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Forszt & Vestar Arizona, XLI, LLC v. Rodriguez - 2/22/2006

Division Two Holds That Referendum Proponents Successfully Restored the Presumption of Validity of Signatures Where Technical Defect Existed in Proponents’ Petition at Time of Filing with Town Clerk, But Such Defect Did not Exist When Form of Petition was Actually Circulated to Signatories.

Referendum proponents, Stop O.V. Outrageous Giveaways (“SOVOG”), sought to challenge by referendum an ordinance passed by the Town of Oro Valley that would have authorized it to enter into an economic development agreement with Vestar, Arizona, XLI, LLC (“Vestar”). SOVOG collected over 1,200 signatures and attached the ordinance they sought to challenge to each signature sheet. However, SOVOG removed the ordinance from the signature sheets when it actually submitted the completed referendum petition to the Oro Valley town clerk. The clerk refused to accept the petition because the ordinance was not attached as required by A.R.S. § 19-121(A)(3). SOVOG sought special action relief, which the trial court granted.

In compliance with the trial court’s order, the town clerk transmitted a sample of the signed petitions to the Pima County recorder. Vestar wrote to the recorder, asking her to disqualify SOVOG’s petition because the signature sheets had not been filed with the town clerk with the ordinance attached, A.R.S. 19-121.01(A)(1)(a). The recorder declined to do so, and Vespar sought a writ of mandamus and declaratory judgment against the recorder compelling her to disqualify SOVOG’s signature sheets. The trial court found that SOVOG had rebutted the presumption of invalidity that has arisen when it filed the petition without the ordinance attached.

Division Two affirmed, noting that proponents’ failure to strictly comply with a procedural statutory requirement does not always necessitate that the referendum petition be declared void. The court relied in part on Direct Sellers Association v. McBrayer, 109 Ariz. 3, 503 P.2d 951 (1972), in which the supreme court held that the omission of a required avowal in a circulator’s affidavit that the circulators were qualified electors did not render all the attached signatures null and void, but merely destroyed their presumption of validity. The presumption could be reinstated on proof that the circulators were in fact qualified electors. Likewise, the court in Forszt held that the trial court did not err in determining that SOVOG had successfully restored the presumption that their signatures were valid because the undisputed facts showed that the ordinance was attached to the signature sheets when they were circulated. Thus, the “underlying event relevant to assuring the validity of the signatures occurred;” namely, the signatories had a correct copy of the ordinance before them when they signed the petition for referendum. The court noted that it could “conceive of no independent purpose for the requirement that signatures be filed with the ordinance attached other than to confirm that they have been so circulated.”

Judge Howard authored the opinion; Judge Brammer, Jr. and Judge Eckerstrom concurred.

Posted On: 2/22/2006