Trial update and appearance on KMOG

The trial was completed last Friday, the 19th.  Transparent Payson has always viewed the matter as a question of law, which results in a slightly different trial than many may be familiar with in a civil setting. There was no discovery, no experts, none of that. There are central questions of law that need to be addressed. As a result of the counterclaim by the Town of Payson, there were other issues to resolve.  The following is a brief rundown of the various issues.

Insufficient votes:  As a practical matter, that issue was not addressed and was conceded by the defense.  We were hopeful to learn more about this argument.  It was briefly discussed here.

Standing:  Defense maintains a Transparent Payson 1 and a Transparent Payson 2.  After the propositions were passed, we suspended activity, donated all remaining assets to Payson Community Kids, and stopped filing campaign finance reports.  The website, board members, and chairman remain the same.  Perhaps more important, the taxpayer identification number (EIN) remains the same.  As a practical matter, this is a moot issue.  Co-plaintiff Jeffrey Aal has standing and the matter will proceed.

Legislative vs. Administrative Acts:  In the Town’s defense, this is a fair argument.  Town Council wears many hats.  The cited case, Wennerstrom v. City of Mesa, clarifies that administrative acts can not be referred and are not subject to referendum.  Counsel for Transparent Payson effectively agreed with that.  Some of the case summaries are as follows:

Concluding that “only the [City] Council’s legislative actions were subject to referendum”  Voice of Surprise v. Hall

Describing the two types of referendum measures recognized in the Arizona Constitution, one of which “permits the legislature to refer a legislative enactment to a popular vote”  Cave Creek Unified Sch. Dist. v. Ducey

Where we differ is that the Town’s position is that all potential acts under 401 and 402 are 100% administrative.  They are not.  There is a legislative component.  As administrative acts are not referable, the Town could potentially ignore 401 and 402 on administrative acts and adhere to 401 and 402 on legislative acts.  The Town chose to repeal the Propositions in their entirety.  That is a question for the courts to decide.

Application of Title Nine: This is the question of general law towns vs. charter city towns.  The Town’s position is that general law towns cannot act in the manner required by the Propositions as a matter of law.  In some aspects, this argument appears to be an extension of the argument above.  The larger question is, can citizens direct the Town to act other than as explicitly permitted by Title Nine? That is a question for the courts to decide.

Application of the Voter Protection Act (VPA):  This is the central question.  Voter’s rights are like teeth: You will miss them when they are gone.  The Town opines that the VPA does not apply at any other than the State level.  The Town is not alone in this assessment.  The Town has previously indicated that the VPA may apply to charter cities.  We vehemently disagree.  For a right to be present, it must apply to all citizens evenly.  If it does not, it is not a right.  The issue of the VPA at the local level has never been decided.  The Attorney General’s office has indicated that the VPA applies to charter cities.  They have argued vigorously in defense of the VPA in various cases.  The application of the VPA at the local level is a question for the courts to decide.

The ruling will be delivered soon.  The original opinion from the Court on the injunction indicates we will not prevail.  We apologize that the ruling and opinion were not previously uploaded; they may be found below.  From day one, we anticipated that the Arizona Supreme Court would resolve the matter.  As a practical matter, the ruling from the Superior Court will only determine who files the appeal.  The appeals process is discussed here.

KMOG invited us to discuss the issues on the Rim Country Forum with host former Payson Mayor Kenneth Murphy.  KMOG has always been very gracious with airtime to/for Transparent Payson.  We appreciate the opportunity to provide accurate information.  The local paper has misrepresented outcomes previously.  On October 17th, 2023, the paper reported, “Judge Rules Transparent Payson has no case for Props 401 & 402.” And on January 11th, 2024 the newspaper reported, “The Town has also won a case against Transparent Payson.” Remarkable statements as the trial rulings have not been announced.  Truth in media is essential.

During the KMOG appearance, various current local issues were discussed.  One current issue is “Affordable Housing.”  Two of the three proposals involve the lease of public land, which would fall directly under Proposition 401. One of the proposed projects illustrates the pitfalls of public-private partnerships and the potential for private enrichment.  The file is large and requires compression; we are hopeful the audio quality is good.

KMOG Interview, April 25th, 2024


Currently, Payson has three proposals for affordable housing that utilize federal tax credits to offset development.  Of the three, the presentation by Overland Property Group appears to be the most beneficial to the area.  A brief synopsis of each:

  • Overland Property Group:  General occupancy.  Development of private land, no lease of public land, relies on federal tax credits with no fiscal impact on the Town of Payson.
  • Danco Communities: Senior occupancy. Development of public land that the Town of Payson does not yet own.  Requires the land purchase by the Town of Payson with a lease back rate of $2,000.00 per year for ninety-nine years and reverts to the Town upon completion of the lease.
  • Green Valley Apartments / Payson Regional Housing Development: Unknown occupancy. Requires lease of public land not currently suited to build.  The Town will expend approximately $1,000,000.00 to grade the flood plain area.  The lease allows for a predetermined purchase price of the land from the Town after improvements.

Supporting documents on the “Affordable Housing” issue and further discussion will be posted soon.

Another topic of discussion was citizen or community buy-in on large-scale projects.  Much of the discussion and rancor at the local level could be resolved by simply placing the matters on the ballot.  Our goal is NOT to prevent such projects but to ensure transparency in all negotiations, discussions, and contracts.  If the citizens approve the funding through an election, or if the citizens approve the lease of public land to complete the project, we would support that effort 100%. 

We look forward to the Court’s ruling.  We will update as we can.

Thank you for your continued support.


Court Ruling / Order on Injunction.

101723 judges ruling in injunction


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