Legal Corner: The League's Legal Support to Cities and Towns

Christina Estes-Werther, League General Counsel

One of the services the League provides is the filing of amicus curiae briefs to support issues of importance to cities and towns. Amicus curiae is Latin for "friend of the court" and an amicus brief seeks to provide unique information or a broader perspective of the issues before the court from a person or organization that is not a party to the case. Court rules dictate the process of filing an amicus and in most cases, electronic filing is required by the courts.

Since 1960 the League has submitted approximately seventy amicus curiae briefs on various municipal issues including authorization of general obligation bonds, methods of establishing highways, roads and streets, exercising eminent domain powers, use of public rights-of-way, and the authority of charter cities to conduct elections.

When a request is made to the League for submittal of an amicus brief on behalf of a city or town, the League staff review the case filings and often consult with an amicus committee comprised of seven city attorneys. Final approval rests with the League Executive Director and officers. In 2015 the League filed amicus briefs in two cases at the Arizona Court of Appeals. This article will provide an overview of these two cases and the League's interest on behalf of cities and towns.

Kelley Rollings, Trustee of the Rollings Trust v. the City of Tucson, Court of Appeals, Division 2, No. 2 CA-CV 2014-0069

In 2002 Kelley Rollings ("Rollings") filed a complaint against the City of Tucson for claims of trespass, nuisance, and negligence alleging that water had escaped from the city's underground water lines and damaged the Rollings' historic adobe buildings. The city prevailed following a jury trial and Rollings appealed, arguing an error in a jury instruction.

On December 24, 2007, the Court of Appeals agreed with Rollings that the instructions were ambiguous and reversed the ruling on the nuisance and trespass claims. Following a 2013 retrial at the superior court, the jury awarded approximately $2.9 million to Rollings for property damage and restoration costs in addition to the loss of rental income.

The city appealed to the Court of Appeals arguing that the trial court erred in the final jury instructions by omitting the element of intent for trespass and nuisance, a necessary element to prove these claims. Without the intent component, the city was being subject to a strict liability standard for delivering potable water. Additionally, the city argued that a separate jury instruction improperly shifted the burden to the city to prove the specific damages caused by other sources of water.

On February 24, 2015, the League filed an amicus brief focusing on the broad impact to all cities and towns if a party was not required to demonstrate the element of intent in trespass and nuisance claims. The brief drew attention to the consequences of the decision - cities and towns would be required to regularly unearth miles of underground water delivery pipes to proactively inspect for leaks that may not exist. The alternative is to risk substantial damages such as Rollings had been awarded. Either method utilized by the municipality would result in exorbitant financial costs. The amicus brief strongly encouraged the Court of Appeals to consider the critical nature of potable water delivery to the community and the impact on municipalities.

Both parties filed reply and answering briefs and in May 2015, the Court of Appeals vacated the trial court decision and remanded for a third trial. The court agreed with the city's arguments that the trial court erred by omitting the intent requirement from the claims and giving the instruction relating to the apportionment of damages.

As of September 24, 2015, the Rollings' request for reconsideration has been denied by the Court of Appeals, and Rollings has petitioned for review to the Arizona Supreme Court.

Peoria Citizens Committee In Opposition to Passage of Ballot Measure For Ordinance No. 2014-08, Referendum Serial No. Ref 14 v. City of Peoria, Court of Appeals, Division 1, No. 1 CA-CV 15-0270 EL, No. 1 CA-CV 15-0271 EL (Consolidated)

In February 2014, the Peoria City Council adopted a rezoning ordinance filed by Melcor Developments, Inc. to develop 68.5 acres of land into a single-family residential community. A referendum application was filed on March 26, 2014, by the Peoria Citizens Committee in opposition to the ordinance. Following the petition review process, the city clerk determined the petition did not contain a sufficient number of signatures to be placed on the ballot.

The committee filed a special action in Maricopa County Superior Court challenging the determination. After an evidentiary hearing in May 2014 and subsequent trial court minute entries, the Clerk recalculated the signatures and submitted a random sample to the Maricopa County Recorder for verification. The clerk certified that there were a sufficient number of signatures to qualify the referendum for placement on the ballot.

Melcor Development Inc., as an Intervenor, appealed the ruling, and separately filed an action challenging the certification of the referendum petition. The committee has also appealed arguing that the clerk misapplied the law when removing certain petition sheets and signatures and is seeking mandamus relief. The city has argued the clerk's actions were based on proper adherence to statutory and local referendum laws and there is no basis for a mandamus claim.

On September 17, 2015, the League filed an amicus brief primarily addressing the committee's mandamus claim against the city. A mandamus action seeks monetary relief based on the failure of an official to perform a mandatory duty and the committee alleges the clerk failed in her duty by refusing to transmit certain petition sheets to the county recorder for verification. Despite the trial court denying the committee's mandamus claim and stating that the clerk performed her duty, the committee revived this issue on appeal.

The amicus brief emphasized the important work by Arizona's city clerks as the gatekeepers of the election process and highlighted the importance of consistently applying all state and local election laws. Of great consequence to all cities and towns is the committee's argument that the clerk's lawful application of the law can later be used against the city if the court allows the rehabilitation of petition sheets or signatures based on evidence not available to the clerk. The League's brief discussed the uncertainty this created for all municipal clerks in the normal course of their duties and the financial implications to cities and towns if mandamus relief is granted to a party based on the court's acceptance of supplemental proof that is not legally required at the time of the clerk's initial review. The brief encouraged the Court of Appeals to affirm the trial court's ruling and deny mandamus relief since the clerk followed the law and properly performed her duties.

The committee has the option to file a response to the amicus brief before a decision is rendered by the Court of Appeals.


For decades, amicus briefs have been submitted by the League on behalf of cities and towns for legal issues that significantly impact municipalities. The League will continue to monitor and provide updates on these two pending cases and share information about amicus curiae briefs filed in the future to support cities and towns. Please contact me with any questions relating to the League's process for reviewing and filing amicus briefs or information about these specific cases.

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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