its
legal sufficiency. § 19-111(A); see also § 19-101.01 (finding and
determining “that strict compliance with the . . . statutory
requirements . . . in the application and enforcement of [the statutory
requirements for the referendum process] provides the surest method for
safeguarding the integrity and accuracy of the referendum process”).

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Section 19-111(A) only directs the Clerk to reject an application if it is
unaccompanied by the applicant’s statement of organization. That did not
occur here. Consequently, the Clerk had no discretion to reject the
application but was required to accept it and issue a serial number. Doing
so did not cure VOS’s non-compliance with § 19-111(A).

¶25 The City Clerk also had no obligation to tell VOS it had
mistakenly omitted the text of Ordinance 18 from the application. Section
19-111(B) formerly authorized city clerks to “advise the person who has
submitted the petition with a written statement of any defects of which [the
city clerk] is aware, but the [city clerk] shall not refuse to assign a number
to the petition.” 1991 Ariz. Sess. Laws ch. 1, § 7 (3d Spec. Sess.). But the
legislature amended the statute in 1991 to remove that provision. Id. The
elimination of the Clerk’s discretion to point out defects forecloses VOS’s
argument that she had an obligation to do so.

¶26 In sum, VOS failed to strictly comply with § 19-111(A). Even
assuming the presumption-reinstatement model remains viable for
statutory defects after enactment of § 19-101.01, the presumption does not
apply to an application error. Consequently, showing that the City Clerk
knew that VOS was challenging Ordinance 18 and that the petition
signatures were gathered in compliance with other statutes after VOS filed
the application and received its serial number cannot cure VOS’s
application error.

II. The City Clerk is not authorized to reject petition
sheets based on an application defect.

¶27 Having determined that VOS did not strictly comply with
§ 19-111(A) when filing its application for a serial number and could not
correct that error through its offered evidence, we must decide whether the
City Clerk was authorized to reject the circulated and signed petition sheets
on this basis. The City argues that § 19-101.01, entitled “[l]egislative
findings and intent,” authorizes the City Clerk to apply and enforce all
constitutional provisions and election statutes governing the referendum
process, including § 19-111(A). Notably, this position conflicts with the
City’s position that the City Clerk lacks any authority to reject an
application when a proponent fails to comply with § 19-111(A).
Regardless, we disagree with the City’s broad view of the Clerk’s authority.

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¶28 Section 19-101.01’s plain language defeats the City’s
argument:

The legislature recognizes that a referendum may overrule
the results of determinations made by representatives of the
people and therefore finds and determines that strict
compliance with the constitutional and statutory
requirements for the referendum process and in the
application and enforcement of those requirements
provides the surest method for safeguarding the integrity
and accuracy of the referendum process. Therefore, the
legislature finds and declares its intent that the constitutional
and statutory requirements for the referendum be strictly
construed and that persons using the referendum process
strictly comply with those constitutional and statutory
requirements.

(Emphasis added). The City relies on the highlighted language for
authority. Conspicuously, however, § 19-101.01 does not itself authorize
any particular person or entity to apply and enforce statutory requirements
for referenda. Instead, it reflects the legislature’s finding and
determination that those authorized by the constitution or other statutes to
apply and enforce requirements should do so strictly. 1

1 Section 19-101.01 also requires courts to strictly apply constitutional
requirements for the form and manner of referenda. This conflicts with
Whitman and a host of other cases. See, e.g., Kromko v. Superior Court,
168 Ariz. 51, 57–58 (1991); Feldmeier v. Watson, 211 Ariz. 444, 447 ¶ 13 (2005).
It is debatable under separation-of-powers principles whether the
legislature can direct how courts apply our constitution. See State ex rel.
Brnovich v. City of Tucson, 242 Ariz. 588, 595 ¶ 25 (2017) (noting “this Court
is authorized and obligated . . . ‘to say what the law is’” (quoting Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))); Forty-Seventh Legislature v.
Napolitano, 213 Ariz. 482, 485 ¶ 8 (2006) (“Although each branch of
government must apply and uphold the constitution, our courts bear
ultimate responsibility for interpreting its provisions.”). Nevertheless,
because the challenge here is to VOS’s compliance with § 19-111(A) and not
a constitutional provision, we reserve that issue for another day.

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¶29 Considering examples is helpful to understanding
§ 19-101.01’s application. For instance, because § 19-111(A) requires the
City Clerk to reject applications when a statement of organization is not
filed “[a]t the same time,” the Clerk must strictly apply and enforce
§ 19-111(A) by rejecting an application if the statement of organization was
filed the previous day. She cannot forgive the error, and other persons
could sue to challenge any lapse. See § 19-122(C). In contrast, because no
statute permits the Clerk to reject an application on other bases, she must
strictly apply and enforce the election statutes by accepting an application,
even if it violates § 19-111(A)’s other requirements. See supra ¶ 24. If the
City or others wish to challenge the proponent’s compliance with § 19-
111(A), it must file suit to do so. See § 19-122(C).

¶30 We look to our constitution and other statutes to determine
whether the City Clerk was authorized to enforce § 19-111(A) by rejecting
VOS’s circulated and signed petition sheets. Our constitution provides
several requirements directing the form and content of a referendum
petition. See Ariz. Const. art. 4, pt. 1, § 1(9). It also directs the Secretary
(and the City Clerk, by extension) to only place a referendum on the ballot
when it complies with these requirements. See id. § 1(10). None of these
requirements concerns an application for a petition, so the constitution does
not authorize the City Clerk to reject a petition for failing to comply with
§ 19-111(A).

¶31 Likewise, no statutory provision authorizes the City Clerk’s
actions here. Sections 19-101(E), 19-114(B), and 19-121 through 19-121.04
direct with exacting detail how the Clerk must process petition sheets,
count the signatures, and determine whether enough signatures support
the referendum. For instance, within twenty days of receiving a
referendum petition, the Clerk must remove petition sheets not containing
a circulator’s completed, signed, and unmodified affidavit.
§ 19-121.01(A)(1)(d). She also must determine whether a circulator was
properly registered at the time of circulation and, if not, she must disqualify
that circulator’s petition sheets. § 19-121.01(A)(1)(h). But nothing
authorizes the Clerk to determine whether the application for a serial
number was legally sufficient and, if not, to reject all petition sheets and
signatures. See Leach v. Reagan, 245 Ariz. 430, 436 ¶ 23 (2018) (“Relatedly,
nothing in Title 19 authorizes or requires the Secretary to disqualify petition
sheets or signatures if the statement of organization, or any amendments to
it, did not comply with § 16-906. In contrast, elsewhere in Title 19, the

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legislature has explicitly stated the Secretary’s obligation to investigate the
accuracy of initiative-related filings.”).

¶32 The City expresses concern that confining the City Clerk’s
authority to explicit statutory grants of authority will lead to “a chaotic and
haphazard enforcement of referenda law.” Specifically, it asserts that
requiring statutory authorization calls into question whether a municipal
clerk may, absent statutory authority, reject petitions that attempt to refer a
non-legislative measure to the ballot—the basis for many challenges. See,
e.g., Wennerstrom v. City of Mesa, 169 Ariz. 485, 487 (1991). The City also
predicts that limiting the City Clerk’s authority to its statutory authority
will make enforcement of referendum requirements entirely dependent on
private parties’ fortuitous ability and willingness to file suit under
§ 19-122(C) to stop a referendum. It argues that this circumstance is
precisely what the legislature intended to avoid by finding that strict
compliance with constitutional and statutory referendum requirements is
necessary to safeguard the process. See § 19-101.01.

¶33 The City’s concerns are largely misplaced. The constitution
directs the City Clerk to refrain from placing a referendum on the ballot if
the petition fails to comply with the constitution. See Ariz. Const. art. 4,
pt. 1, § 1(10). The constitutional provisions governing referenda are self-
executing, meaning the Clerk does not need statutory authority to enforce
those provisions. See id. § 1(16); Crozier v. Frohmiller, 65 Ariz. 296, 298–99
(1947) (holding that because the referendum provisions are self-executing,
the Secretary of State may expend state funds to perform his referendum
duties when the legislature fails to appropriate sufficient funds).
Significantly, the constitution requires that the referred measure be a
legislative act rather than an executive or administrative act. See Ariz.
Const. art. 4, pt. 1, § 1(8); Wennerstrom, 169 Ariz. at 488 (concluding that
“only the [City] Council’s legislative actions were subject to referendum”).
Other constitutional requirements concern the form and contents of
referendum petitions. See Ariz. Const. art. 4, pt. 1, § 1(9). Consequently,
the City Clerk’s ability to reject a petition that attempts to refer an
administrative matter or that lacks the form and contents required by the
constitution is unaffected by our decision.

¶34 Also, the legislature has authorized the City Clerk to reject
petitions on multiple bases, see §§ 19-101(E); 19-114(B); 19-121 through
19-121.04, even though she is not authorized to reject petitions for some
violations, like VOS’s failure to strictly comply with § 19-111(A)’s

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application requirements or a proponent’s error in its statement of
organization. See Leach, 245 Ariz. at 436 ¶ 23. But if the Clerk wishes to
challenge petitions for such violations, she can do so by filing a lawsuit.
See § 19-122(C) (authorizing “[a]ny person” to contest the validity of a
referendum). And private parties, like the Developers here, have been
zealous in challenging referenda. The City’s fear that our holding will
create an enforcement void is overstated. Regardless, if the City seeks
additional enforcement authority for its Clerk, it must do so before the
legislature, not the Court.

¶35 In sum, neither the constitution nor our statutes authorized
the City Clerk to reject VOS’s circulated and signed petition sheets because
the application for a serial number was deficient. The City Clerk was
required to strictly apply and enforce the referendum statutes, which
confined her authority to processing the petition sheets as statutorily
prescribed. See § 19-101.01.

III. Remand is necessary to permit VOS to raise
previously unavailable defenses to the § 19-111(A)
challenge and to adjudicate any alternate challenges.

¶36 The City Clerk’s lack of authority to reject the petition sheets
and signatures for the application error does not end this matter.
Defendant Dominium filed a counterclaim challenging the referendum
petitions on multiple bases, including that the application failed to strictly
comply with § 19-111(A). VOS did not answer the counterclaim or assert
equitable defenses, but the time for doing so had not expired before the
superior court entered its ruling on the request for a preliminary and
permanent injunction. As VOS notes, it could not legally assert a laches
defense against the City defendants. See Mohave County v. Mohave-
Kingman Ests., Inc., 120 Ariz. 417, 421 (1978) (“In general, equitable
defenses . . . will not lie against the state, its agencies or subdivisions in
matters affecting governmental or sovereign functions.”). But VOS can
assert equitable defenses against Dominium, and it should be given that
opportunity on remand.

¶37 To summarize, we have decided that VOS did not strictly
comply with § 19-111(A), and that error cannot be undone. All parties
have had ample opportunity to be heard on that issue, and the superior
court is bound by our decision. We remand to permit VOS to file an
answer to the counterclaim and raise any applicable equitable defenses

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 VOICE ET AL. V. H ALL ET AL.
Opinion of the Court

against Dominium. By doing so, we take no position on the merits of any
such defenses.

¶38 Also, our decision does not preclude any defendants from
challenging the petition on alternate bases, including that the matter is
seeking to refer a non-referable administrative or executive matter. We
likewise take no position on the merits of such assertions.

¶39 Finally, we deny VOS’s request for attorney fees pursuant to
A.R.S. §§ 12-348(A)(4) and 12-2030(A). Each provision authorizes fees for
a party who “prevails by an adjudication on the merits” of claims asserted
against a government entity. See §§ 12-348(A)(4), -2030(A). VOS has not
prevailed on the merits of its claims. If it ultimately prevails, it may ask
the superior court to award it fees expended in this Court.

CONCLUSION

¶40 Based on the foregoing, we vacate the court of appeals’
opinion. Furthermore, we reverse the superior court’s judgment and
remand to that court to permit VOS to answer the Dominium counterclaim
and allege any applicable equitable defenses. If necessary, the court
should also adjudicate any alternate bases for the defendants’ challenge to
VOS’s petition.

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