A judge has thwarted the latest effort to derail construction of a major league baseball stadium in downtown Phoenix.
Maricopa County Superior Court Judge Jeffrey S. Cates on Monday dismissed two lawsuits that tried to give county voters a voice in whether they should be taxed to build the stadium.
The lawsuits sought initiatives that would have asked voters whether they want to dissolve the Maricopa County Stadium District, which is collecting a half-cent sales tax to build a $284 million domed stadium that will feature a retractable roof.
Cates ruled with prejudice, which means the complaints cannot be refiled in Superior Court.
Ernest Hancock--who chairs the county's Libertarian party and an anti-stadium group known as Taxpayers Against Corporate Welfare--had filed the two lawsuits and acted as his own attorney.
Hancock wanted the court to order Fran McCarroll, clerk of the county Board of Supervisors, to certify his initiative petition and allow him to collect signatures to put the question on the ballot.
McCarroll had refused to certify the initiative on the advice of the Maricopa County Attorney's Office, which argued that only decisions made by the Legislature, counties, cities and towns are subject to initiative or referendum.
Cates agreed with county officials, writing that McCarroll was not mandated to certify the initiative. The judge wrote that the Arizona Constitution "provides that initiative and referendum powers are 'reserved to the qualified electors of every incorporated city, town, and county. . . .' Our Constitution does not extend these powers to municipal corporations or districts."
The catch lies in the legislation that allowed the Board of Supervisors to create the stadium district. When state lawmakers passed the law in 1991, they made no provision for its dissolution--by anybody or any body. The district, once created, seemingly passed into a parallel governmental universe--immutable to actions by either county voters or its creators, the county supervisors.
Consider this passage from the stadium district's motion for dismissal: "The Supervisors have no authority to dissolve the Stadium District. [State law] permits the Board of Supervisors to 'organize' a stadium district. Nowhere is there any provision which provides for dissolution of the district once created. Moreover, once created, all business of a stadium district is performed by a board of directors, not by the county board of supervisors. Therefore, the Maricopa County Board of Supervisors has no statutory authority to dissolve the Stadium District.
"Nor may the Board of Supervisors indirectly dissolve a separate political subdivision of the state by repealing its resolution organizing the district," the district's attorneys added.
Hancock prefers to quote the Arizona Constitution: "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. . . .
"The right of petition . . . shall never be abridged."
Hancock believes the Constitution is on his side, and he intends to appeal Cates' decision to the state Court of Appeals. If higher state courts do not pave the way for an initiative, he says he will seek relief in federal court.
One of Hancock's lawsuits was filed against McCarroll in her role as clerk of the Board of Supervisors. The other lawsuit was filed against McCarroll in her role as clerk of the stadium district. Before dismissing the suits, Cates granted a stadium-district request that the two complaints be consolidated.
Hancock believes that by merging the complaints, Cates failed to answer the question of whether McCarroll could refuse to certify an initiative to overturn a vote by the Board of Supervisors. In fact, Hancock claims, the only way Cates could ignore McCarroll's duties as a county officer was to lump them with her duties as a district officer.
"He can't have it both ways. He combined them, but he only answered one question," Hancock says. "I don't know whether to kiss him or punch him."
Attorneys for the stadium district were unavailable for comment after Cates' ruling was released late Monday.
The Board of Supervisors voted to create the stadium district in 1991. Then in February 1994, sitting as the stadium district board, the supervisors levied a half-cent sales tax (contingent on the awarding of a major league franchise) that will raise $238 million toward construction of the domed stadium.
Taxes for sports facilities have not been popular. Phoenix voters in 1989 overwhelmingly rejected a property tax to finance a baseball stadium.
One poll taken shortly before the stadium district board voted to levy the tax indicated that two thirds of county voters opposed the tax. The board voted 3-1, with one abstention, to impose the tax, anyway.
Cates' ruling ends a string of feeble legal attempts to undo the stadium project.
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The Sun City Taxpayers Association sued in 1994 to force a referendum. But Superior Court Judge Marilyn Riddel threw out that lawsuit, ruling it frivolous, and fined the plaintiffs for filing it. Several other legal challenges filed by individuals also have been quickly dismissed.
Hancock says he had difficulty getting a hearing on his lawsuits, because Superior Court judges kept recusing themselves. A scheduled hearing before Judge B. Michael Dann was canceled after Dann disclosed that he was on a waiting list to become a season-ticket holder for the Arizona Diamondbacks, the pro baseball team that will occupy the stadium.
Hancock vows to continue to oppose the stadium tax--and any other forms of what he considers to be taxation without representation. If the stadium district succeeds, he says, taxes for things such as mass transit, the Rio Salado project, a regional airport and a football stadium could be imposed in the future without threat of initiative.
Hancock believes the public's patience with government is wearing thin.
"Our elected officials and judges don't give a crap what the Constitution says," Hancock says. "This is how revolutions start--and I'm trying to prevent one.