No More Distortions, Just the Facts

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Sedona, AZ (December 16, 2011) – In a Letter to the Editor in the Red Rock News and circulated on the internet, Serge Wright  makes the case that Councilor Hamilton is pushing a  lawsuit to challenge the constitutionality of Proposition 411, which was passed in the November 9, 2011 election.

At the Sedona City Council meeting held November 10, 2011, the issue of the constitutionality of Proposition 411 was discussed. Note that citizen approval does not make a law constitutional, no matter what the margin might be. The final decision at the meeting, after discussion with city attorney Mike Goimarac and members of the city council, was that the new law is indeed unconstitutional. Challenging the law at this time would be unnecessary and, if a circumstance does arise in the future, then the law could be challenged. Any challenge to Proposition 411 would be initiated by the city clerk, not by the city council.

It is true that discussion did take place regarding Proposition 411,  however the wording in the letter to the Editor suggests that Council Hamilton and the other councilors pushed for a suit to prove the constitutionality at that time. Not true. Knowing the new law is unconstitutional, the rational question of when or if to challenge becomes a matter of financial necessity and constitutionality. All agreed that a challenge is not necessary at this time.

Mr .Wright needs to remember that it was he, and the Let the People vote on 89a group, that circulated petitions for the referendum vote.  It was their decision to call for the expensive vote.  Reading Mr. Wright’s letter carefully, it appears that he did not fully comprehend the action the council and city attorney took with regard to the conclusion of Proposition 411. One must wonder what Mr. Wright based his comments on, and if he even attended the meeting or watched it on the city’s cable channel.

The following are the legal arguments for the unconstitutionality of Proposition 411:

First, the constitutional references:  Article 4, Part 1, Section 3 of the Arizona State Constitution gives the state legislature authority to submit a measure enacted by the Legislature to the people for a public vote on the matter.   By contrast, Section 8, Part 1 of the Constitution, which deals with city, town and county issues, does not give such authority to those bodies to refer an item to the voters.

Thus a measure such as Ballot Measure 411, which directs the City Council of Sedona to refer any future matter regarding a transfer of any state highway to the voters for a decision prior to the Council taking action on the issue, is not authorized by the state Constitution.  That’s the basis that makes 411 unconstitutional.

The fact that Measure 411 is contrary to what is authorized by the Arizona Constitution and cannot be implemented is further confirmed by the Arizona Municipal Election Manual, the document published by the Arizona League of Cities and Town to guide city clerks in the rules for conducting elections.

The contents of this manual are based on the state constitution and Arizona statutes.  The manual interprets the contents of these documents for city clerks as they apply to local elections.

Chapter 4, page 47 of the current edition of the manual says:  “The council may not voluntarily submit a measure to the people in the absence of a referendum petition …   This prohibition means that the council cannot refer an ordinance to the people in the absence of a referendum petition. “

Since Measure 411 requires the city to submit a measure to the people in the absence of a referendum petition, it is contrary to this provision of the Municipal Election Manual.  The Manual is compiled in accordance with the state constitution, court rulings, state statutes and other interpretations regarding elections.

Regardless of what Measure 411 says, whether it is or is not incorporated into the City Code and what the voters decided or by what margin, it cannot be implemented because state statutes and the state constitution trump local ordinances or measures whether enacted by voters or by the City Council.

Serge Wright mislead voters during the recent referendum regarding the legality of Measure 411 and continues to do so.  Mr. Wright is simply wrong in saying that the city can or implying that the city must follow its dictates.  That is merely wishful thinking on his part and ignores the facts, what is allowed by the state constitution and the direction given in the Municipal Election Manual and in state statutes.

The Council and individual council members have been advised by legal council that the Measure 411 is unconstitutional and contrary to the direction given in the Election Manual for conducting local elections.  Yavapai County Elections Department is the designated authority for conducting city-wide Sedona elections.  They are responsible for preparation, ordering and testing of all ballots.  They use the state’s Municipal Election Manual as a guiding document as do cities and towns.

The county would likely refuse to conduct an election if a future City Council attempted to hold one based on Measure 411, especially when informed of the constitutional and Election Manual direction that such an election, in the absence of a referendum petition, is not permitted.

Their preference is that cities, upon becoming aware that a rule involving a local election is unconstitutional or not supported by law, take the necessary steps to have the rule dismissed by court action so the county Elections Department is not placed in an enforcement role.

Each Council member, upon taking office, both swears and signs an oath that they will support the constitution and laws of the State of Arizona.  That oath does not say they get to pick and choose what parts of the constitution they will uphold nor what laws they will follow.  They swear to support them all.  They give their word as their bond to us all that they will follow the law and represent us in a legal manner.   Council members thus have an obligation to follow that oath and act when confronted with items that are contrary to what it requires.

Chapter 4, page 47 of the current edition of the manual says:  “The council may not voluntarily submit a measure to the people in the absence of a referendum petition …   This prohibition means that the council cannot refer an ordinance to the people in the absence of a referendum petition. “

Since Measure 411 requires the city to submit a measure to the people in the absence of a referendum petition, it is contrary to this provision of the Municipal Election Manual.  The Manual is compiled in accordance with the state constitution, court rulings, state statutes and other interpretations regarding elections.

Regardless of what Measure 411 says, whether it is or is not incorporated into the City Code and what the voters decided or by what margin, it cannot be implemented because state statutes and the state constitution trump local ordinances or measures whether enacted by voters or by the City Council.

The county would likely refuse to conduct an election if a future City Council attempted to hold one based on Measure 411, especially when informed of the constitutional and Election Manual direction that such an election, in the absence of a referendum petition, is not permitted.

Their preference is that cities, upon becoming aware that a rule involving a local election is unconstitutional or not supported by law, take the necessary steps to have the rule dismissed by court action so the county Elections Department is not placed in an enforcement role.

Council members, having been informed that Measure 411 is unconstitutional and counter to the state Election Manual directions, are also faced with another issue.

Mr Wright, please stop misleading people and tell the truth.

Editor