SUPREME COURT OF ARIZONA
En Banc
JOSEPH E. HANCOCK and CHARLES B. ) Arizona Supreme Court
SHERRILL, JR., ) No. CV-05-0381-AP/EL
)
Appellees, ) Mohave County
) Superior Court
v. ) No. CV2005-1323
)
ANDY BISNAR, KENNETH GRIFFIN and )
LEE MUSICK, )
) O P I N I O N
Appellants. )
)
__________________________________)
Appeal from the Superior Court in Mohave County
The Honorable James E. Chavez, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS
______________________________________________________________________________
COPPERSMITH GORDON SCHERMER OWENS & NELSON P.L.C. Phoenix
By Andrew S. Gordon
Lauren Jacqueline Weinzweig
Attorneys for Joseph E. Hancock and Charles B. Sherrill, Jr.
GAMMAGE & BURNHAM P.L.C. Phoenix
By Lisa T. Hauser
Michella Abner
Attorneys for Andy Bisnar, Kenneth Griffin, and Lee Musick
ROBERT S. LYNCH & ASSOCIATES Phoenix
By Robert S. Lynch
And
PAUL R. ORME Mayer
Attorneys for Amici Curiae Central Arizona Irrigation and
Drainage District and Maricopa Stanfield Irrigation &
Drainage District
WADE NOBLE Yuma
Attorney for Amici Curiae Wellton-Mohawk Irrigation and
Drainage District, Yuma Irrigation District, and North
Gila Valley Irrigation and Drainage District
RYLEY CARLOCK & APPLEWHITE P.A. Phoenix
By L. William Staudenmaier, III
Attorneys for Amicus Curiae Roosevelt Water
Conservation District
DENNIS M. O’NEILL, CHANDLER CITY ATTORNEY Chandler
By Cynthia J. Haglin, Assistant City Attorney
And
DEBORAH J. SPINNER, MESA CITY ATTORNEY Mesa
By Charles L. Cahoy, Assistant City Attorney
Attorneys for Amici Curiae Cities of Chandler and Mesa
______________________________________________________________________________
H U R W I T Z, Justice
¶1 This is an election contest challenging the
qualifications of three individuals elected as directors of the
Mohave Valley Irrigation and Drainage District (“MVIDD” or
“District”) in a recall election. We hold that the challenged
directors are not qualified to serve under the statutes
governing irrigation districts.
I.
¶2 MVIDD is a political subdivision of the state and a
municipal corporation. See Ariz. Const. art. 13, § 7; Ariz.
Rev. Stat. (“A.R.S.”) § 48-2901 (2005). The District contains
21,648 acres of land, of which 3273 are agricultural. At the
time of the trial in this matter, 563 landowners had registered
to vote in the District, only four of whom were agricultural
2
landowners. Agricultural landowners use eighty-four percent of
the water in the District and a combination of municipal,
industrial, and domestic users consume the remainder. All
landowners in the District are subject to annual assessments of
$1.33 per acre.
¶3 The District is composed of three divisions and is
governed by a board of directors, with one director elected from
each division. A.R.S. § 48-3011(A) (2005). District directors
must be “qualified electors of the division of the district from
which they are elected.” A.R.S. § 48-3011(B). MVIDD elections
are conducted through a “personal and individual” (one elector,
one vote) voting system, see A.R.S. §§ 48-3015 (2005), -3018
(2005), as opposed to a “per acre” voting system, see A.R.S. §§
48-3041 (2005), -3043 (2005).
¶4 A director is subject to recall under the laws
governing recall of county officers, A.R.S. § 16-674 (1996), “by
the vote of a majority of the qualified electors of the division
which he represents,” A.R.S. § 48-3024 (2005). Recall petitions
were filed with respect to the three incumbent directors of
MVIDD, and the District held a recall election on September 13,
2005. Because three other individuals received the most votes,
the incumbent directors were each recalled. The Mohave County
Board of Supervisors approved the canvass of the election on
October 3, 2005.
3
¶5 Four days later, one of the ousted directors and an
elector (“Contestants”) filed this election contest, arguing
that the newly-elected directors (“Electees”) are not eligible
to serve because they do not own agricultural land in the
District and therefore are not qualified electors under the rule
in Post v. Wright, 37 Ariz. 105, 289 P. 979 (1930).1 In
response, the Electees challenged the sufficiency of the
Contestants’ statement of contest and argued that Post was
wrongly decided and should be overruled.
¶6 The superior court rejected the Electees’ challenges
to the statement of contest. On the merits, the court held that
it was bound by Post and that the Electees therefore were not
qualified electors because they are not agricultural landowners.
Because the Electees were not qualified electors, the superior
court held that they were ineligible to serve as directors of
the District. The court ordered “that the incumbent directors
shall remain in office until their successors are appointed and
qualify.”2
1
The Contestants challenged only the qualifications of the
Electees and did not challenge the ballots of the approximately
550 other non-agricultural landowners who voted in the recall
election. Nor had any challenge been raised to signatures of
non-agricultural landowners on the recall petitions.
2
The superior court stayed this order “pending the Supreme
Court’s ruling.”
4
¶7 The Electees timely appealed. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 12-2101(B) (2003).3
II.
¶8 The Electees argue that the Contestants failed to
plead jurisdictional facts necessary to maintain an election
contest. Because these arguments, if correct, would dispose of
the appeal, we address them first.
A.
¶9 The statutes governing irrigation districts permit
districts to be subdivided into divisions, A.R.S. § 48-2913(B)
(2005), and require that “[d]irectors representing a division
shall be qualified electors of the division . . . from which
they are elected,” A.R.S. § 48-3011(B). The Electees first
assert that the statement of contest and its supporting
3
We have concurrent jurisdiction with the court of appeals
over this case. Ariz. Podiatry Ass’n v. Dir. of Ins., 101 Ariz.
544, 548-49, 422 P.2d 108, 112-13 (1966). We accepted
jurisdiction because the central issue is the continued validity
of this Court’s decision in Post. See State v. Smyers, 207
Ariz. 314, 318 n.4, 86 P.3d 370, 374 n.4 (2004) (“The courts of
this state are bound by the decisions of this court and do not
have the authority to modify or disregard this court’s rulings.
Any other rule would lead to chaos in our judicial system.”)
(internal quotation and citation omitted). In the ordinary
course, appeals in elections contests should be to the court of
appeals. If special circumstances exist that require that this
Court hear the appeal directly, a motion for transfer may be
filed under ARCAP 19.
5
affidavits are insufficient because they do not allege in which
MVIDD division the Contestants are qualified electors.
¶10 Proceedings to recall the directors of an irrigation
district “shall be in all respects as provided by the
constitution and laws of the state for the recall of county
officers.” A.R.S. § 48-3024. Contests of county elections, in
turn, are made “on the same grounds and in the same manner as
contests of election to a state office.” A.R.S. § 16-674(A).
Section 16-673(A) (1996), which governs the requirements for a
statement of contest for state elections, is thus the relevant
statute.4 Under that provision, a valid statement of contest
requires:
[A] statement in writing setting forth:
1. The name and residence of the party contesting the
election, and that he is an elector of the state and
county in which he resides.
2. The name of the person whose right to the office is
contested, or the title of the measure, or
constitutional amendment, or other proposition as it
appeared upon the official ballot.
3. The office the election to which is contested.
4. The particular grounds of the contest.
A.R.S. § 16-673(A).
4
In addition, A.R.S. § 16-642(B) states that a contest of an
election held by “a special district as defined in title 48,”
the title governing irrigation districts, is to be “as described
in § 16-673.”
6
¶11 Section 16-673(A)(1) requires only an allegation that
the contestant is “an elector of the state and county in which
he resides.” This Court interpreted the predecessor to this
statute in the context of a local election in Kitt v. Holbert,
30 Ariz. 397, 248 P. 25 (1926) (addressing Arizona Code ¶ 3061
(1913)). Kitt involved challenges to the election of two Tucson
city councilmen, and held that under the statute, “the right of
contest of any election is granted to any elector of the
particular political subdivision from which the officer whose
election is contested is chosen.” Id. at 400, 248 P. at 26
(emphasis added); see also Sorenson v. Superior Court, 31 Ariz.
421, 426, 254 P. 230, 231 (1927) (holding that a school district
is a political subdivision of the county for purposes of the
recall statute).
¶12 In the case of an election contest involving an
irrigation district, the “political subdivision from which the
officer whose election is contested is chosen,” Kitt, 30 Ariz.
at 400, 248 P. at 26, is the district, not one of its divisions.
Article 13, Section 7 of the Arizona Constitution establishes a
district – not a division thereof – as a political subdivision
of the state. See also A.R.S. § 48-2901 (providing that the
district – not its divisions – is a municipal corporation). The
Contestants alleged in this case that they were electors of the
District, and that is all the recall statutes require.
7
B.
¶13 The Electees also argue that the statement of contest
is defective because the “Contestants failed to allege . . .
that they possessed property qualifications for 90 days prior to
the recall election.” They base this argument on A.R.S. § 48-
2917(A), which establishes the qualifications of electors in
irrigation districts. Section 48-2917(A) provides:
No person shall be entitled to vote at any election,
held under the provisions of this chapter unless:
1. He is a holder of title or evidence of title,
including receipts or other evidence of the rights of
entry-men on lands under any law of the United States
or this state, to land in the district, and has
possessed such qualifications for ninety days
immediately preceding the date of such election.
2. He has resided continuously for six months
immediately preceding the election in the county in
which the district or a part thereof is located.
3. He is at least eighteen years of age.
4. He is registered as provided by § 48-3015.
(Emphasis added.)
¶14 This Court addressed this very argument in Schahrer v.
Bell, 34 Ariz. 334, 271 P. 715 (1928). In that case, a
contestant challenged an election of the Verde River Irrigation
and Power District; the statement of contest “fail[ed] to show
that the contestants possessed the [property] qualifications
designated 90 days preceding the election.” Id. at 338, 271 P.
at 716 (citing 1921 Ariz. Sess. Laws, ch. 149, § 1 (codified as
8
amended at A.R.S. § 48-2917). The Court held that “[i]n the
absence of such [an] averment and proof thereof, the contestants
would not be . . . competent to institute or prosecute this
proceeding.” Id. at 339, 271 P. at 716. Electees argue that
Schahrer controls the result here.
¶15 Under the code form of pleading in place at the time
of Schahrer, a party’s complaint was required to “set forth
facts sufficient to state a cause of action.” Greenlee County
v. Cotey, 17 Ariz. 542, 549, 155 P. 302, 305 (1916). Although
code pleading “abandoned technical forms of actions,” it
nonetheless required allegation of “all the material facts
essential to constitute the particular cause of action relied
on.” Id. at 550, 155 P. at 305 (Franklin, J., concurring); see
also Button v. O.S. Stapley Co., 40 Ariz. 79, 87, 9 P.2d 1010,
1012 (1932) (“One of the fundamental principles of common-law
pleading also is that a plaintiff must allege in his complaint
the existence of every fact which it is necessary for him to
prove in order to sustain a judgment.”) (Lockwood, J.,
dissenting).
¶16 More than a decade after the Schahrer opinion,
however, this Court adopted rules of civil procedure. Under
those Rules, a complaint need only provide “[a] short and plain
statement of the grounds upon which the court’s jurisdiction
depends.” Ariz. R. Civ. P. 8(a); see also Guerrero v. Copper
9
Queen Hosp., 112 Ariz. 104, 106-07, 537 P.2d 1329, 1331-32
(1975) (“In testing a complaint for a failure to state a claim,
the question is whether enough is stated which would entitle the
plaintiff to relief upon some theory to be developed at trial.
The purpose of the rule is to avoid technicalities and give the
other party notice of the basis for the claim and its general
nature.”) (citing Mackey v. Spangler, 81 Ariz. 113, 115, 301
P.2d 1026, 1027-28 (1956)).
¶17 Here, the Contestants alleged that each was a
“resident of Mohave County” and “a qualified elector of the
District.” These allegations are sufficient under the notice
pleading requirements of Rule 8(a) to establish the superior
court’s jurisdiction to consider this election contest. By
alleging that they were “qualified elector[s]” of the District,
the Contestants gave sufficient notice that they claimed to meet
all requirements of the statute defining qualified electors,
including the requirement that they possessed title to land for
more than ninety days prior to the election.5
III.
¶18 In Post, this Court analyzed the requirements for
qualified electors of irrigation districts set out in the
5
In their answer to the statement of contest, the Electees
admitted that each of the Contestants was a “qualified elector
somewhere within the District.” There is thus no claim that
10
predecessor statute to A.R.S. § 48-2917. 37 Ariz. at 117-24,
289 P. at 983-85 (addressing 1921 Ariz. Sess. Laws, ch. 149, §§
1, 3). That statute required, in language materially
indistinguishable from that in current § 48-2917(A)(1), that
qualified electors be “‘the holders of title or evidence of
title, including receipts or other evidence of the rights of
entrymen on lands under any law of the United States or of this
state to lands in any district.’” Id. at 120, 289 P. at 984
(citing 1921 Ariz. Sess. Laws, ch. 149, § 1).
¶19 The Court started from the premise that, “taken
literally,” the statutory language would permit all “holders of
title to land in the district” to be electors. Id. Rather than
relying solely on the statutory language, however, the Court
determined that it “should look to the whole irrigation district
law” to determine the qualifications for electors. Id. The
Court noted:
[T]he primary purpose of this law was to permit
landowners to organize an irrigation district to
obtain water for the irrigation of their agricultural
lands, lands of little or no value without water but
which the owners or possessors expect to make very
valuable for the production of crops by the
application thereto of water.
Id. at 120-21, 289 P. at 984. The Court then examined case law
analyzing California’s Wright and Bridgeford Acts, the source of
_______________________________________
Contestants lacked the statutory qualifications to file an
election contest.
11
Arizona’s irrigation district laws. Id. at 121-23, 289 P. at
984-85. Under that case law, persons signing a petition to
organize an irrigation district were required to be “‘bona fide
owners of agricultural land, desiring to improve the same by
conducting water upon it.’” Id. at 123, 289 P. at 985 (quoting
In re Cent. Irrigation Dist., 49 P. 354, 360 (Cal. 1897)).
Given the purpose of the Arizona irrigation district laws and
California’s interpretation of its similar statutes, the Court
concluded that qualified electors also must be agricultural
landowners.
¶20 Under Post, the Electees, who do not own agricultural
land in the District, cannot serve as MVIDD directors. The
Electees therefore ask us to overrule Post, arguing that it “was
wrongly decided because the Supreme Court should not have looked
beyond a statute that was clear on its face to add additional
requirements.”
¶21 The Electees’ statutory interpretation argument has
some appeal. However, we are not writing on a clean slate:
Post was decided more than three-quarters of a century ago.
Thus, we must decide not merely whether we would arrive at the
same result today, but whether we should overrule such long-
standing precedent. Principles of stare decisis counsel against
such a result.
12
¶22 The doctrine of stare decisis “‘is grounded on public
policy that people should know what their rights are as set out
by judicial precedent and having relied on such rights in
conducting their affairs should not have them done away with by
judicial fiat.’” Derendal v. Griffith, 209 Ariz. 416, 424 ¶ 33,
104 P.3d 147, 155 (2005) (quoting White v. Bateman, 89 Ariz.
110, 113, 358 P.2d 712, 713-14 (1961)); see also Galloway v.
Vanderpool, 205 Ariz. 252, 256 ¶ 16, 69 P.3d 23, 27 (2003) (“The
doctrine of stare decisis . . . seeks to promote reliability so
that parties can plan activities knowing what the law is.”).
The strength of that doctrine is at its apex “when prior
decisions construe a statute.” Galloway, 204 Ariz. at 256 ¶ 16,
69 P.3d at 27; see also State v. Hickman, 205 Ariz. 192, 201 ¶
38, 68 P.3d 418, 427 (2003) (noting that “in cases involving
statutory interpretation the burden [required to overrule a
prior decision] is highest”). This is because if we have
“interpret[ed] the statute other than as the legislature
intended, the legislature retains the power to correct us.”
Galloway, 205 Ariz. at 256 ¶ 17, 69 P.3d at 27. Therefore,
[i]t is universally the rule that where a statute
which has been construed by a court of last resort is
reenacted in the same or substantially the same terms,
the legislature is presumed to have placed its
approval on the judicial interpretation given and to
have adopted such construction and made it part of the
reenacted statute.
13
Scheehle v. Justices of the Supreme Court, 211 Ariz. 282, 288 ¶
19, 120 P.3d 1092, 1098 (2005) (quoting State v. Superior Court,
104 Ariz. 440, 442, 454 P.2d 982, 984 (1969)).
¶23 Since Post was decided more than seventy-five years
ago, the legislature has amended A.R.S. § 48-2917 and its
predecessor statutes nine times; none of those amendments
addressed or sought to alter our holding in Post. We therefore
presume that the legislature has relied upon and ratified our
decision. See Galloway, 205 Ariz. at 256 ¶ 17, 69 P.3d at 27
(“If the legislature amends a statute after it has been
judicially construed, but does not modify the statute in a
manner that changes the court’s interpretation, we presume the
legislature approved of the court’s construction and intended
that it remain a part of the statute.”); Cagle v. Butcher, 118
Ariz. 122, 124 n.2, 575 P.2d 321, 323 n.2 (1978) (“Where a
statute that has been construed by a court of last resort is
reenacted in substantially the same terms, the legislature is
presumed to have placed its approval on the judicial
construction and adopted such construction for the reenactment
of the statute.”).
¶24 Our prior cases recognize that “we do not lightly
overrule precedent and do so only for compelling reasons.”
Wiley v. Indus. Comm’n, 174 Ariz. 94, 103, 847 P.2d 595, 604
(1993). The Electees argue that “changes to the irrigation
14
district laws” provide a compelling reason for overruling Post.6
These changes, the Electees assert, have sufficiently changed
the purposes of irrigation districts such that Post should not
be followed.
¶25 Although the powers of irrigation districts have
changed somewhat since 1928, we do not find this a sufficiently
compelling reason to overrule Post. The opinion of the Supreme
Court of the United States in Ball v. James, 451 U.S. 355
(1981), is instructive in this regard. In Ball, the issue was
whether voting in the Salt River Project Agricultural
Improvement and Power District (“SRP”) could constitutionally be
limited to landowners in the district. Id. at 357. After
holding that the “narrow primary purpose,” of SRP, to “store,
conserve, and deliver water for use by [SRP] landowners,” id. at
369, justified restricting the franchise to SRP landowners, the
Court considered whether that purpose had been sufficiently
changed by subsequent events to require a different result.
Although SRP had “become the supplier of electric power for
hundreds of thousands of people in an area including a large
part of metropolitan Phoenix,” id. at 357, the Court nonetheless
6
The Electees point to a 1931 amendment to the irrigation
district statutes granting the power to charge for domestic
water, see 1931 Ariz. Sess. Laws, ch. 98, § 2 (currently
codified at A.R.S. § 48-2978), and to the 1940 adoption of
Article 13, Section 7 of the Arizona Constitution, which
15
held that the district’s original statutory purpose sufficiently
justified restriction of the franchise, id. at 371-72.
¶26 Any increase in the authority of irrigation districts
similarly has not altered their primary purpose. We recently
confirmed that, despite the increased urbanization of Arizona,
the primary purpose of irrigation districts remains to “develop
strong water systems to irrigate arid land.” Hohokam Irrigation
& Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 398 ¶
17, 64 P.3d 836, 840 (2003). Much as the transformation of SRP
from a district devoted almost entirely to agriculture into an
entity that provides electricity to hundreds of thousands of
urban users was insufficient to require an alteration of its
statutory voting scheme, the fact that MVIDD now delivers
substantial amounts of domestic water and power does not change
the nature of the District. Such changes do not “compel” us to
overrule Post. See Wiley, 174 Ariz. at 103, 847 P.2d at 604.
IV.
¶27 Because Post remains the law, the superior court
correctly held that the Electees are not qualified electors
because they admittedly do not own agricultural land. The law
requires that directors of the District “shall be qualified
_______________________________________
established irrigation districts as “political subdivisions of
the State.”
16
electors,” A.R.S. § 48-3011(B), and the Electees therefore
cannot serve as directors of the District.
¶28 After finding that the Electees “are ineligible to
serve as directors of MVIDD,” the superior court ordered that
the “incumbent directors shall remain in office until their
successors are appointed and qualify.” This was error. This
Court has previously held that
it is not possible for an incumbent to be recalled and
at the same time be retained in the office . . . .
Unless he receive[s] the highest number of votes, a
vacancy automatically occurs when his successful
opponent refuses to qualify. The paradox of being
recalled and at the same time elected is not possible
under our Constitution.
Abbey v. Green, 28 Ariz. 53, 70, 235 P. 150, 156 (1925). Thus,
the ousted directors cannot be returned to office and the
superior court should not have so ordered.
¶29 Under the Arizona Constitution, “[i]n the event that
[a] successor shall not qualify within five days . . . the said
office shall be vacant, and may be filled as provided by law.”
Ariz. Const. art. 8, pt. 1, § 4; see also A.R.S. § 19-216(A)
(2002) (“If the incumbent’s successor does not qualify within
five days after the results of the election have been declared,
the office shall be vacant, and may be filled as provided by
law.”). Vacancies in District directorships are governed by
A.R.S. § 48-3011(C), which provides as follows:
17
If a vacancy occurs in the board of directors . . .
the vacancy shall be filled by appointment made by the
remaining members of the board of directors or, upon
their failure or inability to appoint within thirty
days after the vacancy occurs, upon petition of five
electors of the district the board of supervisors of
the county in which the office of the district is
located shall by appointment fill the vacancy or
vacancies.
¶30 Here, because none of the Electees is qualified to
serve as a director, there are no “remaining members of the
board of directors” available to appoint new directors. A.R.S.
§ 48-3011(C). The parties stipulated at the time of trial that
there were then only four qualified electors, making it
impossible for “five electors of the district” to “petition
. . . the board of supervisors” to fill the vacancies. Id.
Based on the parties’ submissions to this Court, however, it
appears there now may be five or more qualified electors
available to file such a petition, and the vacancies resulting
from the decision below may thus be filled as provided by law.
V.
¶31 For the reasons stated above, we affirm the superior
court’s judgment that the Electees cannot serve as directors of
the MVIDD. We reverse the superior court’s judgment reinstating
the ousted directors and remand with instructions to enter a
judgment declaring the three offices vacant.
_______________________________________
Andrew D. Hurwitz, Justice
18
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
19