Opinion
No. 1 CA-CV 14-0176
12-18-2014
EDWARD L. FOSTER, Mayor of the Quartzsite Common Council, Plaintiff/Appellant, v. TOWN OF QUARTZSITE, a municipality; MICHAEL JEWITT, member of Quartzsite Common Counsel; CAROL KELLY, member of Quartzsite Common Counsel; MARK ORGERON, member of Quartzsite Common Counsel; MONICA TIMBERLAKE, member of Quartzsite Common Counsel; NORMA CROOKS, member of Quartzsite Common Counsel; MARY SCOTT, member of Quartzsite Common Counsel; TINA ABRIANI, Quartzsite Town Clerk; and LAURA BRUNO, Quartzsite Town Manager, Defendants/Appellees.
COUNSEL Churchill & LaBenz, Parker By John C. Churchill, Julie A. LaBenz Counsel for Plaintiff/Appellant Curtis, Goodwin, Sullivan, Udall & Schwab, PLC, Phoenix By Patricia A. Ronan, Kelly Y. Schwab, Trish Stuhan Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in La Paz County
No. S1500CV201300115
The Honorable Richard D. Lambert, Judge
VACATED AND REMANDED
COUNSEL Churchill & LaBenz, Parker
By John C. Churchill, Julie A. LaBenz
Counsel for Plaintiff/Appellant
Curtis, Goodwin, Sullivan, Udall & Schwab, PLC, Phoenix
By Patricia A. Ronan, Kelly Y. Schwab, Trish Stuhan
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 This appeal turns on the important but narrow question of whether the phrase "also approved by the mayor" used in Arizona Revised Statutes (A.R.S.) section 19-142(B) (2014) means a mayor must sign an emergency measure passed by a town council as a ministerial act, or whether a mayor has discretion in deciding whether to approve such a measure. Quartzsite mayor Edward L. Foster appeals from a decision finding he was required to sign such a measure as a ministerial act and dismissing his complaint for failure to state a claim. Because the statute does not direct a ministerial act, the decision is vacated and this matter is remanded for further proceedings not inconsistent with this decision.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Given the procedural context of this appeal, this court assumes the truth of all well-pleaded facts alleged in the verified complaint. Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998).
¶2 As the elected mayor of the Town of Quartzsite, Foster also is a voting member of the seven-member Quartzsite Common Council (Council). At a regular meeting on December 10, 2013, the Council considered a resolution to apply for a government loan for a wastewater treatment plant on an emergency basis. A resolution approved as an emergency measure may become immediately operative, while a resolution approved on a non-emergency basis becomes operative 30 days after certain enumerated events. See A.R.S. § 19-142(B). The Council voted 5-1 in favor of the resolution on an emergency basis (with Foster voting against). Because an emergency measure required, among other things, the approval of at least three-fourths of the seven member Council to become immediately operative, the resolution lacked the votes required to become immediately operative. At this same meeting, the Council voted 51 in favor of the resolution as a non-emergency measure (with Foster voting against). After the resolution was approved as a non-emergency measure, Foster alleges he "heard a cry out of the audience of 'Referendum!'" and that "citizens within the community formed a political action committee to put forth a referendum against" the resolution.
¶3 At a special meeting on December 17, 2013, the Council again considered a resolution to apply for a government loan for the wastewater treatment plant on an emergency basis (ER 13-09). As an emergency measure, ER 13-09 states that it "is exempt from the referendum provisions of the [C]onstitution and laws of the State of Arizona." Foster alleges the purpose of this meeting was to "deny the voters of their right to due process of law and, ultimately, to disenfranchise the voters" who were engaging in the referendum process, as indicated by the call for a referendum at the December 10, 2013 meeting. The Council voted 6-1 in favor of ER 13-09 (with Foster voting against). Immediately after that vote, Foster said he "would not approve" ER 13-09, citing A.R.S. § 19-142(B). When ER 13-09 was presented for his signature the next day, Foster wrote "veto" across it and signed and dated it. Later that day, Foster received a letter from the Quartzsite town manager asking him to "sign a clean version of" ER 13-09 and informing him that "failure to sign a clean version of [ER 13-09] by Monday, December 23, 2013 [would] result in the vice-Mayor being required to sign."
¶4 On December 20, 2013, Foster filed a verified complaint against the Town of Quartzsite, the members of the Council, the Quartzsite town clerk and town manager, alleging that proceeding with ER 13-09 as an emergency measure without Foster's approval would violate A.R.S. § 19-142(B). Foster sought injunctive and other relief and he sought and obtained a temporary restraining order (TRO) against defendants prohibiting them from taking any action on ER 13-09.
¶5 Foster moved for a preliminary injunction and defendants moved to dissolve the TRO, deny the application for preliminary injunction and dismiss the action. After oral argument on January 9, 2014, an order issued that same day states
The issue before the Court is whether the term "approved" in A.R.S. § 19-142(B) under the emergency provision gives the Mayor veto authority or that his signed approval merely witnesses the results of the vote on the ordinance.Citing Quartzsite Ordinance No. 11-10 and the Quartzsite Town Council Procedure Policy, the order states that "[n]owhere in the ordinance is a veto power or a line-item veto granted to" the mayor. Because that ordinance defined the duties of the mayor as signing all "enactments passed by the majority of the" Council, the order interpreted A.R.S. § 19-142(B) "to mean that the Mayor is to sign his approval as a ministerial task. The Mayor has exceeded his authority by attempting to veto . . . [ER 13-09] where no such power is granted." Accordingly, the court dissolved the TRO, dismissed the action with prejudice for failure to state a claim and denied as moot the motion for preliminary injunction.
The Mayor asserts that pursuant to the above statute, he is vested with the power to veto any ordinance that is presented for him after the town council votes. The town council argues that the word "approved" under the statute gives the Mayor the ministerial duty of signing off on what took place in the vote.
¶6 This court has jurisdiction over Foster's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-2101(A)(1) and 12-120.21(A)(1).
DISCUSSION
¶7 The sole issue on appeal is the important but narrow question of whether the phrase "also approved by the mayor" as used in A.R.S. § 19-142(B) for emergency measures affords Foster discretion to agree or disagree with ER 13-09, or whether it authorizes only a ministerial duty, meaning Foster had "only one course of action on an admitted state of facts." Kahn v. Thompson, 185 Ariz. 408, 411, 916 P.2d 1124, 1127 (App. 1995). This issue implicates whether ER 13-09 became immediately operative as an emergency measure. See A.R.S. § 19-142(B). This court reviews de novo statutory construction issues. Haag v. Steinle, 227 Ariz. 212, 214 ¶ 9, 255 P.3d 1016, 1018 (App. 2011); Pima Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005).
¶8 The parties rely on various provisions of the Quartzsite Town Code in addressing Foster's authority, including whether he had the discretion to disapprove ER 13-09. The issue raised in Foster's complaint, however, is the effective date of ER 13-09 under A.R.S. § 19-142(B), given that the emergency measure "was not approved by the mayor." The Quartzsite Town Code cannot conflict with that statute or provide guidance in construing that statute, which was enacted by the Legislature. See Ponderosa Fire Dist. v. Coconino Cnty., 235 Ariz. 597, 602 ¶ 22, 334 P.3d 1256, 1261 (App. 2014) (citing cases). Moreover, although it may be that the Quartzsite Town Code is relevant to resolving Foster's claim, it is not relevant to resolving this appeal. The only issue to be resolved in this appeal is whether the phrase "also approved by the mayor" as used in A.R.S. § 19-142(B) affords the mayor discretion or denotes a ministerial act. Accordingly, this court has no occasion to construe the Quartzsite Town Code and expressly declines to do so.
¶9 In arguing that A.R.S. § 19-142(B) authorizes only a ministerial act, defendants cite to case law in other contexts defining "a ministerial duty." Defendants, however, have not shown that the "also approved by the mayor" language of A.R.S. § 19-142(B) is analogous to the directive that "presiding officer[s]" of the Arizona Senate and House of Representatives "must sign all passed bills in open session." Brewer v. Burns, 222 Ariz. 234, 239 ¶ 24, 213 P.3d 671, 676 (2009). Nor have defendants shown how cases they cite -- construing, among other things, statutes governing county boards, rules of criminal procedure or different city charters -- properly set forth the analysis for A.R.S. § 19-142(B). See, e.g., Roylston v. Pima Cnty., 106 Ariz. 249, 475 P.2d 233 (1970) (holding board of supervisors had ministerial duty to consent to appointment of superior court deputy clerk); Birdsall v. Pima Cnty., 106 Ariz. 266, 475 P.2d 250 (1970) (holding board of supervisors had ministerial duty to approve superior court order setting salaries for superior court employees); Mann v. Maricopa Cnty., 104 Ariz. 561, 456 P.2d 931 (1969) (holding board of supervisors has ministerial duty to approve requests of superior court judges to continue employees' employment for one year after age 70); State v. Pena, 25 Ariz. App. 80, 81-82, 541 P.2d 406, 408-09 (1975) (addressing commissioner carrying out authority granted by Ariz. R. Crim. P. 4.1); Williams v. Parrack, 83 Ariz. 227, 230-31, 319 P.2d 989, 990-91 (1957) (construing Phoenix City Charter in context of initiative petition addressing fire department employees).
¶10 No party has cited any case construing A.R.S. § 19-142(B) or the phrase "also approved by the mayor" in any other context. And at oral argument, the parties conceded that they had located no such case. Accordingly, in construing A.R.S. § 19-142(B), the court looks to the language of the statute, which sets forth "'the best and most reliable index of a statute's meaning . . . and, when the language is clear and unequivocal, it is determinative of the statute's construction.'" State ex rel. Montgomery v. Harris, 234 Ariz. 343, 344 ¶ 8, 322 P.3d 160, 161 (2014) (quoting State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007)). "Words and phrases shall be construed according to the common and approved use of the language." A.R.S. § 1-213. As applied, A.R.S. § 19-142(B) delineates the effective date for non-emergency resolutions and emergency resolutions. A non-emergency resolution
shall not become operative until thirty days after its passage by the council and approval by the mayor, unless it is passed over the mayor's veto, and then it shall not become operative until thirty days after final approval and until certification by the clerk of the city or town of the minutes of the meeting at which the action was taken, except emergency measures necessary for the immediate preservation of the peace, health or safety of the city or town.A.R.S. § 19-142(B). By contrast, an emergency resolution
shall not become immediately operative unless it states in a separate section the reason why it is necessary that it should become immediately operative, and unless it is approved by the affirmative vote of three-fourths of all the members elected to the city or town council, taken by ayes and noes, and also approved by the mayor.A.R.S. § 19-142(B) (emphasis added). Various statutory construction principles show that "also approved by the mayor" gives Foster discretion to approve or disapprove an emergency measure.
¶11 First, different statutory terms or phrases are not treated as synonymous unless the context permits no other meaning. P.F. W., Inc. v. Superior Court, 139 Ariz. 31, 34, 676 P.2d 665, 668 (App. 1984). The statute here uses "certification by the clerk" (contemplating a ministerial act) and "approved by the mayor." A.R.S. § 19-142(B). For these phrases to have meaning, "approved" must mean something different than "certification;" to construe the terms as being synonymous would improperly eliminate the difference between the two. See, e.g., Bilke v. State, 206 Ariz. 462, 664 ¶ 11, 80 P.3d 269, 271 (2003) ("The court must give effect to each word of the statute."); Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App. 1983) ("A statute is to be given such an effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant."). Had the Legislature wished for the mayor's action to be ministerial, it could have used "certification," as it did in reference to the clerk's ministerial act, or a similar term such as "sign" or "attest." Because it did not do so, however, the Legislature's choice to use "approved" indicates discretion to approve or disapprove.
¶12 Second, "[i]t is a '"normal rule of statutory construction that identical words used in different parts of the same Act are intended to have the same meaning."'" Obregon v. Indus. Comm'n, 217 Ariz. 612, 616 ¶21, 177 P.3d 873, 877 (App. 2008) (citing cases). The statute here states that non-emergency measures become effective 30 days after "passage by the council and approval by the mayor, unless it is passed over the mayor's veto." A.R.S. § 19-142(B). By referencing passage "over the mayor's veto," this provision contemplates discretion by the mayor in deciding whether to approve a non-emergency measure. By arguing that, in referencing emergency measures, the phrase "approved by the mayor" is ministerial and not discretionary, defendants ask this court to construe nearly identical phrases in the same statute as having different meanings. Such a request is contrary to this statutory construction principle. See Obregon, 217 Ariz. at 616 ¶21, 177 P.3d at 877.
At oral argument before this court, defendants argued that this language did not contemplate discretion by the mayor, citing to A.R.S. § 19-141 and -142(C). Defendants, however, did not press that argument before the superior court or in the briefs on appeal, meaning it is deemed waived. Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386 ¶ 12, 258 P.3d 200, 204 (App. 2011). Even on the merits, defendants have not shown how A.R.S. § 19-141 or -142(C), which do not use the terms "approval" or "approved," mean the phrase "approval by the mayor" as used in the first sentence of A.R.S. § 19-142(B) contemplates a ministerial task.
Defendants argue that omission of the phrase "over the mayor's veto" for emergency measures means "approved by the mayor" should be read differently for emergency measures. That provision indicates that, where applicable, a mayoral veto can be overcome by the council for non-emergency measures but not emergency measures. It does not suggest that the statutory provision regarding mayoral approval should be construed differently depending upon whether the provision is an emergency or a non-emergency measure.
¶13 Third, the statutory construction principle that identical words in a statute are to have the same meaning "is even stronger when the phrase appears within the same statutory sentence." Id. Defendants' argument, however, seeks to construe the identical phrase used twice in the same sentence to mean two different things. Specifically, the statute allows an emergency measure to be effective immediately if, among other things, it is "approved by" a supermajority of a council and "approved by" the mayor. A.R.S. § 19-142(B) (emphasis added). It is beyond dispute that the Council has discretion to consider such a measure; there could be no claim that "approved by" as applied to the Council is a ministerial act. Yet defendants argue "approved by the mayor" appearing later in the same sentence references a ministerial act. Such an argument is squarely contrary to this statutory construction principle. See Obregon, 217 Ariz. at 616 ¶ 21, 177 P.3d at 877.
¶14 Foster purported to "veto" ER 13-09. Defendants argue that A.R.S. § 19-142(B) does not authorize any veto authority ("either absolutely or with a line-item veto") for emergency measures and "does not specifically address, modify or delegate any powers to municipalities or municipal officers." It is true that A.R.S. § 19-142(B) does not authorize Foster to veto an emergency measure and does not provide a mayor authority to veto. The statute does, however, discuss the effective date for measures passed on an emergency and a non-emergency basis. The statute also contemplates that a mayor can either approve or disapprove an emergency measure, which effects the operative date of the measure. As applied, Foster did not approve ER 13-09, meaning it did not become "immediately operative." A.R.S. § 19-142(B).
Defendants also rely on City of Tucson v. Ariz. Mortuary, 34 Ariz. 495, 272 P. 923 (1928), for the proposition that ER 13-09 "is valid without any further action," regardless of Foster's position. City of Tucson, however, did not construe or cite A.R.S. § 19-142(B) and, accordingly, did not address the issue resolved in this appeal. Moreover, in addressing the authority of a mayor pro tempore under a city charter, City of Tucson noted that "one of the most important" powers of a mayor is "approving or disapproving ordinances," 34 Ariz. at 516, 272 P. at 930, a position contrary to defendants' arguments addressing A.R.S. § 19-142(B).
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¶15 Having found that A.R.S. § 19-142(B) gives Foster discretion to approve or disapprove an emergency measure, it cannot be said, as a matter of law, that Foster's complaint fails to state a claim upon which relief may be granted. Accordingly, the order granting defendants' motion to dismiss on that ground is vacated. Although concluding that ER 13-09 did not meet the requirements of A.R.S. § 19-142(B) to "become immediately operative," the record on appeal does not demonstrate whether that measure proceeded as a non-emergency measure or any other post-judgment developments that may be relevant. Moreover, Foster's motion for preliminary injunction has not been heard or decided and defendants have not yet answered the complaint. Accordingly, this court leaves to the superior court's discretion to determine whether any relief requested is moot and the appropriate procedural route to take on remand.
¶16 Foster requests attorneys' fees under A.R.S. § 12-348 and the private attorney general doctrine. Foster fails to show that he is eligible for fees under A.R.S. § 12-348. The purpose of the private attorney general doctrine "is 'to promote vindication of important public rights.'" Arnold v. Ariz. Dept. of Health Servs., 160 Ariz. 593, 609, 775 P.2d 521, 537 (1989) (citation omitted). The doctrine has been applied sparingly in Arizona and "is an equitable rule which permits courts in their discretion to award attorney's fees to a party who has vindicated a right that: (1) benefits a large number of people; (2) requires private enforcement; and (3) is of societal importance." Id. In its discretion, this court denies Foster's request for an award of attorneys' fees on appeal under the private attorney general doctrine. Foster is, however, entitled to an award of his taxable costs on appeal pursuant to A.R.S. § 12-342, contingent upon his compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶17 The phrase "also approved by the mayor" as used in A.R.S. § 19-142(B) for emergency measures affords Foster discretion to agree or disagree with ER 13-09. Having resolved this important but narrow statutory issue, the decision dismissing the complaint is vacated and this matter is remanded for further proceedings not inconsistent with this decision.