June 15, 2005 - The more than year-long effort to refer an Oro Valley economic development agreement to a public vote came to a halt June 13 when the town decided none of the referendum petitions would be forwarded to the county recorder.
But lawyers representing Stop Oro Valley Outrageous Giveways, the group seeking the vote, say the battle is not over.
Members of SOVOG submitted petitions to Town Clerk Kathi Cuvelier on May 20 at the town hall, which were accepted temporarily until Cuvelier had a chance to verify the signatures.
But on May 23, Cuvelier realized there could be a problem with the petitions, because none of the sheets that residents had signed were attached to the ordinance the group is seeking to refer, as required by Arizona law.
Under the same election laws, Cuvelier is required to forward all qualified petitions to the county recorder within 15 days of issuing the initial receipt.
Cuvelier wrote to Pima County Recorder F. Ann Rodriguez on June 8 to tell her that if she were to comply with the election law statutes and forward the petitions within the state-mandated time frame there would be no qualified petitions to turn over.
Oro Valley Governmental and Community Affairs Administrator Bob Kovitz said the letter was a formality that needed to be written because no petitions would be forwarded at this time but could be forwarded in the future if the court were to order them accepted without the ordinance.
SOVOG is an Arizona political committee funded by Oro Valley residents and, in large part, by Bashas', Fry's and Safeway, three grocers with stores in Oro Valley. The group was seeking to refer an economic development agreement made between the town and the Phoenix-based development company Vestar to a pubic vote. The deal is to share tax revenue generated from a 100-acre open-air shopping development over the next 10 years, to the tune of an estimated $23.2 million.
Whether the citizens of Oro Valley can vote on the economic development agreement has been a subject of debate since the group first brought petitions to the town in May of last year. At the time, then Town Attorney Mark Langlitz advised Cuvelier that the economic development agreement struck between the town and Vestar was not a referable issue because it was an administrative act, not a legislative one.
This rejection spurred SOVOG to sue the town in Pima County Superior Court, where the judge sided with the town in its decision. But SOVOG decided to appeal and, in February, won its case. The superior court then issued a mandate to Cuvelier instructing her to process the petitions.
In a judgment pursuant to the appeals court mandate, and dated May 4, Judge Jane Eikleberry ordered Cuvelier to "accept and transmit" the petitions and submit them to the recorder for verification. Town Attorney Melinda Garrahan said she believes Cuvelier and Susan Goodwin, the attorney advising her, needed to weigh what the court mandate directs and what election law directs in their decision-making process.
Goodwin, of the Phoenix law office of Curtis, Goodwin, Sullivan, Udall and Schwab, filed a motion in Superior Court asking that Eikleberry clarify her motion to accept the petitions.
In the motion, Goodwin writes that under "normal circumstances" when a referendum petition is filed with the town and the measure being referred is not attached to the signature sheets, the clerk would not accept those signatures, "however, in light of this Court's Mandate, the Town Clerk is not clear about the proper course of action to be followed, and, therefore, requests clarification from the court," the motion states.
Goodwin called choosing between following the statutes and complying with the court order "an impossible choice to make."
According to the motion, the attorneys representing SOVOG, Monty Greek and Jeffery Goulder, sent a letter to the town asking that Cuvelier forward the petitions to the recorder or risk further legal action, including being held in contempt. This request was based on the court's mandate, the fact the signature sheets had holes in the upper left corner that are consistent with that of staple marks, indicating, according to SOVOG representatives that the measure had once been attached, and an affidavit of circulators that states that when circulated the referendum had a copy of the measure attached.
A hearing was held June 13 with Superior Court Judge John Davis, during which lawyers representing SOVOG and Vestar made their arguments regarding acceptance of the petitions.
Davis determined that, "Based on the record before this Court, which contains no factual record to support any claim, this court finds that there is no position to clarify or modify the orders previously entered by Judge Eikleberry; therefore, it is ordered that the defendants' Motion for Clarification of Judgment is denied."
According to Kovitz, this means is that the original judgment, ordering the town clerk to process the petitions stands.
"Since none of the petitions meet the legal requirements, the Town Clerk will be forwarding a total of zero petitions to the Pima County Recorder," Kovitz wrote in an e-mail response June 13.
When reached June 13 at his home, Chet Oldakowski, a SOVOG spokesperson, said the group had no comment on this most recent turn of events and was awaiting direct word from the town regarding its position on the petitions.
Goulder, one of SOVOG's attorneys, said if it is the position of the town not to accept the petitions, "then we don't have any other choice than to file another lawsuit."
He said while the town argued there was a conflict between the state election law and the court order, they do not believe that is the case. He said the appeals court decision stated that the people of Oro Valley were to be allowed to vote on the isse.
And he said it is his position that the petitions submitted to the town are valid.
"Even if they weren't valid, and it's our position that they were, this should have been raised when we litigated the case the first time," he said.
It was the position of the town that the original litigation had only to do with whether the agreements were referable, and not with the validity of the signatures, according to the motion for clarification, which was why Cuvelier was seeking clarification.
According to the letter to Rodriguez, Cuvelier said the court's order was "ambiguous" and she was unsure about whether she was ordered to forward the petitions as submitted or if she was to weed out the petitions that did not comply with the law before sending them on.
"Acting in an abundance of caution, I hereby advise you of the filing of this referendum petition," Cuvelier wrote, stating that if the court determines that the signature sheets are to be forwarded in spite of their lack of attachment of the measure the town will comply with that decision and send the petitions.