Payson will appeal Gila County Superior Court Judge Robert Duber's decision last week to throw out more than 1,300 signatures gathered to block a proposed deal between Payson and the YMCA, Mayor Kenny Evans said Monday.
Duber on Friday ruled that the group seeking a referendum on the town's preliminary approval of the lease of five acres park land for the gym and pool complex should have included its position on the referendum in its name "Friends of Payson." Instead, the group checked the box on the application that said it opposed the referendum it actually supported.
Those two mistakes violated state law intended to make sure that people who signed petitions knew the identity and intentions of the people seeking their signatures, ruled Duber.
Evans said the town's legal team felt they had a chance of winning an appeal, although if they lost the appeal they could be ordered to pay the legal costs of the group that sued to block the $40,000 special, mail-in election, slated for Nov. 4.
If the town loses that appeal, the council will have to decide whether it can legally put the issue to a public vote on its own, said Evans. However, a previous court case involving Scottsdale might prevent the council from spending taxpayer money to hold a referendum challenging its own decision.
About 60 people on Friday crowded the small courtroom to listen to the sometimes heated arguments, which turned on the provisions of laws enacted after a host of special interest groups formed committees with misleading names to argue for and against various state propositions.
Friends of Payson hired Prescott Attorney Gil Shaw, who argued that the mistakes on the paperwork filed by the group were so minor they did not mislead petition signers and therefore shouldn't count for more than the right of the more than 1,300 petition signers to have their say in an election. Friends of Payson reportedly paid Shaw $3,000 to argue its case on Friday.
Payson's contract attorney Thomas Irvine argued that the standards should be different when it comes to challenging the statement of organization for a political committee than for challenging referendum petitions. Irvine argued the referendum petitions would have to have "nearly perfect compliance" or be ruled invalid. But the statement of organization was governed by a different statute and the mistakes should be punished with a fine, not by throwing out the signatures, argued Irvine.
The town has spent an estimated $12,000 trying to clear the way for the election that essentially challenges the council's decision. The cost of an appeal could substantially increase that tab.
On the other hand, attorney Jeffrey Murray, arguing for Gile Sievers, a former YMCA official who lives in Payson, argued that the law clearly states that committee names "shall include in the name of the political committee a statement as to whether the political committee supports or opposes the passage of the ballot measure" and that any signatures gathered before the committee files a complete statement of organization are void.
The argument turned on how the court defined "substantial" compliance with that requirement.
The lawyers pushing for the election portrayed the problems as an unimportant paperwork mix-up.
"They identified all of the information you're talking about," said Shaw, "it's just not here above the line in the right place on the application."
Duber said the group clearly could not have spent money pushing the proposition with a generic and unrevealing name like "Friends of Payson," especially when its application indicated it was opposing the referendum it was actually supporting. He said the only remedy available during the signature-gathering stage was to throw out the petitions.
"There is a requirement requiring that identification so that voters knew what you are asking," said Duber. "Otherwise, a signer doesn't know if it is someone in favor or in opposition."
Shaw said applying state Supreme Court cases dealing with groups that deliberately mislead the public would be strict "to the point of absurdity."
"But they're my bosses," said Duber of the appeals courts, "and I am compelled to follow precedent."
Shaw argued the defects in the application were not serious enough "to throw out 1,500 signatures. They have in fact complied with the statute. The statute says nothing about checking a box inadvertently."
But Duber refused to consider one standard for the group when it came to gathering signatures and a different set for spending money to support a ballot measure. "I don't see how I can."
Shaw shot back, "but does the somewhat imperfect compliance throw out the constitutional right to a referendum?"
"I fear you must argue that to an appeal court or the Supreme Court and not to me," said Duber, reasoning that he was bound to follow court rulings in previous, similar cases.
Murray, the town's attorney, added "None of the case (precedents) say ‘absolute, perfect compliance. This is pretty near perfect compliance."
Thomas argued "there is not ‘near perfect' compliance if they ignored a whole statute. The court is compelled to follow the statute." He said even if the group in this case meant well, upholding the provisions of the law would prevent a group from deliberately trying to confuse and mislead voters and getting away with it the next time around."
Judge Duber agreed and asked Thomas to draft an injunction, run it past the other attorney, and submit it to the court by Tuesday, Aug. 19 for his signature.
The town or the Friends of Payson could then file an accelerated appeal, since the issue has to be resolved within about two weeks in order for the issue to get on the Nov. 4 ballot.