THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

VIRGINIA C. KELLY, Judge.

¶1 In this expedited election appeal pursuant to Rule 8.1, Ariz. R. Civ. App. P., appellants David Devine and David Boston challenge the trial court's denial of their request for a writ of mandamus ordering the Tucson City Clerk, appellee Roger Randolph, to accept their referendum petition. In regard to the narrow issues of law presented to us, we find no error and therefore affirm.1

Background

¶2 On February 28, 2012, Tucson's mayor and city council approved an ordinance creating an urban overlay district and special zoning for the area known as "Main Gate District."2 That ordinance allowed for mixed-use residential and commercial use and included public transportation infrastructure.

¶3 Before the ordinance passed, Val Little, a Tucson resident who opposed the ordinance, went to the Tucson City Clerk's office and was given information about the number of signatures that would be needed to put the ordinance to a public vote via referendum. She also did some online research about referendum rules and regulations. And the City Clerk's office later gave her both a paper and an electronic copy of a sample "Petition for Referendum." Randolph testified that the electronic version was "for formatting purposes" so that a person creating a petition would not have to "create boxes and columns and have the correct spacing" and was "not done for verbiage." And the assistant clerk testified she had informed Little that the electronic version was to "assist her with the spacing of the lines, . . . the margins, and the font size." The Clerk's office also provided Little with an "initiative and referendum packet," which included a copy of the Clerk's office's rules and regulations for referendums and initiatives, a sample "Title and Text" page, excerpts from the city code relating to elections, and an "Initiative, Referendum & Recall Handbook," created by the Arizona Secretary of State.

¶4 On March 1, Little took a draft of her petition, which she had created from the electronic copy, to the Clerk's office for review. The Clerk's office informed her of at least one problem with her petition; some changes were made to the petition, and it was filed later that day. On March 5, the Clerk's office sent Little a letter detailing deficiencies in the filed petition. She corrected some of the additional errors identified by the Clerk's office and filed a revised petition on March 16.

¶5 Three days later, the Clerk's office discovered that the petition lacked "Notice" and "Voter Statement" provisions, which A.R.S. § 19-101(A) requires to be included on a referendum petition. These provisions are as follows:

§ 19-101(A). On March 20, Randolph sent Little a letter notifying her of the missing provisions. The next day Little sent the Clerk's office an electronic mail message stating her political committee, "Repeal the Main Gate Overlay" ("the committee"), was circulating a revised petition that contained the provisions and included a copy of the revised petition. But, 460 signature pages, containing approximately 6,900 signatures, did not have the provisions, and the Clerk's office rejected those pages and the referendum petition.3

¶6 On April 4, 2012, Devine and Boston, who had signed the rejected pages, filed a "statutory special action," asking the trial court to order Randolph to accept the petitions.4 They argued the rejected pages had "complied with the constitutional requirements" set forth in article 4, pt. 1 § 1 of the Arizona Constitution and "[t]he stated reasons for rejection . . . are based on non-substantive statutory window dressing." They further alleged they had "sought the assistance" of the City Clerk and Attorney, "who each misle[]d" them; the sample forms they received from the Clerk's office "contained the very defects cited by the City Clerk in rejecting" the pages; and they had otherwise "relied to their detriment on the assistance of the City Clerk." After a bench trial, the court concluded that A.R.S. § 19-101(A), which required the provisions missing from the rejected pages, applied and that the rejected pages "did not strictly or substantially comply" with its requirements. The court therefore denied Devine and Boston's request for mandamus. This expedited election appeal followed.

Discussion

¶7 On appeal, Devine and Boston first contend Randolph should have accepted their petition because Tucson's "charter and ordinances control the form of city referenda" and, therefore, § 19-101(A) does not apply. We review the applicability of § 19-101(A) de novo. See City of Tucson v. Consumers For Retail Choice Sponsored by Wal-Mart, 197 Ariz. 600, ¶ 4, 5 P.3d 934, 936 (App. 2000).

¶8 Tucson's city charter provides that its provisions for recall petitions apply to referendum petitions, "with such modification as the nature of the case may require." Tucson City Charter, ch. XX, § 1. The charter's provisions for recall petitions, in turn, require that an elector wishing to seek the recall of a public officer may

Tucson City Charter, ch. XXI, § 2.

¶9 Tucson's city code also addresses the form of referendum petitions, requiring that they comply with the rules set forth in the code for initiative petitions.5 Tucson City Code, ch. 12, art. V, § 12-76. Those rules require

Tucson City Code, ch. 12, art. IV, § 12-52. And, as to the form of the petition, the code provides that it "shall be presented upon a petition which has been printed and numbered in the form prescribed by the city clerk." Tucson City Code, ch. 12, art. IV, § 12-53.

¶10 Devine and Boston maintain these provisions and those set forth in article 4, pt. 1, § 1(9) of our state constitution6 control referenda in Tucson, because it is a charter city and is allowed under article 13, § 2 of the Arizona Constitution to "frame a charter for its own government." Quoting Strode v. Sullivan, 72 Ariz. 360, 364, 236 P.2d 48, 51 (1951), Devine and Boston argue the local rules "`supersede all laws of the state in conflict with such charter provisions insofar as such laws relate to purely municipal affairs.'" And, they therefore contend, the state rule embodied in § 19-101(A) does not apply to referendum petitions in Tucson and the pages they signed should have been accepted because they otherwise complied with the Tucson requirements.7

¶11 The provisions of § 19-101(A), however, do not conflict with the charter or code. Nothing in the charter or code provisions requires that a petition include only certain language or prescribes language that would preclude the language required by § 19-101(A). Rather, at most, the charter and code share some "`commonality'" "`of subject matter'" with § 19-101(A), which is insufficient to create a conflict. Consumers for Retail Choice, 197 Ariz. 600, ¶ 6, 5 P.3d at 937, quoting City of Prescott v. Town of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (App. 1989), vacated in part on other grounds, 166 Ariz. 480, 803 P.2d 891 (1990). Thus, § 19-101(A) applies to referendum petitions in Tucson, even absent the city's express adoption of the statute. See A.R.S. § 19-141(A) ("The provisions of this chapter shall apply to the legislation of cities . . . except as specifically provided to the contrary in this article.").

¶12 But even were we to find a conflict as Devine and Boston apparently urge, we would reject their argument that the city's rules control. Although our constitution does allow a city to frame its own charter, Ariz. Const. art. 13, § 2, it also includes specific provisions related to referenda and initiatives, Ariz. Const. art. 4, pt. 1. These more specific provisions control here. See Clouse ex rel. Clouse v. State, 199 Ariz. 196, ¶ 11, 16 P.3d 757, 760 (2001) ("`It is an established axiom of constitutional law that where there are both general and specific constitutional provisions relating to the same subject, the specific provision will control.'"), quoting de'Sha v. Reed, 572 P.2d 821, 823 (Colo. 1977). And, in contrast to the non-referendum cases on which Devine and Boston rely,8 in the referendum context, this court has concluded state statutes control and cities may regulate only to the extent their rules do not conflict with the state constitution and laws. Jones v. Paniagua, 221 Ariz. 441, ¶¶ 9-11, 212 P.3d 133, 136-37 (App. 2009) ("While the Arizona Constitution gives localities broad initiative and referendum powers, when a local law conflicts with a state statute, the local law is invalid."); see also A.R.S. § 9-284(B) ("The charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and laws relating to the exercise of the initiative and referendum and other general laws of the state not relating to cities."); Fleischman v. Protect Our City, 214 Ariz. 406, ¶¶ 15-16, 153 P.3d 1035, 1038 (2007); Consumers for Retail Choice, 197 Ariz. 600, ¶ 15, 5 P.3d at 939 ("[C]ities may enact ordinances regulating the procedure for their referendum petitions, so long as those ordinances do not directly conflict with the referendum statutes and do not unduly impair the constitutional right of referendum.").

¶13 Devine and Boston further maintain that under Tucson's charter and code only substantial compliance with any referendum requirements was required. To the extent they thereby contend Tucson's purported "substantial compliance" standard conflicts with, and should therefore control over, the strict compliance standard our supreme court has imposed on referendum petitions under the Arizona Constitution and statutes, see Feldmeier v. Watson, 211 Ariz. 444, ¶ 12, 123 P.3d 180, 183 (2005), we need not resolve the issue because the rejected petitions here do not meet either standard. Devine and Boston argue the trial court erred in ruling they had "failed to meet the standard of the charter and ordinances." But, they do not explain how complete failure to include the required statutory language could be considered substantial compliance with the requirements of § 19-101(A). See, e.g., Feldmeier, 211 Ariz. 444, ¶ 14, 123 P.3d at 183 ("[I]n the context of the formal requirements for initiatives, substantial compliance means that the petition as circulated fulfills the purpose of the relevant statutory or constitutional requirements, despite a lack of strict or technical compliance."). We therefore cannot say the trial court erred in concluding the rejected petitions did not meet either standard. See Bee v. Day, 218 Ariz. 505, ¶ 8, 189 P.3d 1078, 1080 (2008) (supreme court reviews whether nomination petition substantially complied with requirements de novo). And, in any event, as explained above, to the extent the city and state law standards conflict, the state law requiring strict compliance applies. See Jones, 221 Ariz. 441, ¶¶ 9-11, 212 P.3d at 136-37 ("While the Arizona Constitution gives localities broad initiative and referendum powers, when a local law conflicts with a state statute, the local law is invalid.").

¶14 Finally, Devine and Boston maintain that any noncompliance is excusable because the committee relied on the City Clerk's sample petitions and direction, and the sample forms the Clerk provided do not fully comply with § 19-101(A). "But, it is the challenger's responsibility to comply with the statutory requirements for filing a referendum petition, and the receipt of erroneous advice, even from governmental officials responsible for administering the referendum process, does not excuse that responsibility." Fid. Nat'l Title Co., Inc. v. Town of Marana, 220 Ariz. 247, ¶ 14, 204 P.3d 1096, 1099 (App. 2009). And, in any event, even if we were to accept that the city charter and code provisions giving the Clerk some authority in determining the form of the petition were a basis to depart from the general proposition stated in Fidelity, we would reject any claim of reliance here. The Clerk's office told Little the sample forms were only for formatting, not for substance. And, the record shows the office told her that she was solely responsible for properly preparing the petition. Cf. Freightways, Inc. v. Ariz. Corp. Comm'n, 129 Ariz. 245, 247, 630 P.2d 541, 543 (1981) (reliance reasonable if one not "on notice to make further inquiries"); John C. Lincoln Hosp. and Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶¶ 11, 12, 96 P.3d 530, 535 (App. 2004) (estoppel requires reasonable reliance on affirmative act inconsistent with later position).

Disposition

¶15 For all these reasons, the judgment of the trial court is affirmed.

GARYE L. VÁSQUEZ, Presiding Judge, PHILIP G. ESPINOSA, Judge, concurring.