Background
On May 22, 2025, the Prescott Valley Town Council approved Ordinance No. 2025-954, conditionally rezoning certain real property from residential to industrial. Citizens for Sensible Development (the “Committee”) sought to refer the Ordinance to a popular vote. When the Committee’s representatives visited the Town Clerk’s office on May 28, 2025 to obtain a serial number for their referendum petition, they filed a single-page application but—according to the Town Clerk’s office staff—did not attach a copy of the Ordinance as required by A.R.S. § 19-111(A). The Committee then collected enough signatures to qualify the referendum for the ballot.
Bruce Evans sued under A.R.S. § 19-122(C), alleging the application failed to strictly comply with § 19-111(A) and that all petition signatures were therefore invalid. After a one-day bench trial, the Yavapai County Superior Court credited the testimony of the Deputy Town Clerk and an administrative specialist—both of whom stated the Committee filed only one page without the Ordinance—over the Committee’s contrary witnesses. The court permanently enjoined the referendum from appearing on any ballot. The Committee appealed, arguing both that it had in fact complied and that strict compliance with § 19-111(A) was unconstitutional as applied.
The Committee also pointed to the superior court’s use of the word “concomitantly” to argue the court had invented an unlawful requirement that the Ordinance be submitted at the precise moment of filing. The court of appeals rejected that characterization, noting the argument had been raised for the first time in a stricken amicus motion for reconsideration and was waived, and that in any event the lower court’s findings simply reflected that the Ordinance was never filed at all.
The Court’s Holding
The Arizona Court of Appeals affirmed the injunction on both grounds. On the factual question, the court found substantial evidence supported the superior court’s credibility-based finding that the Committee never included the Ordinance with its application. The Deputy Town Clerk and the administrative specialist both testified to filing only a single page; the scanned copy placed on the Town Clerk’s desk omitted the Ordinance; and the fact that the Town Clerk handed the Committee a copy of the Ordinance on the very same day made it implausible the Committee had brought its own copy to file. Because the Ordinance was never filed, the Committee did not strictly comply with § 19-111(A), and harmless-error analysis is unavailable under the legislature’s express strict-compliance mandate in A.R.S. § 19-101.01.
On the constitutional question, the court held that § 19-111(A) was not unconstitutional as applied. The Committee presented no evidence that attaching a copy of an ordinance to a serial-number application imposed any burden—let alone an unreasonable one—on its ability to exercise the referendum right. Relying on the standard from Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3 (1972), the court reiterated that a statute survives an as-applied challenge so long as it “reasonably supplements and does not unreasonably hinder” the referendum right. The requirement of attaching the ordinance text cleared that bar easily; as the court noted, quoting appellee Evans, “[t]he ‘burden’ of strict compliance would have involved about ten seconds and perhaps a paper clip.”
The court also rejected the Committee’s argument that the Arizona Supreme Court’s decision in Voice of Surprise v. Hall, 255 Ariz. 510 (2023), had signaled an invitation to bring exactly this kind of as-applied challenge. The court read that opinion as merely observing that the referendum proponent there had not raised a constitutional argument—not as suggesting such a challenge would succeed. The court further declined the Committee’s invitation to adopt a utility-based standard that would effectively replace strict compliance with substantial compliance.
Key Takeaways
- Under A.R.S. § 19-111(A) and the strict-compliance mandate of § 19-101.01, a referendum serial-number application that omits a copy of the measure to be referred is fatally defective; the omission cannot be excused as harmless error regardless of whether anyone was actually confused about which ordinance was at issue.
- An as-applied constitutional challenge to a referendum procedural requirement requires affirmative evidence that compliance imposed an unreasonable burden on the proponent’s ability to exercise the referendum right; speculation about what might have happened had the clerk rejected the application for a different deficiency is insufficient.
- Arguments raised for the first time in a motion for reconsideration—or through an amicus brief—are waived and will not be considered on appeal, particularly when the amicus’s motion was itself stricken by the trial court.
- This decision is non-precedential under Arizona Rule of the Supreme Court 111(c) and may be cited only as authorized by that rule.
Why It Matters
The decision reinforces the stringent procedural landscape for referendum efforts in Arizona municipalities. By refusing to graft a harmless-error or utility test onto the strict-compliance framework, the court makes clear that referendum proponents bear the full risk of application defects from the moment of filing—there is no opportunity for after-the-fact correction once the petition circulation period has run. Attorneys advising referendum committees should treat every checkbox in § 19-111(A) as an absolute prerequisite, not a directory formality.
The court’s treatment of the as-applied constitutional challenge is also instructive for future litigants. The decision synthesizes the limited circumstances in which such challenges have succeeded—direct conflict with the Arizona Constitution or practical impossibility of compliance—and signals that courts will not expand that narrow category to accommodate arguments grounded in the futility or low utility of a requirement. The burden remains squarely on the referendum proponent to demonstrate that a statutory procedure unreasonably hinders the constitutional right, and mere knowledge by all parties of the measure’s identity will not satisfy that burden.