WHO IS TO BLAME FOR THE FAILED REFERENDUM?
The Lawsuit
On March 4, 2024, the political action committee, Reclaim Our Town ( ROT), filed a lawsuit against the Town of Fountain Hills and eight individual defendants: Mayor Dickey; the six council members; and Linda Mendenhall, the Town Clerk. The lawsuit brought by ROT arises out of the failed referendum initiated by ROT which, had it been successful, would have put the issue of whether the change in zoning to allow for the proposed redevelopment of the Four Peaks Plaza was appropriate.
ROT printed the forms used to collect the signatures necessary to place the issue on the November ballot. The front side of the form provided space for the signatures and addresses of those supporting the Referendum Petition. The back side of the form provided for verification by the circulator that the individuals whose signatures and addresses were shown on the front of the sheet had signed the petition in their presence and that the circulator believed that the information provided was correct.
In Arizona, a Referendum Petition is assigned a distinct number. In this case, the Referendum Petition was assigned the number: REF2024-01. Under Arizona law both the front side and the back side of the signature sheets must include the number assigned to that Petition.
The number printed on the front side of the signature sheets circulated by ROT was correct. The number on the back side of the sheets, REF 2019-01, was not correct. It appears that the erroneous number used on the back side was assigned to the successful initiative to overturn the Town Council’s approval of the Daybreak Project, a proposed multifamily rental complex.
In the lawsuit ROT alleges that Ms. Mendenhall, in her official capacity, wrongfully and illegally determined that the signature sheets submitted by ROT did not comply with the requirements of state law because the Referendum Number on the back of the sheet did not refer to the correct Referendum Petition.
ROT is seeking “Injunctive Relief,” a legal remedy that amounts to an order entered by the Judge instructing a person or a party to refrain from taking a specific action or to perform a specific action. Specifically, ROT is asking the court to issue a Writ of Mandamus, an order by a court directed to a government official, to properly fulfill their official duties. In essence, ROT has asked the Judge to order Ms. Mendenhall to accept the faulty signature sheets and forward them to the county recorder for certification.
ROT BLAMES THE TOWN CLERK FOR ITS ERROR
After ROT was advised that the signature sheets were not in compliance with state law Ms. Cavanaugh published a post claiming that the Town had been working against the petitioners from the start and faulted the the Town Clerk for “carelessly giving us the wrong form”. Paragraph 18 of the Complaint alleges:
“These petition SERIAL NUMBERS were secured by Lawrence E. Meyers, Treasurer of Reclaim Our Town, from Town Clerk Mendenhall. Town Clerk Mendenhall also provided Meyers with a sample referendum petition sheet. (emphasis added)”
This allegation is interesting and deceptive. The use of the plural “serial numbers” implies that Ms. Mendenhall assigned two numbers to the Referendum Petition, when, in fact she assigned only one number: REF2024-01. It is also alleged that Ms. Mendenhall provided Meyers with a “sample referendum petition sheet” when, in fact, she provided a flash drive that included a number of documents.
Paragraph 19 of the Complaint alleges that:
“The referendum petition sheet provided by Town Clerk Mendenhall left a space for the petition serial number on the front of the petition, but on the back of the petition sheet this space was filled in with “REF2019-01” and there was no space for the applicant to place its petition serial number.”
Even if this allegation were true, ROT clearly had both the ability and the legal responsibility to ensure that both sides of the signature sheet were correctly numbered before circulating them. It is absurd to suggest that ROT had no ability to change the number on the back side of the form before printing them because “there was no space for the applicant to place its petition serial number. Twenty seconds and a swipe of “Wite-Out” would have left a clean space for ROT to place the correct number in the correct font size.
But more troubling is the evidence, as recently reported in the media, that the signature sheets were provided to the Petitioners on a flash drive. In response to a Records Request submitted by the Fountain Hills Times, the Town produced a flash drive containing the same documents that were provided to Mr. Meyers. According to the Fountain Hills Times there was no Referendum Petition number on the front of the signature sheet and no Referendum Petition number on the back side of the signature sheet. It should be noted, however, that Crystal Cavanaughdenies that the documents were provided on a flash drive and insists that the Town Clerk provided the erroneously numbered back page.
In assessing the seriousness of ROT’s attempt to blame the Town Clerk for its error it is important to take note of the suggestions on ROT-friendly social media that the Town was engaged in a conspiracy with the Four Peaks Developers to scuttle the Referendum. The allegation in the Complaint combined with with Ms. Cavanaugh’s unwarranted claim that the Town had been working against ROT from the start, and the unfounded rumors of a conspiracy have damaged the reputations of the Town, its officials and its employees.
In the course of this litigation ROT will have the burden of proving that it did not receive a blank back page from the Town Clerk and will be required to produce any documents, including any flash drive, that were given to them. If the documents do not include the sheet with the erroneously numbered back side, there could be serious consequences.
PENALTY OF PERJURY
In Arizona perjury is a crime: ARS §13-2702. Perjury is a Class 4 felony and punishable by up to three years and nine months in state prison. Under the statute, criminal perjury is defined to include: “A false unsworn declaration or statement in regard to a material issue that the person subscribes as true under penalty of perjury.”
The last page of ROT’s Complaint, the “Rule 80 Declaration” required in civil actions, provides:
I declare under penalty of perjury of the laws of the State of Arizona that the foregoing verified Complaint for Special Action is true and correct to the best of my knowledge and belief and that this Declaration is executed by me on the 4th day of March, 2024. In Maricopa County Arizona.
The Declaration is signed by ROT’s president, Crystal Cavanaugh.
WHO IS TO BLAME FOR THE FAILED REFERENDUM?
