SUPREME COURT OF ARIZONA 

En Banc 

CHRIS FLEISCHMAN, a registered ) Arizona Supreme Court 

voter in the City of Phoenix, ) No. CV-06-0333-AP/EL 

KATHY ROEDIGER, a registered ) 

voter in the City of Phoenix, ) Maricopa County 

ALFREDO GUTIERREZ, a registered ) Superior Court 

voter in the City of Phoenix, ) No. CV 2006-013116 

 ) 

 Plaintiffs/Appellees, ) 

 ) 

 v. ) O P I N I O N

 ) 

PROTECT OUR CITY, a political ) 

organization, ) 

 ) 

 Defendant/Appellant, ) 

 ) 

MARIO PANIAGUA, in his official ) 

capacity as City Clerk of the ) 

City of Phoenix; HELEN PURCELL, ) 

in her official capacity as ) 

Recorder of Maricopa County, ) 

Arizona; KAREN OSBORNE, in her ) 

official capacity as Director of ) 

Elections of Maricopa County, ) 

Arizona; and DON STAPLEY, FULTON ) 

BROCK, ANDREW KUNASEK, MAX ) 

WILSON and MARY ROSE WILCOX, in ) 

their official capacities as ) 

Members of the Board of ) 

Supervisors of Maricopa County, ) 

Arizona; MAYOR PHIL GORDON, in ) 

his official capacity as Mayor ) 

of the City of Phoenix; DAVE ) 

SIEBERT, PEGGY NEELY, PEGGY ) 

BILSTEN, TOM SIMPLOT, CLAUDE ) 

MATTOX, GREG STANTON, DOUG ) 

LINGNER and MICHAEL JOHNSON, in ) 

their official capacities as ) 

Members of the City Council of ) 

the City of Phoenix ) 

 ) 

 Defendants. ) 

__________________________________) 

 
2

Appeal from the Superior Court in Maricopa County 

The Honorable Janet E. Barton, Judge 

AFFIRMED

________________________________________________________________ 

PERKINS COIE BROWN & BAIN P.A. Phoenix 

 By Charles A. Blanchard 

 Rhonda L. Barnes 

 Colin P. Ahler 

And 

ALTSHULER, BERZON, NUSSBAUM, RUBIN & DEMAIN San Francisco, CA 

 By Stephen P. Berzon 

 Danielle E. Leonard 

And 

ROUSH, MCCRACKEN, GUERRERO, MILLER & ORTEGA Phoenix 

 By Daniel R. Ortega, Jr. 

Attorneys for Chris Fleischman, Kathy Roediger, 

and Alfredo Gutierrez 

AHWATUKEE LEGAL OFFICE Phoenix 

 By David L. Abney 

Attorneys for Protect Our City 

GARY VERBURG, PHOENIX CITY ATTORNEY Phoenix 

 By Larry F. Felix, Assistant City Attorney 

Attorneys for Amicus Curiae City of Phoenix 

________________________________________________________________ 

B A L E S, Justice 

¶1 The legislature has directed, as a matter of general 

law, that once petition signature sheets are filed in support of 

a ballot measure, “no additional petition sheets may be accepted 

for filing.” Ariz. Rev. Stat. (“A.R.S.”) § 19-121(B) (2002). 

Consistent with this mandate, we hold that municipal laws that 

allow the filing of supplemental signatures in support of local 

ballot measures are invalid. This opinion explains the reasons 
3

for our order dated January 12, 2007, which affirmed the 

superior court’s judgment barring an initiative from appearing 

on the ballot for a City of Phoenix election. 

FACTS AND PROCEDURAL BACKGROUND 

¶2 Protect Our City (“POC”) proposed a City of Phoenix 

initiative measure concerning the enforcement of federal 

immigration laws. On July 6, 2006, POC filed initiative 

petition sheets containing 21,297 signatures with the City 

Clerk. The initiative required 14,844 valid signatures to 

qualify for placement on the ballot. See Ariz. Const. art. 4, 

pt. 1, § 1(8) (signatures from fifteen percent of the qualified 

electors of the city are needed to propose an initiative); see

also A.R.S. § 19-143(A) (2002) (number of signatures from 

qualified electors is calculated based on number of votes cast 

at last preceding election for mayor or city council). The City 

Clerk determined that only 14,160 of the signatures submitted 

were valid and therefore issued a certificate of insufficiency. 

¶3 POC then submitted 1,275 supplemental signatures 

pursuant to chapter XV, section 3(D) of the Phoenix City Charter 

(“Charter”) and section 12-1102(a)(2) of the Phoenix City Code 

(“Code”). These municipal provisions authorize a one-time 

supplementation of signatures if the City Clerk deems an 

initiative petition insufficient for lack of valid signatures. 

Charter ch. XV, § 3(D); Code § 12-1102(a)(2). The supplemental 
4

signatures must be filed within ten days of the filing of the 

certificate of insufficiency. Charter ch. XV, § 3(D); Code § 

12-1102(a)(2). 

¶4 After determining that enough of the supplemental 

signatures were valid, the City Clerk certified the initiative 

for the ballot. Fleischman, Roediger, and Gutierrez (the 

“challengers”) then brought an action in superior court pursuant 

to A.R.S. § 19-121.03(B) (2002) challenging the Clerk’s 

certification. 

¶5 The superior court concluded that the City Charter and 

Code provisions conflict with A.R.S. § 19-121(B) and are invalid 

insofar as they allow the filing of supplemental signatures. 

Because POC lacked sufficient signatures without its 

supplemental filing, the superior court ruled that the 

initiative could not appear on the ballot. 

¶6 POC timely appealed to this Court. We have 

jurisdiction pursuant to Article 6, Section 5(3), of the Arizona 

Constitution and A.R.S. § 19-121.03(B). 

DISCUSSION 

A. Jurisdiction 

¶7 We invited the parties to address whether this Court’s 

jurisdiction over this appeal is exclusive or concurrent with 

that of the court of appeals. When jurisdiction is concurrent 

and an appeal is initially filed with this Court, our long-
5

established practice has been to transfer the case to the court 

of appeals. Perini Land & Dev. Co. v. Pima County, 170 Ariz. 

380, 382, 825 P.2d 1, 3 (1992); Ariz. Podiatry Ass’n v. Dir. of 

Ins., 101 Ariz. 544, 549, 422 P.2d 108, 113 (1966). In election 

matters, when there is concurrent appellate jurisdiction, “[i]n 

the ordinary course, appeals . . . should be to the court of 

appeals. If special circumstances exist that require that this 

Court hear the appeal directly, a motion for transfer may be 

filed under ARCAP 19.” Hancock v. Bisnar, 212 Ariz. 344, 346 

n.3 ¶ 7, 132 P.3d 283, 285 n.3 (2006). 

¶8 Section 19-121.03(B) provides that in actions 

challenging the certification of signatures for a ballot measure 

“[e]ither party may appeal to the supreme court within ten 

calendar days after judgment.” Another statute, however, more 

generally affords appellate jurisdiction to the court of appeals 

“in all actions and proceedings originating in or permitted by 

law to be appealed from the superior court, except criminal 

actions involving crimes for which a sentence of death has 

actually been imposed.” A.R.S. § 12-120.21(A)(1) (2003); see 

also id. § 12-2101(B) (2003) (allowing appeals to court of 

appeals from final judgments entered in superior court). Thus, 

the issue is whether § 19-121.03(B) gives this Court 

jurisdiction exclusive of that which otherwise exists in the 

court of appeals under its general jurisdictional statutes. 
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¶9 We dealt with a similar issue in Perini. There we 

held that this Court and the court of appeals have concurrent 

jurisdiction over referendum appeals under A.R.S. § 19-122(C). 

170 Ariz. at 382, 825 P.2d at 3. In actions challenging the 

legal sufficiency of ballot measures, § 19-122(C), which has not 

been amended since 1992, provides that “[e]ither party may 

appeal to the supreme court within ten days after judgment.” We 

held that this language, which predated the creation of the 

court of appeals in 1964, did not give this Court exclusive 

jurisdiction, “[i]n light of the broad appellate jurisdiction 

vested in the court of appeals.” Perini, 170 Ariz. at 382, 825 

P.2d at 3 (citing Ariz. Podiatry, 101 Ariz. at 547, 422 P.2d at 

111). Absent any expressed intent to give this Court exclusive 

jurisdiction, we did not interpret the statutes vesting 

appellate jurisdiction in this Court as limiting the 

jurisdiction that A.R.S. §§ 12-120.21(A)(1) and -2101 separately 

vest in the court of appeals. See id. 

¶10 This case involves A.R.S. § 19-121.03(B), which 

addresses challenges to the certification of ballot measure 

petition signatures. Much like the statute involved in Perini, 

it provides that “[e]ither party may appeal [the superior 

court’s decision] to the supreme court within ten calendar days 

after judgment.” Id. Section 19-121.03(B), however, was 
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enacted after the legislature created the court of appeals.1

 

Nonetheless, as in Perini, the constitutional and statutory 

grants of jurisdiction indicate that this Court and the court of 

appeals have concurrent appellate jurisdiction. See 170 Ariz. 

at 382, 825 P.2d at 3; see also Ariz. Podiatry, 101 Ariz. at 

547, 422 P.2d at 111. 

¶11 As we explained in Arizona Podiatry, “[i]t has long 

been a general rule of law that a grant of jurisdiction to one 

court does not, in the absence of an express provision to that 

effect, imply that the jurisdiction is to be exclusively vested 

in that court.” 101 Ariz. at 548, 422 P.2d at 112. Thus, 

unless the legislature has made clear that our jurisdiction is 

exclusive, our appellate jurisdiction is concurrent with that of 

the court of appeals. 

¶12 There are very few instances in which this Court has 

been granted exclusive jurisdiction. The first is over “causes 

between counties.” Ariz. Const. art. 6, § 5(2) (providing for 

“original and exclusive jurisdiction” in this Court over such 

matters). We also have exclusive jurisdiction over death 

penalty appeals, as A.R.S. § 12-120.21(A)(1) specifically 

exempts those cases from the jurisdiction of the court of 

 

1

 The language found in § 19-121.03(B) was first enacted in 

1970 as § 19-121.04(B). 1970 Ariz. Sess. Laws, ch. 152, § 8. 

It was renumbered to § 19-121.03(B) in 1973. 1973 Ariz. Sess. 

Laws, ch. 159, § 7. 
8

appeals. Finally, in the context of candidate nomination 

petition challenges, the legislature has specifically provided 

that the superior court’s decision “shall be appealable only to 

the supreme court.” A.R.S. § 16-351(A) (2006) (emphasis added). 

Because § 19-121.03(B) does not similarly provide an express 

grant of exclusive jurisdiction to this Court, we do not infer 

one. See Ariz. Podiatry, 101 Ariz. at 548, 422 P.2d at 112. 

¶13 Consequently, we hold that we have concurrent 

jurisdiction with the court of appeals over appeals taken under 

§ 19-121.03(B). We further reiterate the rule set forth in 

Perini that “[a]lthough we have concurrent jurisdiction with the 

court of appeals[,] . . . a party should file any future action 

[pursuant to § 19-121.03(B)] in the court of appeals.” 170 

Ariz. at 382, 825 P.2d at 3. 

¶14 Under the particular circumstances of this case, 

however, we will exercise our jurisdiction to decide this 

appeal. Each side urges us to do so, and we have not previously 

held that our jurisdiction over this type of appeal is 

concurrent rather than exclusive. It is also important that the 

parties obtain a timely determination whether the proposed 

initiative will be on the ballot for the next city election. 

Finally, this case presents an issue of general importance 

because at least one other city allows the supplementation of 

petition signatures after a determination of insufficiency. See
9

Tucson City Code § 12-59. 

B. Merits 

¶15 The merits of this appeal turn on whether the Charter 

and the Code conflict with A.R.S. § 19-121(B). If a conflict 

does exist, the municipal provisions are invalid. Ariz. Const. 

art. 4, pt. 1, § 1(8); see Union Transportes de Nogales v. City 

of Nogales, 195 Ariz. 166, 171 ¶ 21, 985 P.2d 1025, 1030 (1999). 

¶16 The power of initiative and referendum is reserved by 

the Arizona Constitution to the qualified electors of cities, 

towns, and counties. Ariz. Const. art. 4, pt. 1, § 1(8). The 

Constitution allows localities to “prescribe the manner of 

exercising said powers,” as long as they do so “within the 

restrictions of general laws.” Id. Title 19 of the Arizona 

Revised Statutes sets forth the statutory guidelines for 

initiative and referendum procedures, and § 19-141 (2002) 

specifically addresses these procedures for cities, towns, and 

counties. 

¶17 Before 1991, § 19-141(A) authorized cities and towns 

to establish their own ballot measure procedures, provided they 

were “less restrictive on the right to initiative or referendum” 

than state laws. In the absence of local provisions, Title 19 

would apply. Id. In 1991, the legislature amended the statute 

to establish certain uniform procedures. 1991 Ariz. Sess. Laws, 

3d Spec. Sess., ch. 1, § 21. The amended § 19-141(A) reads: 
10

“The provisions of this chapter shall apply to the legislation 

of cities, towns and counties, except as specifically provided 

to the contrary in this article.” Thus, unless Title 19 

specifically permits a city to depart from the general laws, the 

city has no power to do so. 

¶18 The local provisions at issue are chapter XV, section 

3(D) of the Phoenix Charter, and § 12-1102(a)(2) of the Phoenix 

City Code. The Charter provides: “Any initiative petition 

certified insufficient for lack of the number of signatures 

required by the constitution may be amended once by filing a 

supplementary petition within ten days of the filing of the 

certificate of insufficiency.” Likewise, the Code states: 

“Within ten days after the filing of the certificate of 

insufficiency additional signatures properly verified may be 

filed, but no further supplementation thereafter shall be 

permitted.” 

¶19 The relevant state law, A.R.S. § 19-121, sets forth 

the procedure for filing statewide initiative and referendum 

petitions. It provides, in pertinent part: “For purposes of 

this chapter, a petition is filed when the petition sheets are 

tendered to the secretary of state, at which time a receipt is 

immediately issued . . . . After the issuance of the receipt, no 

additional petition sheets may be accepted for filing.” Id. § 

19-121(B) (emphasis added) (footnote omitted). This provision 
11

applies to local ballot measures pursuant to § 19-141(A), which 

also directs that the duties required of the secretary of state 

for statewide elections shall instead be performed “by the city 

or town clerk” for municipal elections. 

¶20 The Charter and the Code provisions directly conflict 

with § 19-121(B). While the state statute expressly prohibits 

the filing of additional petition sheets following the issuance 

of the receipt, the Charter and the Code allow the 

supplementation of signatures under certain circumstances. 

Therefore, unless Title 19 specifically authorizes cities to 

establish their own procedures in this area, these local 

provisions are invalid. 

¶21 POC argues that such authorization comes from § 19-

141(D). This section provides: 

The procedure with respect to municipal and county 

legislation shall be as nearly as practicable the same 

as the procedure relating to initiative and referendum 

provided for the state at large, except the procedure 

for verifying signatures on initiative or referendum 

petitions may be established by a city or town by 

charter or ordinance. 

Id. (emphasis added). The Charter and the Code provisions, POC 

contends, constitute part of the local signature verification 

process, and thus no conflict exists. 

¶22 POC urges us to impart a meaning to § 19-141(D) that 

its language does not support. Both state and city laws 

distinguish between the filing of petition signature sheets and 
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the procedures for verifying submitted signatures. Under state 

law, A.R.S. § 19-121 outlines the procedure for filing signature 

sheets. “[A] petition is filed when the petition sheets are 

tendered” to the filing officer, a receipt is then issued 

“immediately,” and thereafter “no additional petition sheets may 

be accepted for filing.” Id. § 19-121(B). The process for 

verifying submitted signatures, in contrast, is separately 

governed by A.R.S. §§ 19-121.01, -121.02, and -121.04 (2002), 

which provide that filed signature sheets will be verified by 

the relevant county recorder. 

¶23 Consistent with A.R.S. § 19-141(D), Phoenix has opted 

to have the City Clerk, rather than the county recorder, verify 

signatures on petition sheets. The City’s procedure for 

verifying signatures appears in City Code § 12-1108. If the 

verification process indicates that insufficient signatures have 

been submitted, the Clerk issues a “certificate of 

insufficiency” and the ballot measure proponent is then allowed 

additional time in which “additional signatures properly 

verified may be filed.” Id. § 12-1102(a)(2) (emphasis added). 

Thus, the City Code also distinguishes the filing of signature 

sheets from the procedure for verifying the signatures. 

¶24 The legislature has directed that the general laws 

governing the procedures for ballot measures shall apply to 

municipalities and counties “except as specifically provided to 
13

the contrary” in state law. A.R.S. § 19-141(A). The general 

laws bar the filing of additional petition sheets after the 

initial filing. Id. § 19-121(B). The legislature has not 

authorized municipalities to accept supplemental signatures by 

authorizing cities and towns to establish the “procedure for 

verifying signatures” for ballot measures, § 19-141(D). Such a 

procedure contravenes § 19-121(B). 

¶25 We therefore hold that chapter XV, section 3(D) of the 

Phoenix City Charter and § 12-1102(a)(2) of the Phoenix City 

Code conflict with A.R.S § 19-121(B). The city provisions are 

invalid insofar as they allow the filing of supplemental 

signatures after the initial filing of a ballot measure 

petition. 

¶26 The challengers request an award against the City of 

their attorneys’ fees on appeal pursuant to A.R.S. § 12-2030(A) 

(2003). This statute directs the award of fees in favor of 

private parties who prevail in actions to compel public officers 

to perform duties imposed upon them by law. We deny the 

request for fees because this appeal involves a challenge under 

A.R.S. § 19-121.03(B) to the City Clerk’s completed 

certification rather than a mandamus action under A.R.S. § 19-

121.03(A) to compel the Clerk to perform a certification. 

CONCLUSION

¶27 For the foregoing reasons, we affirm the judgment of 
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the superior court enjoining the placement of the initiative on 

the ballot. 

 _______________________________________ 

 W. Scott Bales, Justice 

CONCURRING: 

_______________________________________ 

Ruth V. McGregor, Chief Justice 

_______________________________________ 

Rebecca White Berch, Vice Chief Justice 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

Andrew D. Hurwitz, Justice