(Update) Lawsuit to challenge the initiative to bankrupt the City of Tucson


Posted by AzBlueMeanie:

On August 16, 2013, Judge James E. Marner ruled in the case of Yolanda Parker et al. v. City of Tucson et. al. (C20134029), the lawsuit to challenge the sufficiency of the initiative petitions filed by the
Committee for Sustainable Retirement, the local front group for ballot
initiative activist Paul Jacob and the
Liberty Initiative Fund. You can read the 13 page Findings of Fact and Conclusions of Law ruling

Judge Marner disqualified a large number of signatures. The Tucson City Clerk was ordered to remove invalid petition sheets
and to recalculate the number of signatures eligible for verification
and submit the appropriate number of signatures in the form of random
sample to the Pima County Recorder's Office by no later than August 23, 2013. Upon receipt of the newly calculated error rate, the Tucson City Clerk
was to recalculate the projected number of valid signatures as mandated by
A.R.S. §19-121.01 and certify the initiatve as either qualified or
disqualified to appear on the ballot.

Counsel for the
Committee for Sustainable Retirement, Lisa Hauser, filed a Motion For Stay and Motion For
Reconsideration on August 22, 2013. You can read the motion Here.

A hearing of the Motion for Reconsideration was scheduled for Wednesday, August 28, 2013. The Court further ordered "that counsel for the City of Tucson contact
counsel for the Pima County Recorder's Office to determine the
Recorder's position on recalcualting an error rate, and if the Recorder
intends to recalculate the error rate, when this is expected to occur.
The Recorder is also to appear at the hearing."

Counsel for the parties appeared telephonically at the August 28, 2013 hearing. Counsel for the City of Tucson advised the Court that "based upon this Court's August 16, 2013 ruling, it is the city's calculation at this point that 5,651 is the number of remaining valid signatures after substracting the signatures disqualified by this Court." See the August 28, 2013 Minute Entry Order.

The Arizona Daily Star, in an online article, reported that "the City Clerk’s Office determined a total of 5,651 signatures were invalidated by Marner’s earlier ruling."  Pension
dispute almost settled today
. The Star also reported:

If the same percentages were applied from the previous random sample,
said plaintiff’s attorney Roopali Desai, the initiative would have
around 500 more signatures than the minimum 12,730 required to make it
on the ballot.

Since it appeared the initiative is likely to have a sufficient number
of signatures, Desai said, the plaintiffs were willing to drop their
appeal and let the initiative move forward.

I would take this to mean the plaintiffs challenging the initiative are conceding that after recalculation of valid signatures by the County Recorder the initiative will have a sufficient number of signatures to be certified for the ballot. (This was not reflected in the Minute Entry Order).

But the parties to this lawuit complicated matters by filing an appeal and cross-appeal to the Court of Appeals in the interim (Case. No. 2 CA-CV 2013-0118). As Judge Marner indicated in his August 28, 2013 Minute Entry Order, this divested the Superior Court of jurisdiction until the parties withdraw their appeals.

Here is the latest from the Court of Appeals. On August 28, 2013, pursuant to the plaintiff's Stipulation for Dismissal of Cross-Appeal Without Prejudice, it was
"ORDERED: The above-entitled cross-appeal is dismissed, without prejudice." That same day Lisa Hauser, counsel for Appellants, filed a Motion to Stay Preliminary Injunction During Pendency of Appeal.

On August 29, 2013, Appellee's Counsel filed a Response to Appellant's Motion to Stay Preliminary Injunction During Pendency of Appeal. The Court of Appeals conducted a stay conference that same day, and

Appellant’s Motion to Stay is held in abeyance subject to the
following orders.
FURTHER ORDERED: Staying this appeal and revesting jurisdiction in the
trial court to conduct any and all further proceedings necessary to
enter a final appealable order regarding the legal sufficiency of the
initiative “as soon as possible” pursuant to the provisions of A.R.S. §
19-122(c), which shall include authority to vacate the court’s
injunction entered August 16, 2013.
FURTHER ORDERED: In the event the trial court has not entered a final
appealable order as noted above by 5:00 p.m., Tuesday, September 3,
2013, jurisdiction shall be revested with this court.
FURTHER ORDERED: Vacating the Rule 8.1 Scheduling Conference scheduled
this date.
FURTHER ORDERED: The parties are directed to provide a status report on
Wednesday, September 4, 2013. 

So, the Court of Appeals has sent this case back to Judge Marner, who will likely enter a final order on Tuesday, September 3, 2013 (because Monday is Labor Day). It is not on the calendar. It appears the parties may stipulate that the initiative to bankrupt the City of Tucson (Prop. 201) has enough valid signatures to be certified for the ballot. Stay tuned.


  1. I’m confused, which is correct: that the petition has only 5000+ VALID signatures (i.e. not nearly enough), or that 5000+ signatures were INVALIDATED (making the remaining amount enough for the petition to go to the ballot)?

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