Generally, all court filings are public records; there are some exceptions for domestic matters.  In Arizona, the actual documents can be accessed via the eAccess portal.  Pay a small fee and get a copy of the document.  S-0400-CV-202400271, Rose vs. Town of Payson, appears atypical in that regard.  The web portal advises contacting the court for more information.  We have.  There is no response just yet. 

Undeterred, we obtained a copy of the Response in Opposition to the Temporary Restraining Order.  The entire document, all 154 pages, is below in .pdf format.  The first fifteen pages are the meat of the matter.  There are several interesting notes.  The sections outline the Town’s defense.

I. INTRODUCTION. The first section details Rose’s failure to comply with the thirty-day requirement and that the ordinance contains a severability clause, so even if the “emergency” is invalid, the balance of the ordinance remains valid.
II. STANDING. The Town argues that Rose lacks standing as she is not a political action committee.
III. MOOTNESS. The Town maintains that signatures were not collected in the required thirty-day window, so the request for TRO is moot. The Town maintains that the thirty-day window has passed even if the emergency was invalid.
IV. ONLY LEGISLATIVE ACTS ARE SUBJECT TO A REFERENDUM. This is a complex argument used by the same firm in the Superior Court hearing for 401 and 402. As a legislative body, it seems self-evident that all acts would be “legislative.” The Town maintains that the bond ordinance “merely carried out the policy and purpose already declared by a legislative body.” The Town’s argument supporting that position are the actions taken with the preceding four uses of the “emergency clause.”  Repeal, repeal, tax, tax, spend.
V. LEGISLATIVE – EMERGENCY CLAUSE PROPERLY INVOKED. The Town maintains that even if the bond ordinance is “legislative” as an emergency, it is not subject to a referendum.
VI. EVIDENCE FOR HEARING. The Town provided the Court with evidence for the TRO hearing. That is the balance of the 154 pages.
VII. BOND. The Town requests Rose post bond for potential damages.
VIII. TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION MUST BE DENIED. Rose has no “strong likelihood of success.”
IX. CONCLUSION. (The Document incorrectly identifies this as VII, page 15, line 23.) The Town restates a request for denial and asks for fees and costs from Rose.

The Response in Opposition to the Temporary Restraining Order was not widely available before the hearing.  If you attended the hearing or watched on YouTube there seemed to be a circular reasoning in the Town’s arguments.  Circular reasoning is commonplace in the political arena.  The Town, by design or happenstance, creates a “catch-22.”  That is, rules, regulations, or procedures that an individual is subject to but has no control over because to fight the rule is to accept it.  Welcome to “catch-22 Payson Style.”  That phenomenon appears in most departments of the Town of Payson.

The YouTube video of the hearing does not appear to be archived.  We encourage you to read the full Town response, found below.  Our review above is insufficient to capture fifteen pages.

Taken in totality, watching the hearing, and with the Response in Opposition to the Temporary Restraining Order, the Town clearly creates a “catch-22 Payson Style.”  Unlike our case, the Town has not yet filed a counterclaim.  The case was filed with the Court on September 10^th.  Let’s assume the Town had some advance notice as a professional courtesy.  Nowhere in the Council Agendas of September 3^rd or the 11^th was there an “Executive Session.”  That may have precluded the filing of a counterclaim as it would likely require Town Council approval.   The question remains: Who authorized seeking “fees and costs.”

We outlined in this post that  Goldwater Institute commented on the potential counter suit.

Additionally, for the Town to threaten its citizens seeking to vindicate their constitutional rights in court is beyond the pale, and likewise unlawful, subjecting the Town to further legal liability.

Seeking fees and costs appears retaliatory and a decision to cause harm to a citizen that should occur at the Council level.  That the request is not in the form of a counterclaim does not change the nature of the request.  By passing the Bond Resolution on August 21^st, we recognize that the Council delegated all bond issues to unknown executors.  Seeking retaliatory harm to a resident does not appear to be in the scope of Resolution 3359.  It does appear consistent with the “catch-22 Payson Style.”  Copies of the agendas are below.

One item of note in the Town’s filing is page 15, line 11, where the Town states:

It is a matter of common knowledge that this year’s presidential election set November 5, 2024, presents uncertainty and volatility to financial markets.  The Town needs to lock in favorable rates now that will ensure the requisite level of proceeds necessary for Town public projects.

We were unaware of that “common knowledge.”  Everything we see points to lower rates after the election, which is discussed here.

At the actual hearing, the Court made a ruling on the issue of the temporary restraining order.  The temporary restraining order/preliminary injunction was denied.  The Court found “no likelihood of success.” A final judgment was not issued at the Gila Superior Court level.  A final restraining order was not issued or denied.  Only the preliminary injunction issue was resolved.  The suit will move forward.  Currently, there is nothing to appeal.  We suspect the case must be noted in the bond prospectus.  The “uptake” of the issuance will be impacted as there are too many offerings without pending litigation.

During the hearing, the Judge, in his own words, called “balls and strikes.”   The Judge stated the question is one of “deference” to the Council’s “emergency decision.”  That was an interesting choice of words.  Many may have heard of the Chevron doctrine from 1984.  If legislation is ambiguous or leaves an administrative gap, the courts must defer to the regulatory agency’s interpretation if the interpretation is reasonable.  That was recently overturned at the Federal level in June of this year.

In Arizona the Chevron Deference has not applied since 2018.  On April 11^th, 2018, Arizona Governor Ducey signed into law H.B. 2238, amending the state’s administrative procedure laws to provide that courts are not required to defer to government agencies, including on constitutional, statutory, and regulatory interpretation matters.  That appears to apply only to agencies and not legislative bodies.  That indicates that the Chambers Court found that Resolution 3359, the bond resolution, is a legislative issue.  In doing so, many questions were resolved.  As a legislative issue, but for the contrived “emergency clause,” the matter would have been subject to a referendum.  IF the Council acted administratively, then the Judge has no responsibility to deference.

Below is a July 2021 Goldwater Institute paper on the issue of deference in the administrative state.

The Court addressed the balance of hardships and public policy, stating that it could not substitute its judgment for the Council’s.  A status was scheduled for Thursday, October 3rd.  The Town requested attorney’s fees and costs.  The Court declined that request, stating there was no apparent basis for fees and costs.

Although we disagree with the order, Judge Chambers appeared well-reasoned and thoughtful.  Our observation was that we did not see the Town stalling resolution.  We suspect the Town of Payson wants to move forward quickly.  The Town wanted a final verdict/ruling to move the matter to Appeal.  That request was taken under advisement by Goldwater.

It appears the Town will proceed with the issuance of the bond.  The stated reason, favorable terms, is negated by the pending suit and the anticipated lowering of rates after the election.  We suspect the Town has been emboldened.  We will not be surprised if there are special meetings, another “emergency” or two, and the execution of several no-bid contracts into the millions before the current Council exits.

We will also not be surprised if the Town of Payson quickly learns that it is playing checkers in a game of chess.

It is never frivolous to challenge the rule of government.  No doubt, some people thought Loving v. Virginia, Brandenburg v. Ohio, Hernandez v. Texas, Obergefell v. Hodges, Bates v. Little Rock, and many others were frivolous.  Rose v. Payson may be limited to Arizona, so not near the impact of those listed, but far from frivolous.  Much of what we take for granted today results from one person filing one suit against one government agency.  We choose to celebrate that ability, not diminish it.

Please support the Goldwater Institute in that fight and celebration of the ability.   Donation | Goldwater Institute

Response in Opposition to the Temporary Restraining Order.

Town Council Agenda September 3rd, 2024.

Town Council Agenda September 11th, 2024.

Goldwater Institute – Ending Deference to the Administrative State in State Legislatures, July 27th, 2021