533 P.3d 942
Ariz.2023Background:
- On Aug. 16, 2022, Surprise City Council passed Ordinance 2022-18; a referendum required 3,114 valid signatures within 30 days to stay its effect.
- Voice of Surprise (VOS) filed an application for a petition serial number on Aug. 29 but omitted the text of Ordinance 18 as required by A.R.S. § 19-111(A); the City Clerk nonetheless issued a serial number.
- VOS circulated petition sheets that properly attached Ordinance 18 and returned 5,432 signatures by Sept. 16.
- On Oct. 5 the City Clerk rejected all petition sheets and signatures solely because the initial application omitted the ordinance text.
- VOS sued to compel the Clerk to process the petitions; the superior court denied relief and the court of appeals affirmed; the Arizona Supreme Court granted review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presumption of signature validity (Whitman) can be reinstated to cure a defective application under § 19-111(A) | VOS: omission only destroyed a restorable presumption; reinstated because Clerk and signers knew the ordinance and petitions attached the text | City/Developers: failure to strictly comply with § 19-111(A) is fatal and cannot be cured | Held: Presumption applies only to signature-gathering defects; it does not apply to application errors, so VOS cannot cure the omission post hoc |
| Whether the City Clerk was authorized to reject circulated petition sheets and signatures because the application omitted the ordinance text | VOS: Clerk had no authority to reject already-circulated, signed petitions for an application omission; must process petitions | City: § 19-101.01’s directive of strict compliance empowers the Clerk to enforce § 19-111(A), including rejecting petitions | Held: Clerk lacked statutory or constitutional authority to reject petition sheets for the application defect; her authority to act is limited to explicit constitutional/statutory grants |
| Remedy/procedure after these rulings | VOS: Court should order Clerk to process signatures | Defendants: uphold dismissal based on statutory noncompliance | Held: Supreme Court reversed superior court judgment and remanded to allow VOS to answer counterclaims and raise equitable defenses against private challengers; Clerk must process petitions unless other valid grounds for disqualification exist |
Key Cases Cited
- Whitman v. Moore, 59 Ariz. 211 (Ariz. 1942) (established presumption of validity for circulated, signed petitions and recognized a model for reinstating that presumption where defects go to signature qualification)
- Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426 (Ariz. 1991) (applied Whitman to allow reinstatement of presumption when circulator affidavits lacked required language but independent proof showed the underlying objective was met)
- Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3 (Ariz. 1972) (permitted curing circulator-related defects via proof that circulators were qualified electors)
- Leach v. Reagan, 245 Ariz. 430 (Ariz. 2018) (discussed limits on clerks’ authority to disqualify petitions for certain technical filing defects)
- Ariz. Free Enter. Club v. Hobbs, 253 Ariz. 478 (Ariz. 2022) (recognition that partial referrals of measures are permissible and that precise identification of challenged text matters)
- Jenkins v. Hale, 218 Ariz. 561 (Ariz. 2008) (applied presumption of validity in petition/challenge contexts)
- Wennerstrom v. City of Mesa, 169 Ariz. 485 (Ariz. 1991) (distinguished legislative versus administrative acts as referable matters)