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Fleischman v. Protect Our City - 3/14/2007

Arizona Supreme Court Holds that It has Concurrent, Not Exclusive Jurisdiction with the Courts of Appeals Over Actions Challenging the Certification of Signatures for a Ballot Measure and Such Actions Must, in the Future, Be Filed with the Relevant Court of Appeal.


Protect Our City sought to include an initiative measure concerning the enforcement of federal immigration laws on the 2006 ballot. After the Phoenix City Clerk determined that POC's petition sheets did not contain enough valid signatures to qualify for placement on the ballot, it issued a certificate of insufficiency. POC then submitted supplemental signatures pursuant to a Phoenix City Code provision authorizing a one-time supplementation of signatures if the City Clerk deems an initiative petition insufficient for lack of valid signatures. Fleishman challenged the Clerk's certification under ARS 19-121(B), which provides that once a petitioner receives a receipt after filing a petition and tendering petition sheets to the secretary of state "no additional petition sheets may be accepted for filing." The superior court concluded that Phoenix City Code provisions conflict with state law and are invalid insofar as they permit the filing of supplemental signatures. POC appealed to the Supreme Court.

The Court first addressed whether its jurisdiction over the appeal was exclusive or concurrent with that of the court of appeals. ARS 19-121.03(B), under which POC appealed the superior court's decision, 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." Though more specific than the general statute providing that the courts of appeals have appellate jurisdiction "in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except" in capital cases, A.R.S. 12-120.21(A)(1), the Court concluded that 12-121.03(B) did not give the Supreme Court exclusive jurisdiction. This is so, said the Court, because as in Perini Land & Dev. Co. v. Pima County, 170 Ariz. 380 (1982), the Court does not interpret statutes vesting appellate jurisdiction in the Court as vesting exclusive jurisdiction unless there is an express intention to do so. Compare A.R.S. 19-121.03(B) with e.g., Ariz. Const. art. 6, section 5(2) (providing for "original and exclusive" in Supreme Court over "causes between counties"). In the future, a party should file its action in the court of appeals.

Despite this, the Court considered POC's appeal, primarily because it was announcing a new rule, but also because election matters require timely determinations and other city codes contain provisions similar to the one at issue. The Court then affirmed the superior court's decision striking down the portion of the Phoenix City Code that permits supplementing petitions as conflicting with Arizona law that prohibits supplementation. The Court rejected POC's argument that because cities have authority to set forth the procedure for verifying signatures, it should also have authority to modify the procedure for filing signatures, noting that verification and filing are two separate processes, and Arizona law grants discretion to cities only over the verification process.

Justice Bales authored the opinion for a unanimous court.

Posted On: 3/26/2007