The City Attorney's Office Reverses Itself To Help Advance Mayor George Miller's Agenda.
By Dave Devine
SOME 14 YEARS ago, in 1984, then-Mayor Lew Murphy and City Councilman George Miller supported prohibiting city initiatives from being on the ballot in non-city election years.
But now both Murphy and current Mayor Miller are pushing an election-by-ward-only initiative for the city. They want the measure voted on this year, but the next city election isn't scheduled until 1999.
As The Weekly reported on March 5, the dates when city initiative elections can be held is questionable. A literal reading of the Tucson City Charter would seem to require a full 12 months between them.
Back in late 1983, that's exactly what then-Assistant City Attorney Brad Detrick concluded. After he made that determination, both City Clerk Donald DeMent and City Manager Joel Valdez stated that at least 365 days had to pass between city initiative elections.
Detrick's decision was critical in delaying a vote on the proposed Neighborhood Protection Amendment initiative. Community activists supported the idea because it would require a public vote on many major roadway projects in Tucson. The amendment was vigorously opposed by the community's power structure.
But enough valid petition signatures were submitted in March 1984 to require that the amendment be placed on the ballot. In April of that year, however, the City Council determined the election wouldn't be held until November 1985 because the City Charter had the one-year provision.
"Obviously, November 5, 1985, is the logical and (legally) safest time to put it on the ballot," said Murphy, citing advice from the City Attorney's office and city staff.
Despite the earlier ruling, a few weeks ago the City Attorney's office changed its mind. Principal Assistant City Attorney Dennis McLaughlin concluded that the Charter does not require a full 12 months between initiative elections. Detrick, who is now Deputy City Attorney, concurred with the decision.
McLaughlin's memo bases its recommendation on the assumed intent of those who wrote the Charter in 1929. It concludes that what they meant by prohibiting not "more than one (1) special election in any period of twelve (12) months" was actually not more than one such election in each calendar year. Which is a very convenient ruling for Murphy, Miller and the backers of the election-by-ward-only initiative proposal.
Local attorney William Risner calls the conclusion of the memorandum "crapola." He thinks the proper interpretation of the Charter provision is one special election each political year, from November to November. But the city attorneys' couldn't say that because it would have been such an obvious flip from Detrick's earlier decision.
The recent memorandum's only reference to the 1984 incident is contained in a footnote: "Mr. Detrick's one-sentence response became academic. No City initiative petitions were actually presented to the City Clerk in 1984.... Since the issue has never subsequently arisen in concrete form until now, the 1983 memorandum has never been used to stop a City special initiative election that would otherwise have occurred."
The footnote is an interesting historical revision, because on March 7, 1984, almost 21,000 petition signatures requesting a vote on the Neighborhood Protection Amendment were submitted to the City Clerk. On April 9, 1984, the City Council, relying on advice from the City Attorney's office, the City Clerk and the City Manager, scheduled the election for November 1985.
The City Attorney's memorandum also states that its conclusion is "based on statutory analysis, rather than any Arizona legal precedent directly on point." So it does not mention the case of Kromko v. DeMent, et al., which ensued after the City Council vote.
John Kromko, one of those pushing the Neighborhood Protection Amendment, challenged the City Council's decision to postpone the election for 19 months. Kromko hired Risner, who told the Pima County Superior Court that the city's interpretation of the Charter to require a full 12 months between initiative elections was "absurd."
Brad Detrick defended the city's position when he wrote the Court: "The November 5, 1985, date currently set for the initiative election follows the mandate of the Tucson charter and is consistent with the date which would have resulted from application of the appropriate Arizona state law."
Superior Court Judge William Sherrill decided in the city's favor, but not because of the Charter provisions. Instead, he found that the state law concerning initiatives which said they should be held "at the next ensuing election" meant "the next regularly scheduled City election." Thus, he agreed with the City Council's decision to delay the election to November 1985.
The section of state law that Sherrill cited hasn't changed. So if his ruling were followed, the election-by-ward-only initiative shouldn't be voted on until 1999.
But attorneys will tell you that Superior Court decisions don't set precedents. They may be used as persuasion in another lawsuit, but they aren't binding in that case.
Which is also very convenient for Murphy, Miller and the backers of the election-by-ward-only measure. Combined with the new City Attorney ruling on initiative elections, it has opened the way for a vote on the issue this year.
Backers of the initiative still need to gather more than 10,600 valid signatures by July 2. Then the City Council, at its August meeting, will have to decide if it wants to ignore its own history and place the measure on this year's ballot.
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