The Town of Payson has provided a Verified Answer and Counter Claim.  The firm of Titus Brueckner prepared the Answer, and Pierce Coleman prepared the Verified Counter Claim.   A full copy of the Answer and Counter Claim is below in .pdf format.  A response is required to be filed soon.  When that occurs, a copy will be posted.

Some general observations regarding the Answer and Counter Claim.  On the Answer, it appears that most allegations are denied.

The affirmative defense includes the following. There is no authority under Arizona law to refer matters to the people.  The Town of Payson (TOP) asserts that the State does not allow the grant of authority that does not previously exist.  We disagree.

The flowchart/process, as it were, goes like this:

• Citizens hold authority (Divine right, sovereign man, the foundation of a democratic system, etc.)
• The State of Arizona enshrines/codifies authority in the State Constitution.
• TOP enshrines/codifies authority in the Town Charter/Code.
• Proposition 105 was approved in 1998:

Proposition 105 prohibited the Legislature from repealing citizen measures approved by voters and prohibited the governor from vetoing ballot measures.  Technical amendments would be allowed if they further the initiative’s purpose and could be adopted only with a ¾ vote of the entire Legislature.

• Citizens assert authority as allowed under Arizona Constitution and TOP Code.
• 401 and 402 pass – citizens grant authority to TOP as found in the Propositions.
• The TOP adopted and implemented the Propositions.

An affirmative defense is stated that there were an insufficient number of votes cast.  This defense is not discussed in detail.  It seems counter to the election process.  An election is certified and implemented at various levels.  This affirmative defense appears to imply that the election was not valid.  It is unknown if the defense maintains the process was invalid or just the number of votes.  To our knowledge, the passing requirement is 50% plus one, of the valid votes cast during an election.  Arizona Proposition 132, the 60% Vote Requirement for Ballot Measures to Approve Taxes Amendment, was passed in 2022.  It does not seem to apply in this matter.  Keep in mind that the qualifications for the TOP to place an initiative are stricter than the State requirements.  The TOP changed the verbiage setting a higher bar.  We discussed that (here) in February of 2018.  It does not appear the requirement for actual votes during the election was modified.  We look forward to clarification on this defense asserted by the TOP.

In general various agencies are involved in the election process.  Ultimately the votes are tabulated by the County Election Director who is responsible for elections on election day and ballot tabulation.  The Election Director oversees the securing of polling places, hires, trains poll workers, conducts logic and accuracy testing on the equipment, and tabulates the votes.  The Arizona Secretary of State (SOS) is the Chief Election Officer for the State.  It is unknown if the TOP is asserting allegations against the various entities or officials.

This defense appears remarkable.  It seems implausible that the TOP adopted the ordinances after the election and now asserts there were insufficient votes for the election five years later.  If that were the case, why would the TOP enact the Propositions?

There are defenses of “standing” and the TOP is demanding a jury trial. 

The Counter Claim is against the Plaintiffs in the original suit.  This Counter Claim would appear to indicate that the Plaintiffs have standing.  Otherwise, why file a Counter Claim against them if the Plaintiffs have no standing?  The TOP is requesting fees and costs.  Yes, that is correct.  If you disagree with the TOP and assert legal rights, they will seek fees against you.  Fair enough, we are seeking them as well.

It is a bit perplexing that the TOP appears to maintain its position is correct, then brings a Counter Claim to assert its position further.  In some sense, the TOP is seeking validation through the Counter Claim against citizens in the TOP’s stead.  It seems it is as though they have filed suit against themselves.

We are cross-referencing the citations in the Answer and Counter Claim against the citations provided to the TOP Board by Town Legal during the April 12th meeting.  (Update July 20, 2023.  We have completed the cross-reference here. ) We are hopeful the same arguments used to convince the Board of the improper repeal made their way to the court filings.

The PDF is below, as is information about Proposition 105 and the video from April 12^th Board meeting outlining the legal arguments for the improper repeal.  A copy of the Answer will be posted once filed.

The Answer and Counter Claim.

Information on Proposition 105.

The Council meeting of 04/12/23.

The discussion starts at 1:58:21 mark.

The video may not embed; if that occurs, please view it at this link which will open a new window.

These issues matter to all of us.