If government officials threaten to force you from your home because of a zoning violation, should you be able to seek a court order blocking the forced removal? Or must you wait until you are actually homeless to fight back?
That is a question the Arizona Supreme Court could consider next year, in a case out of Sierra Vista that has garnered the attention of the Goldwater Institute and private property advocates across the state.
Among the plaintiffs are several longtime city residents of a mobile home park who filed a lawsuit in early 2021 arguing that city zoning officials should not be allowed to force them to move the recreational vehicles (RVs) they live in and that anti-RV ordinances violate their constitutional rights.
A Cochise County judge and the Arizona Court of Appeals ruled there is nothing that can be done in advance to stop the city from enforcing the ordinance. The lawsuit can only proceed if the city actually moves forward with making the residents leave, according to the court rulings.
The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation took issue with the city’s position as well as the legal reasoning of the judge and appellate court. The organization has filed an amicus (friend-of-the-court) brief asking the Arizona Supreme Court to hear the case which the RVers are appealing.
Timothy Sandefur, attorney for the Institute, notes that prospective injunctive or declaratory relief against a threatened future unconstitutional government act “is a routine procedure.” As such, the amicus brief asks the justices to order the requested injunction to protect the residents.
“This case is like a hypothetical situation in which a plaintiff files a lawsuit for an injunction to prevent a defendant from converting her personal property, or building a factory that will pollute her land, and the superior court tells her the case is unripe because no theft or pollution has yet occurred—before adding, ‘come back after your property has been stolen or ruined,’” Sandefur wrote.
Under city zoning definitions, RVs are considered temporary shelters that are not allowed as permanent residences in a manufactured home subdivision. RVs are, however, permitted as permanent residences in up to 30 percent of the total spaces in a manufactured home park.
The 160-lot Cloud 9 property involved in the dispute is considered a manufactured home subdivision despite being called a mobile home park for decades. In July 2020, a notice of non-compliance gave several residents, including Amanda Root, 30 days to remove their RVs despite the fact most had lived at Cloud 9 for years and did not have funds to move elsewhere.
The city agreed to take no action on the zoning order while attorneys for the residents and the city attempted to resolve the matter. But in February 2021, the city council rejected a proposed amendment which would have allowed Root and the other impacted residents to continue living in RVs at their current locations.
A lawsuit was filed a short time later seeking an injunction preventing the city from enforcing any evictions while the case was litigated. The city’s twofold argument contended the restrictive ordinances related to RVs are constitutional and that there is no legal basis for a court injunction at that time.
Judge David Thorn of the Cochise County Superior Court denied the injunction, pointing out there was no “injury” caused by the threats of enforcement. The Arizona Court of Appeals also passed on hearing the case due to no showing of actual harm, although the appellate court noted there could be harm in the future.
The Arizona Supreme Court will decide in early 2023 whether to hear the case or to leave in place Thorn’s decision that nothing can be done until Sierra Vista officials try to enforce the zoning violations.
Arizona voters can breathe a sigh of relief. On Friday, the Supreme Court handed down its decision on our Free Enterprise Club lawsuit that concluded the radical “Free and Fair” election initiative lacked enough lawful signatures to qualify for the ballot. Securing this legal victory was not an easy feat, and the final days of litigation were far more suspenseful than they should have been.
In fact, the trial court came very close to letting the other side steal victory by initially adopting their lawyer’s rigged methodology to calculate the final number of valid signatures that would have snuck the measure back onto the ballot…
Two voter initiatives will be on the 2022 General Election ballot even though some circulators of petitions in support of those initiatives may not have complied with state law, leading the Arizona Supreme Court to publicly call on Arizona Secretary of State Katie Hobbs to fix her system.
The justices ruled last week that their only option was to allow the Voters’ Right To Know Act and the Predatory Debt Collection Protection Act to be on the Nov. 2 ballot despite the fact some of the signatures used to qualify for the ballot were obtained by circulators who did not comply with the requirements of Arizona Revised Statute 19-118.
“The Court declines to find that the Committee or any individual circulator failed to comply with § 19-118 when the SOS has prevented such compliance,” Chief Justice Robert Brutinel wrote. Doing otherwise, he noted, would “unreasonably hinder” the initiative power granted to voters in the Arizona Constitution.
Circulators are required under ARS 19-118 to register with the Secretary of State’s Office for each initiative effort they are involved with. Part of the registration process includes a notarized Affidavit of Eligibility.
However, the justices would not allow any signature challenges on the grounds of noncompliance with the affidavit requirement. The decision, Brutinel wrote, is that Hobbs’ online “Circulator Portal” is not designed to permit submission of more than one affidavit per circulator.
And it gets worse, according to Brutinel.
“By also refusing to accept manual submission of a hard copy affidavit…the SOS rendered it impossible for circulators to successfully submit a registration application as required by § 19-118…if they had already registered to circulate other petitions,” the ruling states.
Therefore, “any circulators’ lack of compliance with § 19-118 does not invalidate the signatures gathered by these circulators on the record and circumstances before us,” Brutinel wrote, denying a challenge by several groups including Protect Our Arizona, Americans for Prosperity, the Arizona Free Enterprise Club, the Center for Arizona Policy Action, and the Goldwater Institute for Public Policy and Research.
Those groups argued in several election challenges that failure of a circulator to submit the affidavit is grounds for disqualifying all the petition signatures collected by that circulator for that initiative. The same position was argued by Gov. Doug Ducey, who filed an amicus brief in each case along with Arizona Senate President Karen Fann and Arizona House Speaker Rusty Bowers.
Another voter initiative considered by the Arizona Supreme Court last week ended with a different result but still pointed to the problem with being unable to hold circulators accountable for complying with state law.
The case involved the proposed Arizona Free and Fair Elections Act which needed 237,645 validated petition signatures to make the ballot in November. The Arizona Free Enterprise Club cited more than 30 objections including the circulator affidavit issue.
The affidavits did not matter in the end, as the Free and Fair Elections effort fell shy of qualifying for the ballot by roughly 1,500 signatures. Critics of the initiative point out the importance of ensuring the initiative process “strictly complies” with the requirements set out in state law.
To do otherwise, they argue, is to call into question the legitimacy of the process.
Arizona Free Enterprise Club (AFEC) is reveling in Friday’s Arizona Supreme Court ruling affirming that the attempt to get the Arizona Free and Fair Elections Act on the upcoming general election ballot as a voter initiative has failed.
“The ruling today vindicates what we knew all along: the radical Free and Fair election initiative lacked enough lawful signatures to qualify for the ballot,” AFEC President Scot Mussi said after the order was issued under Chief Justice Robert Brutinel’s name. “Arizona voters, the rule of law, and basic math were victorious today.”
What would have been known as Proposition 210 on the 2022 General Election ballot included numerous changes to state law drafted by the Arizona Democracy Resource Center (ADRC Action), such as a ban on legislative election audits and allowing election day voter registration.
AFEC took the lead in opposing the voter initiative, while some elections officials worried making that many hodge-podge changes to election and campaign finance laws at one time would have negative unintended consequences.
AFEC’s legal challenge alleged myriad problems with more than one-half of the 475,290 petition signatures submitted by ADRC Action. It ended with Brutinel’s order affirming Maricopa County Superior Court Judge Joseph Mikitish’s finding that the minimum 237,645 signature threshold was missed by 1,458 signatures.
The outcome is exactly what AFEC’s Mussi predicted. In a series of statements Friday, Mussi called out ADRC Action for the “rigged methodology” the group’s attorneys pushed the courts to use when calculating the number of valid signatures. He said the mathematic gymnastics was intended “to sneak their disqualified measure onto the ballot.”
“Their dubious formula cherry picked data that boosted their numbers, even including signatures that were disqualified by the counties in the random sample,” Mussi said. “None of their formula was rooted in statute or historical precedent and was a Hail-Mary attempt to resuscitate thousands of signatures that simply should not have counted.”
The justices ordered Arizona Secretary of State Katie Hobbs to rescind the prior determination that the initiative had qualified for the ballot.
AZ's Free and Fair Elections initiative would have made elections in AZ neither: it would have wiped away AZ’s important election safeguards and substituted them with radical, #HR1-style policies. 2/5https://t.co/MWNOrt2VFM
On Wednesday, the Arizona Supreme Court invalidated signatures of a ballot initiative seeking to overhaul the state’s election processes, making it unlikely to appear on the November ballot.
Chief Justice Robert Brutinel ruled that Arizonans For Free and Fair Elections, or the Arizona Democracy Resource Center (ADRC) Action, failed to provide a valid mailing address to receive certified mail. Brutinel remanded the case back to the Maricopa County Superior Court to determine how many signatures his order impacts.
Based on the ruling — likely to invalidate tens of thousands of signatures — and sampling rejection rates, it appears unlikely that the initiative will have enough signatures to qualify for the ballot. ADRC Action submitted over 475,000 signatures, and needs just over 237,600 to qualify.
The Arizona Free Enterprise Club (AFEC) challenged the ballot initiative. In a statement to AZ Free News, AFEC President and Executive Director Scot Mussi asserted that the legal victory protected Arizonans from the harms of outside special interests.
“We are very pleased that the Supreme Court affirmed the lower court ruling that Arizonans for Free and Fair Elections failed to gather enough lawful signatures to qualify for the ballot,” said Mussi. “This radical initiative imported 60 different provisions from Washington, D.C. that would have increased fraud, harmed small business, and empowered special interests. They spent over $7 million trying to buy their way onto the ballot, and they failed.”
Breaking News, @azfec WON our lawsuit! The Arizona Supreme Court affirmed the lower court ruling that Free and Fair DID NOT gather enough lawful signatures to qualify their radical election initiative for the November ballot!
The Maricopa County Superior Court’s original ruling reduced valid signatures to about 10,000 short of qualifying for the ballot, which AFEC likened to being “on life support.”
🚨 Big news! The "Arizonans for Free and Fair Elections" ballot initiative is officially on life support after a judge disqualified tens of thousands of signatures, leaving it ~10k short of the ~238k needed to make the ballot. 🙌 https://t.co/JgfesNDZwo
Below are some of Arizonans for Free and Fair Elections’ proposed changes:
eliminate voter ID and proof of citizenship for voter registration
allow same-day voter registration
bar election audits like the most recent one for the 2020 election
raise small business taxes to increase political campaign funding
restore private funding in election administration
require universal vote centers
extend in-person early voting through the day before Election Day
require a court order to rule someone too incapacitated to vote
implement automatic voter registration for driver’s license and state ID recipients, as well as of-age high schoolers
allow curbside voting
allow “nontraditional residential addresses” such as mile markers or “geographic or other identifying features” when registering to vote
restore the permanent early voting list (PEVL)
restore “inactive” voters to “active” status
permit “signature-only” voter registration
allow third parties to register voters
reduce contribution limits
As reported previously, ADRC Action accrued over $7.6 million from a national network of Democratic dark money for this ballot initiative. Their group traces back to a national donor network called “Way to Win,” launched for the purpose of defeating Republicans in response to former President Donald Trump’s 2016 victory.
Way to Win asserted that its $110 million in funding to key states, including Arizona and Georgia, were the reason for the Democrats’ blue wave in 2020. Way to Win’s major sources of funding include George Soros’ Open Society Foundations and family, Stryker Corporation heiress Patricia Stryker, the prominent D.C. consulting firm Arabella Advisors’ Sixteen Thirty (1630) Fund, and the Tides Foundation-backed One Arizona.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
