Fleischman v. Protect Our City

SUPREME COURT OF ARIZONA
En Banc

CHRIS FLEISCHMAN, a registered ) Arizona Supreme Court
voter in the City of Phoenix, ) No. CV-06-0333-AP/EL
KATHY ROEDIGER, a registered )
voter in the City of Phoenix, ) Maricopa County
ALFREDO GUTIERREZ, a registered ) Superior Court
voter in the City of Phoenix, ) No. CV 2006-013116
)
Plaintiffs/Appellees, )
)
v. ) O P I N I O N
)
PROTECT OUR CITY, a political )
organization, )
)
Defendant/Appellant, )
)
MARIO PANIAGUA, in his official )
capacity as City Clerk of the )
City of Phoenix; HELEN PURCELL, )
in her official capacity as )
Recorder of Maricopa County, )
Arizona; KAREN OSBORNE, in her )
official capacity as Director of )
Elections of Maricopa County, )
Arizona; and DON STAPLEY, FULTON )
BROCK, ANDREW KUNASEK, MAX )
WILSON and MARY ROSE WILCOX, in )
their official capacities as )
Members of the Board of )
Supervisors of Maricopa County, )
Arizona; MAYOR PHIL GORDON, in )
his official capacity as Mayor )
of the City of Phoenix; DAVE )
SIEBERT, PEGGY NEELY, PEGGY )
BILSTEN, TOM SIMPLOT, CLAUDE )
MATTOX, GREG STANTON, DOUG )
LINGNER and MICHAEL JOHNSON, in )
their official capacities as )
Members of the City Council of )
the City of Phoenix )
)
Defendants. )
__________________________________)
 Appeal from the Superior Court in Maricopa County
The Honorable Janet E. Barton, Judge

AFFIRMED
________________________________________________________________

PERKINS COIE BROWN & BAIN P.A. Phoenix
By Charles A. Blanchard
Rhonda L. Barnes
Colin P. Ahler
And

ALTSHULER, BERZON, NUSSBAUM, RUBIN & DEMAIN San Francisco, CA
By Stephen P. Berzon
Danielle E. Leonard
And

ROUSH, MCCRACKEN, GUERRERO, MILLER & ORTEGA Phoenix
By Daniel R. Ortega, Jr.
Attorneys for Chris Fleischman, Kathy Roediger,
and Alfredo Gutierrez

AHWATUKEE LEGAL OFFICE Phoenix
By David L. Abney
Attorneys for Protect Our City

GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix
By Larry F. Felix, Assistant City Attorney
Attorneys for Amicus Curiae City of Phoenix
________________________________________________________________

B A L E S, Justice

¶1 The legislature has directed, as a matter of general

law, that once petition signature sheets are filed in support of

a ballot measure, “no additional petition sheets may be accepted

for filing.” Ariz. Rev. Stat. (“A.R.S.”) § 19-121(B) (2002).

Consistent with this mandate, we hold that municipal laws that

allow the filing of supplemental signatures in support of local

ballot measures are invalid. This opinion explains the reasons

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for our order dated January 12, 2007, which affirmed the

superior court’s judgment barring an initiative from appearing

on the ballot for a City of Phoenix election.

FACTS AND PROCEDURAL BACKGROUND

¶2 Protect Our City (“POC”) proposed a City of Phoenix

initiative measure concerning the enforcement of federal

immigration laws. On July 6, 2006, POC filed initiative

petition sheets containing 21,297 signatures with the City

Clerk. The initiative required 14,844 valid signatures to

qualify for placement on the ballot. See Ariz. Const. art. 4,

pt. 1, § 1(8) (signatures from fifteen percent of the qualified

electors of the city are needed to propose an initiative); see

also A.R.S. § 19-143(A) (2002) (number of signatures from

qualified electors is calculated based on number of votes cast

at last preceding election for mayor or city council). The City

Clerk determined that only 14,160 of the signatures submitted

were valid and therefore issued a certificate of insufficiency.

¶3 POC then submitted 1,275 supplemental signatures

pursuant to chapter XV, section 3(D) of the Phoenix City Charter

(“Charter”) and section 12-1102(a)(2) of the Phoenix City Code

(“Code”). These municipal provisions authorize a one-time

supplementation of signatures if the City Clerk deems an

initiative petition insufficient for lack of valid signatures.

Charter ch. XV, § 3(D); Code § 12-1102(a)(2). The supplemental

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signatures must be filed within ten days of the filing of the

certificate of insufficiency. Charter ch. XV, § 3(D); Code §

12-1102(a)(2).

¶4 After determining that enough of the supplemental

signatures were valid, the City Clerk certified the initiative

for the ballot. Fleischman, Roediger, and Gutierrez (the

“challengers”) then brought an action in superior court pursuant

to A.R.S. § 19-121.03(B) (2002) challenging the Clerk’s

certification.

¶5 The superior court concluded that the City Charter and

Code provisions conflict with A.R.S. § 19-121(B) and are invalid

insofar as they allow the filing of supplemental signatures.

Because POC lacked sufficient signatures without its

supplemental filing, the superior court ruled that the

initiative could not appear on the ballot.

¶6 POC timely appealed to this Court. We have

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

Constitution and A.R.S. § 19-121.03(B).

DISCUSSION

A. Jurisdiction

¶7 We invited the parties to address whether this Court’s

jurisdiction over this appeal is exclusive or concurrent with

that of the court of appeals. When jurisdiction is concurrent

and an appeal is initially filed with this Court, our long-

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established practice has been to transfer the case to the court

of appeals. Perini Land & Dev. Co. v. Pima County, 170 Ariz.

380, 382, 825 P.2d 1, 3 (1992); Ariz. Podiatry Ass’n v. Dir. of

Ins., 101 Ariz. 544, 549, 422 P.2d 108, 113 (1966). In election

matters, when there is concurrent appellate jurisdiction, “[i]n

the ordinary course, appeals . . . should be to the court of

appeals. If special circumstances exist that require that this

Court hear the appeal directly, a motion for transfer may be

filed under ARCAP 19.” Hancock v. Bisnar, 212 Ariz. 344, 346

n.3 ¶ 7, 132 P.3d 283, 285 n.3 (2006).

¶8 Section 19-121.03(B) provides that in actions

challenging the certification of signatures for a ballot measure

“[e]ither party may appeal to the supreme court within ten

calendar days after judgment.” Another statute, however, more

generally affords appellate jurisdiction to the court of appeals

“in all actions and proceedings originating in or permitted by

law to be appealed from the superior court, except criminal

actions involving crimes for which a sentence of death has

actually been imposed.” A.R.S. § 12-120.21(A)(1) (2003); see

also id. § 12-2101(B) (2003) (allowing appeals to court of

appeals from final judgments entered in superior court). Thus,

the issue is whether § 19-121.03(B) gives this Court

jurisdiction exclusive of that which otherwise exists in the

court of appeals under its general jurisdictional statutes.

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¶9 We dealt with a similar issue in Perini. There we

held that this Court and the court of appeals have concurrent

jurisdiction over referendum appeals under A.R.S. § 19-122(C).

170 Ariz. at 382, 825 P.2d at 3. In actions challenging the

legal sufficiency of ballot measures, § 19-122(C), which has not

been amended since 1992, provides that “[e]ither party may

appeal to the supreme court within ten days after judgment.” We

held that this language, which predated the creation of the

court of appeals in 1964, did not give this Court exclusive

jurisdiction, “[i]n light of the broad appellate jurisdiction

vested in the court of appeals.” Perini, 170 Ariz. at 382, 825

P.2d at 3 (citing Ariz. Podiatry, 101 Ariz. at 547, 422 P.2d at

111). Absent any expressed intent to give this Court exclusive

jurisdiction, we did not interpret the statutes vesting

appellate jurisdiction in this Court as limiting the

jurisdiction that A.R.S. §§ 12-120.21(A)(1) and -2101 separately

vest in the court of appeals. See id.

¶10 This case involves A.R.S. § 19-121.03(B), which

addresses challenges to the certification of ballot measure

petition signatures. Much like the statute involved in Perini,

it provides that “[e]ither party may appeal [the superior

court’s decision] to the supreme court within ten calendar days

after judgment.” Id. Section 19-121.03(B), however, was

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enacted after the legislature created the court of appeals.1

Nonetheless, as in Perini, the constitutional and statutory

grants of jurisdiction indicate that this Court and the court of

appeals have concurrent appellate jurisdiction. See 170 Ariz.

at 382, 825 P.2d at 3; see also Ariz. Podiatry, 101 Ariz. at

547, 422 P.2d at 111.

¶11 As we explained in Arizona Podiatry, “[i]t has long

been a general rule of law that a grant of jurisdiction to one

court does not, in the absence of an express provision to that

effect, imply that the jurisdiction is to be exclusively vested

in that court.” 101 Ariz. at 548, 422 P.2d at 112. Thus,

unless the legislature has made clear that our jurisdiction is

exclusive, our appellate jurisdiction is concurrent with that of

the court of appeals.

¶12 There are very few instances in which this Court has

been granted exclusive jurisdiction. The first is over “causes

between counties.” Ariz. Const. art. 6, § 5(2) (providing for

“original and exclusive jurisdiction” in this Court over such

matters). We also have exclusive jurisdiction over death

penalty appeals, as A.R.S. § 12-120.21(A)(1) specifically

exempts those cases from the jurisdiction of the court of

1
The language found in § 19-121.03(B) was first enacted in
1970 as § 19-121.04(B). 1970 Ariz. Sess. Laws, ch. 152, § 8.
It was renumbered to § 19-121.03(B) in 1973. 1973 Ariz. Sess.
Laws, ch. 159, § 7.

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appeals. Finally, in the context of candidate nomination

petition challenges, the legislature has specifically provided

that the superior court’s decision “shall be appealable only to

the supreme court.” A.R.S. § 16-351(A) (2006) (emphasis added).

Because § 19-121.03(B) does not similarly provide an express

grant of exclusive jurisdiction to this Court, we do not infer

one. See Ariz. Podiatry, 101 Ariz. at 548, 422 P.2d at 112.

¶13 Consequently, we hold that we have concurrent

jurisdiction with the court of appeals over appeals taken under

§ 19-121.03(B). We further reiterate the rule set forth in

Perini that “[a]lthough we have concurrent jurisdiction with the

court of appeals[,] . . . a party should file any future action

[pursuant to § 19-121.03(B)] in the court of appeals.” 170

Ariz. at 382, 825 P.2d at 3.

¶14 Under the particular circumstances of this case,

however, we will exercise our jurisdiction to decide this

appeal. Each side urges us to do so, and we have not previously

held that our jurisdiction over this type of appeal is

concurrent rather than exclusive. It is also important that the

parties obtain a timely determination whether the proposed

initiative will be on the ballot for the next city election.

Finally, this case presents an issue of general importance

because at least one other city allows the supplementation of

petition signatures after a determination of insufficiency. See

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Tucson City Code § 12-59.

B. Merits

¶15 The merits of this appeal turn on whether the Charter

and the Code conflict with A.R.S. § 19-121(B). If a conflict

does exist, the municipal provisions are invalid. Ariz. Const.

art. 4, pt. 1, § 1(8); see Union Transportes de Nogales v. City

of Nogales, 195 Ariz. 166, 171 ¶ 21, 985 P.2d 1025, 1030 (1999).

¶16 The power of initiative and referendum is reserved by

the Arizona Constitution to the qualified electors of cities,

towns, and counties. Ariz. Const. art. 4, pt. 1, § 1(8). The

Constitution allows localities to “prescribe the manner of

exercising said powers,” as long as they do so “within the

restrictions of general laws.” Id. Title 19 of the Arizona

Revised Statutes sets forth the statutory guidelines for

initiative and referendum procedures, and § 19-141 (2002)

specifically addresses these procedures for cities, towns, and

counties.

¶17 Before 1991, § 19-141(A) authorized cities and towns

to establish their own ballot measure procedures, provided they

were “less restrictive on the right to initiative or referendum”

than state laws. In the absence of local provisions, Title 19

would apply. Id. In 1991, the legislature amended the statute

to establish certain uniform procedures. 1991 Ariz. Sess. Laws,

3d Spec. Sess., ch. 1, § 21. The amended § 19-141(A) reads:

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“The provisions of this chapter shall apply to the legislation

of cities, towns and counties, except as specifically provided

to the contrary in this article.” Thus, unless Title 19

specifically permits a city to depart from the general laws, the

city has no power to do so.

¶18 The local provisions at issue are chapter XV, section

3(D) of the Phoenix Charter, and § 12-1102(a)(2) of the Phoenix

City Code. The Charter provides: “Any initiative petition

certified insufficient for lack of the number of signatures

required by the constitution may be amended once by filing a

supplementary petition within ten days of the filing of the

certificate of insufficiency.” Likewise, the Code states:

“Within ten days after the filing of the certificate of

insufficiency additional signatures properly verified may be

filed, but no further supplementation thereafter shall be

permitted.”

¶19 The relevant state law, A.R.S. § 19-121, sets forth

the procedure for filing statewide initiative and referendum

petitions. It provides, in pertinent part: “For purposes of

this chapter, a petition is filed when the petition sheets are

tendered to the secretary of state, at which time a receipt is

immediately issued . . . . After the issuance of the receipt, no

additional petition sheets may be accepted for filing.” Id. §

19-121(B) (emphasis added) (footnote omitted). This provision

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applies to local ballot measures pursuant to § 19-141(A), which

also directs that the duties required of the secretary of state

for statewide elections shall instead be performed “by the city

or town clerk” for municipal elections.

¶20 The Charter and the Code provisions directly conflict

with § 19-121(B). While the state statute expressly prohibits

the filing of additional petition sheets following the issuance

of the receipt, the Charter and the Code allow the

supplementation of signatures under certain circumstances.

Therefore, unless Title 19 specifically authorizes cities to

establish their own procedures in this area, these local

provisions are invalid.

¶21 POC argues that such authorization comes from § 19-

141(D). This section provides:

The procedure with respect to municipal and county
legislation shall be as nearly as practicable the same
as the procedure relating to initiative and referendum
provided for the state at large, except the procedure
for verifying signatures on initiative or referendum
petitions may be established by a city or town by
charter or ordinance.

Id. (emphasis added). The Charter and the Code provisions, POC

contends, constitute part of the local signature verification

process, and thus no conflict exists.

¶22 POC urges us to impart a meaning to § 19-141(D) that

its language does not support. Both state and city laws

distinguish between the filing of petition signature sheets and

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the procedures for verifying submitted signatures. Under state

law, A.R.S. § 19-121 outlines the procedure for filing signature

sheets. “[A] petition is filed when the petition sheets are

tendered” to the filing officer, a receipt is then issued

“immediately,” and thereafter “no additional petition sheets may

be accepted for filing.” Id. § 19-121(B). The process for

verifying submitted signatures, in contrast, is separately

governed by A.R.S. §§ 19-121.01, -121.02, and -121.04 (2002),

which provide that filed signature sheets will be verified by

the relevant county recorder.

¶23 Consistent with A.R.S. § 19-141(D), Phoenix has opted

to have the City Clerk, rather than the county recorder, verify

signatures on petition sheets. The City’s procedure for

verifying signatures appears in City Code § 12-1108. If the

verification process indicates that insufficient signatures have

been submitted, the Clerk issues a “certificate of

insufficiency” and the ballot measure proponent is then allowed

additional time in which “additional signatures properly

verified may be filed.” Id. § 12-1102(a)(2) (emphasis added).

Thus, the City Code also distinguishes the filing of signature

sheets from the procedure for verifying the signatures.

¶24 The legislature has directed that the general laws

governing the procedures for ballot measures shall apply to

municipalities and counties “except as specifically provided to

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the contrary” in state law. A.R.S. § 19-141(A). The general

laws bar the filing of additional petition sheets after the

initial filing. Id. § 19-121(B). The legislature has not

authorized municipalities to accept supplemental signatures by

authorizing cities and towns to establish the “procedure for

verifying signatures” for ballot measures, § 19-141(D). Such a

procedure contravenes § 19-121(B).

¶25 We therefore hold that chapter XV, section 3(D) of the

Phoenix City Charter and § 12-1102(a)(2) of the Phoenix City

Code conflict with A.R.S § 19-121(B). The city provisions are

invalid insofar as they allow the filing of supplemental

signatures after the initial filing of a ballot measure

petition.

¶26 The challengers request an award against the City of

their attorneys’ fees on appeal pursuant to A.R.S. § 12-2030(A)

(2003). This statute directs the award of fees in favor of

private parties who prevail in actions to compel public officers

to perform duties imposed upon them by law. We deny the

request for fees because this appeal involves a challenge under

A.R.S. § 19-121.03(B) to the City Clerk’s completed

certification rather than a mandamus action under A.R.S. § 19-

121.03(A) to compel the Clerk to perform a certification.

CONCLUSION

¶27 For the foregoing reasons, we affirm the judgment of

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the superior court enjoining the placement of the initiative on

the ballot.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

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