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Arizona City Sanitary District v. Olson - 4/16/2010

Arizona Court of Appeals Division Two Holds that There Need Not Be a Finding That the First Recall Election was Valid Before a Party Seeking a Subsequent Recall Election of the Same Directors May be Required to Pay the Cost of the First One, as Required by Article VIII, part 1, § 5 of the Arizona Constitution and A.R.S § 19-202(B).


In 2008, the Arizona City Sanitary District Recall Committee (the “Committee”) filed recall petitions against three district directors.  The District called a special recall election, and all three directors were retained.  At the end of 2009, the Committee filed an application to conduct a second election to recall the same directors.  The Pinal County Elections Department informed the Committee that A.R.S. § 19-202(B) required the Committee to pay the costs of the previous recall election when it filed the application.  However, at the Committee’s request, the Pinal County Attorney’s office issued a memorandum opining that it would not be in the interest of justice to require the petitioners to pay the costs of the first election.  The Pinal County Board of Supervisors therefore processed the petitions and ordered another special election.  After the County refused the District’s request either to direct the Recall Committee to pay the District the cost of the previous election or to suspend the processing of the recall petitions until that occurred, the District filed the underlying complaint.  The County and Recall Committee each filed counterclaims seeking a declaration that the first election had been invalid and that the Recall Committee was not required under Arizona law to reimburse the District for the cost of that election before it could petition for a second recall election.  The judge denied the parties’ motions for summary judgment, finding that there were material issues of fact as to whether the prior recall petition and election satisfied the requirements of Title 19.  The District immediately sought special action relief from the Arizona Court of Appeals.

The Arizona Court of Appeals accepted jurisdiction and reversed, holding that there were no material issues of fact because the retrospective validity of the recall election is irrelevant to the underlying action.  Arizona courts are obliged to construe the Constitution so as to give effect to the intent of the framers and to construe statutes so as to give effect to the intent of the legislature.  Article VIII, part 1, § 5 of the Arizona Constitution provides, in relevant part, that “[a]fter one Recall Petition and election, no further Recall Petition shall be filed against the same officer during the term for which he was elected, unless petitioners signing such petition shall first pay into the public treasury which has paid such election expenses, all expenses of the preceding election.” Section 19-202 similarly pertains to recall petitions and elections; subsection B of the statute mirrors the portion of the constitutional provision quoted above, except that the statute requires payment be made “at the time of application for the subsequent recall petition.” The Court explained that the plain language of the constitution and the statute unequivocally require petitioners seeking to recall the same officers who were the subject of a previous recall election to pay for the cost of that election before they may seek another one.  The Court determined that, under this plain language, the validity of the previous election is irrelevant to whether the Committee is required to pay the costs of the previous election.  Because the judge had incorrectly determined that there were material issues of fact, the Court held that he had abused his discretion by denying the District’s motion for summary judgment.  

Judge Espinosa authored the opinion; Judges Howard and Kelly concurred.

Posted By: Brandon  A. Hale

Posted On: 4/27/2010