Wennerstrom v. City of Mesa

821 P.2d 146, 169 Ariz. 485, 98 Ariz. Adv. Rep. 8, 1991 Ariz. LEXIS 117
CourtArizona Supreme Court
DecidedOctober 24, 1991
DocketCV-91-0068-AP
StatusPublished
Cited by27 cases

This text of 821 P.2d 146 (Wennerstrom v. City of Mesa) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wennerstrom v. City of Mesa, 821 P.2d 146, 169 Ariz. 485, 98 Ariz. Adv. Rep. 8, 1991 Ariz. LEXIS 117 (Ark. 1991).

Opinions

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

Marilynn Wennerstrom (plaintiff) sought to compel the City of Mesa (City) and the Mesa City Clerk (Clerk) to continue processing several referendum petitions. She appeals the trial court’s denial of her request. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and A.R.S. §§ 19-122(C) and 19-121.03.1

FACTS

On March 9, 1987, the Mesa City Council (Council) passed a resolution calling for a bond election. At that election, held on April 28, 1987, the Mesa electorate ap[487]*487proved the City’s request for authorization to issue and sell $30 million of general obligation bonds for the purpose of improving the City’s streets and highways.

On September 17, 1990, the Council passed a resolution “conceptually approving” the widening of a portion of Country Club Drive from five to seven lanes “with alignment as indicated by staff.” Country Club Drive is a north-south roadway running through Mesa. It is also part of State Route 87.

Shortly thereafter, plaintiff applied to the Clerk for a referendum number and received number 90-02. After obtaining signatures, plaintiff delivered the 90-02 referendum petitions to the office of the Clerk, Barbara Hogue, on October 16 and 17,1990. Under A.R.S. §§ 19-121.01 and - 141, the Clerk’s duty upon receipt is to count the signatures within 48 hours and issue a temporary receipt if the number of signatures equals or exceeds the constitutionally-required number. The Clerk issued a temporary receipt.

A.R.S. §§ 19-121.02(A) and -141(A) direct the Clerk, after issuing a temporary receipt, to select and forward a random sample of 5% of the signatures to the county recorder for verification. Instead, the Clerk returned the petitions to plaintiff’s residence with a letter signed by her and the City Attorney stating that no “certification” of the signatures would be sought because the Council’s conceptual approval of the street widening was not legislation and, therefore, not subject to referendum. Plaintiff immediately filed a complaint in the superior court seeking an order to compel the Clerk and the City to continue processing the petitions. See A.R.S. § 19-122(A).

A few weeks later, on November 5, 1990, the Council passed two additional resolutions concerning Country Club Drive. The first approved a project providing for “the alignment and the improvement of Country Club Drive from Broadway to a point north of McKellips Road,” and “the improvement of McKellips Road from Country Club Drive west to the future intersection with the proposed Red Mountain Freeway” (the' Project). This resolution also authorized Mesa to acquire rights-of-way for these improvements. The second resolution authorized the City Manager to execute an intergovernmental agreement with the state to share the cost of the Project.

On December 4,1990, a coalition of Mesa citizens called Stop Over Spending (S.O.S.) submitted two separate sets of referendum petitions to the Clerk’s office. The first set, bearing referendum number 90-03, sought to refer the November 5,1990, resolution that approved the Project. The second set, bearing referendum number 90-04, sought to refer the resolution that authorized the City Manager to execute an intergovernmental agreement with the state. The Clerk issued a receipt indicating that she had received the 90-03 and 90-04 referendum petitions.

On December 6, 1990, plaintiff, who was a member of S.O.S., together with other representatives of S.O.S., visited the Clerk’s office, apparently to obtain a temporary receipt. Instead, they received a letter from the Clerk and the City Attorney stating that the 90-03 and 90-04 petitions would not be processed because the resolutions involved were not subject to referendum for the same reasons previously outlined in their October 18, 1990 letter to the plaintiff. Plaintiff then amended her complaint to include allegations concerning the City’s inaction with respect to the 90-03 and 90-04 referendum petitions.' The amended complaint thus sought an order compelling a referendum on three resolutions: (1) the conceptual approval of September 17,1990; (2) the Project approval of November 5,1990; and (3) the November 5, 1990, authorization for the City Manager to execute an intergovernmental agreement to share the Project’s cost.

The trial court held that the three Council resolutions were not subject to referendum because they were not legislative actions. Plaintiff appealed the trial court’s ruling concerning the September 17 conceptual approval resolution and the November 5 Project approval resolution, but did not appeal the trial court’s ruling on the intergovernmental agreement resolution.

[488]*488We set an accelerated briefing and argument schedule on this appeal and heard oral argument on April 12, 1991. On May 7, 1991, we issued an order affirming the trial court decision and stating that an opinion would follow. This is that opinion.

QUESTION PRESENTED

Whether the Mesa City Council’s resolution of September 17 (conceptual approval) or the resolution of November 5, 1990 (Project approval) were legislative acts subject to referendum.

DISCUSSION

I. The Scope of the Referendum Power

The Arizona Constitution reserves the powers of initiative and referendum to the people. Ariz. Const, art. 4, pt. 1, § 1. The initiative allows qualified electors to propose legislation. Id. § 1(2). The constitutional referendum power has two forms. The first form permits the legislature to refer a legislative enactment to a popular vote. Id. § 1(3). The second form, and the one we consider here, permits qualified electors to circulate petitions and refer to a popular vote legislation which has been enacted by their elected representatives. Id.

The Arizona Constitution also reserves the referendum power to the qualified electors of municipal corporations:

The powers of the Initiative and the Referendum are hereby further reserved to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which such incorporated cities, towns, and counties are or shall be empowered by general laws to legislate. Such incorporated cities, towns, and counties may prescribe the manner of exercising said powers within the restrictions of general laws. Under the power of the Initiative fifteen per centum of the qualified electors may propose measures on such local, city, town or county matters, and ten per centum of the electors may propose the Referendum on legislation enacted within and by such city, town, or county.

Ariz. Const, art. 4, pt. 1, § 1(8) (emphasis added).

In the trial court, plaintiff, acting pro per, initially argued that all city council actions are subject to referendum. Municipal corporations, however, act in several capacities: legislative, executive, administrative, and quasi-judicial. See 5 E.

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Bluebook (online)
821 P.2d 146, 169 Ariz. 485, 98 Ariz. Adv. Rep. 8, 1991 Ariz. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wennerstrom-v-city-of-mesa-ariz-1991.