CXLV - Tempe Entertainment District citizen referendum vote upcoming May 16th

[PredsHead]

OK, so standard disclaaimer - I'm a lawyer but not licensed to practice law in Arizona. What's more I haven't read the Arizona Constitution.

To a layman though this seems pretty ticky-tacky.

Tempe and the Coyotes sign a development deal. This is fine and legal. But Tempe wants a referendum. This sounds like a good idea to me also. I'm sure the opponents to the deal also want a referendum.

The complaint here is 1. That the Coyotes are covering the cost of the referendum. So - is it better that the City has to cover that cost?

2. That the city asked the Coyotes to get enough signatures to call for the referendum. Again - so would it be better to not have the referendum?

One of the first things you need to think about when looking at prospective litigation is "whats your remedy"? Often times when you sue it's to get a judgement - aka money. But you always have to ask yourself if the judgment you receive is worth the time and cost of litigation. One of the most infamous examples (and sports related!) was when the USFL (at the instigation of one Donald J Trump) sued the NFL for anti-trust violations. The USFL won - and was awarded damages of $1.

So here though you wouldn't be seeking damages. In fact what's happened is an Arizona State Rep has written to the Attorney General. But what if the AG says Tempe did break the law. What are they going to do? The vote will have already happened. You can't undo that vote. Order another vote? Try to fine Tempe City Council? Neither seem very realistic.

I am certainly not a lawyer in Arizona or anywhere else for that matter, but I believe this would in theory have a remedy built in. The Coyotes weren't the only group that received enough signatures for a referendum, the opposition did as well. However they were later than the Coyotes in getting their signatures in so the earliest their referendum could be was August 1st. The Coyotes knew this was likely and that it would have been later than the Coyotes and Tempe wanted, thus they proactively required the May referendum as part of the DDA. The August referendum since outside the provision of the DDA was to be paid for by Tempe not the Coyotes. Late last month Tempe City Council canceled that election, so it is no longer on the schedule. I would assume that election could be uncanceled, but not sure. Depending on when they get a ruling back I could see that being an option. If the AG waits until after the election to rule, I agree it would be pretty messy to try and put the genie back in the bottle and just throw out the May vote and try again. I guess the question if it is ruled unconstitutional by the AG would be at what point can you stop a mail-in election without disenfranchising the voters? Do you have to before ballots go out? Before the election day itself? Is there a threshold for ballots returned that marks it? Either way likely to be more lawsuits based off this which ever way this goes.

 

[TheLegend]

I am certainly not a lawyer in Arizona or anywhere else for that matter, but I believe this would in theory have a remedy built in. The Coyotes weren't the only group that received enough signatures for a referendum, the opposition did as well. However they were later than the Coyotes in getting their signatures in so the earliest their referendum could be was August 1st. The Coyotes knew this was likely and that it would have been later than the Coyotes and Tempe wanted, thus they proactively required the May referendum as part of the DDA. The August referendum since outside the provision of the DDA was to be paid for by Tempe not the Coyotes. Late last month Tempe City Council canceled that election, so it is no longer on the schedule. I would assume that election could be uncanceled, but not sure. Depending on when they get a ruling back I could see that being an option. If the AG waits until after the election to rule, I agree it would be pretty messy to try and put the genie back in the bottle and just throw out the May vote and try again. I guess the question if it is ruled unconstitutional by the AG would be at what point can you stop a mail-in election without disenfranchising the voters? Do you have to before ballots go out? Before the election day itself? Is there a threshold for ballots returned that marks it? Either way likely to be more lawsuits based off this which ever way this goes.

An argument could be made in respect to this...

Why is it wrong to for a private entity to pay for a referendum that could overturn a council decision, when said referendum could torpedo what the private entity wanted and already got on a 7-0 vote??

Then again this is Arizona and people do funny things here.

 

[PredsHead]

An argument could be made in respect to this...

Why is it wrong to for a private entity to pay for a referendum that could overturn a council decision, when said referendum could torpedo what the private entity wanted and already got on a 7-0 vote??

Then again this is Arizona and people do funny things here.

It could allow the interested party to have too much sway over the election because they would be paying for it. I understand this is a bit different since the county I believe is actually the one who administers the elections not Tempe itself, but if it was a county election then in theory Meruelo would be paying the county employees to administer his election. They could be doing everything from designing the ballot to being the ones who secure the ballots themselves. That leaves a huge risk of impropriety.

This all came from pushback against Zuckerberg donating a bunch of money to local election offices to help get mail-in voting pushed out during 2020, so its pretty new all around. Here is a pretty good write up from a seemingly non-partisan source: Prohibiting Private Funding of Elections

 

[TheLegend]

It could allow the interested party to have too much sway over the election because they would be paying for it. I understand this is a bit different since the county I believe is actually the one who administers the elections not Tempe itself, but if it was a county election then in theory Meruelo would be paying the county employees to administer his election. They could be doing everything from designing the ballot to being the ones who secure the ballots themselves. That leaves a huge risk of impropriety.

This all came from pushback against Zuckerberg donating a bunch of money to local election offices to help get mail-in voting pushed out during 2020, so its pretty new all around. Here is a pretty good write up from a seemingly non-partisan source: Prohibiting Private Funding of Elections

City of Tempe prepared the ballot and subsequent pamphlets though their city attorney. Pamphlets include input from both sides.

All Meruelo is doing is covering Maricopa County's costs to the printing and processing the ballots/pamphlets. He has no input to the content.

 

[PredsHead]

City of Tempe prepared the ballot and subsequent pamphlets though their city attorney. Pamphlets include input from both sides.

All Meruelo is doing is covering Maricopa County's costs to the printing and processing the ballots/pamphlets. He has no input to the content.

Yes but that appears to be possible be in violation of state law which says:
"Notwithstanding any other law, this state and a city, town, county, school district or other public body that conducts or administers elections may not receive or expend private monies for preparing for, administering or conducting an election, including registering voters."

View Document

 

[PredsHead]

Looks like the legislator in question pulled their complaint because Tempe has agreed to pay for the referendum itself and Bluebird was able to show it initiated the referendum request.

 

[TheLegend]

Looks like the legislator in question pulled their complaint because Tempe has agreed to pay for the referendum itself and Bluebird was able to show it initiated the referendum request.

Hmm... for background. Mr. Montenegro has a history. This was 2018.

Like I said... they do funny things in Arizona.

Steve Montenegro admits texts were his; staffer says exchanges were 'detailed and intimate'

Montenegro told the Washington Examiner that he didn’t ask for the topless photo and tried to protect the woman’s career after the incident.

www.azcentral.com

 

[PredsHead]

Hmm... for background. Mr. Montenegro has a history. This was 2018.

Like I said... they do funny things in Arizona.

Steve Montenegro admits texts were his; staffer says exchanges were 'detailed and intimate'

Montenegro told the Washington Examiner that he didn’t ask for the topless photo and tried to protect the woman’s career after the incident.

www.azcentral.com

It apparently got a lot crazier than that.....Montenegro, the Topless Text, and CD8 Race: The Juicy Details Keep Piling Up

But what does that have to do with anything here? It looks like he was correct in Tempe not being able to have Bluebird pay for the election. Kind of a big deal that Tempe has been touting how Meruelo is paying for the election for the last 5 months, then they just effectively remove it from the agreement with no announcement? What else have they changed in the agreement?

 

[TheLegend]

It apparently got a lot crazier than that.....Montenegro, the Topless Text, and CD8 Race: The Juicy Details Keep Piling Up

But what does that have to do with anything here? It looks like he was correct in Tempe not being able to have Bluebird pay for the election. Kind of a big deal that Tempe has been touting how Meruelo is paying for the election for the last 5 months, then they just effectively remove it from the agreement with no announcement? What else have they changed in the agreement?

Nothing. They can't change anything without a public meeting and vote.

Otherwise they'd risk losing the entire deal. Just isn't worth it.

Besides they can make that up elsewhere. It's roughly $313k (last I saw) to administer the election and the city isn't totally broke.

 

[PredsHead]

Nothing. They can't change anything without a public meeting and vote.

Otherwise they'd risk losing the entire deal. Just isn't worth it.

Besides they can make that up elsewhere. It's roughly $313k (last I saw) to administer the election and the city isn't totally broke.

According to Montenegro's letter Tempe realized last week that they would have to pay for the election but didn't do any sort of notification to the voters, were they ever going to let the voter know? Seems pretty shady to be doing something like that the week ballots went out. They apparently have ruled Section 17 of the DDA unenforceable, have they ruled anything else unenforceable?

 

[TheLegend]

According to Montenegro's letter Tempe realized last week that they would have to pay for the election but didn't do any sort of notification to the voters, were they ever going to let the voter know? Seems pretty shady to be doing something like that the week ballots went out. They apparently have ruled Section 17 of the DDA unenforceable, have they ruled anything else unenforceable?

They letter doesn’t say that.

It says Bluebird advised him, in writing, that they initiated the referendum.

Then the city’s legal office told them that the city had no intention to enforce that part of the agreement since there is a clause in the DDA itself that can negate any portion of the DDAif if it shows to potentially destroy the entire DDA.

IOW…. They included a safety provision within the DDA itself to protect it from a situation just like this.

(pretty smart, isn’t it?)

Since the full DDA was posted and freely available for anyone right after the Nov. 29 vote it can already be considered public notice. Tempe will make Mr. Monrtenegro happy by putting in an additional notice on the page where that shows that clause is being put into affect for that.

 

[Llama19]

How to make sense of Tempe's Coyotes deal and where to vote on it

Source: www.azcentral.com/story/news/local/tempe/2023/04/26/tempe-coyotes-deal-election-a-quick-overview-for-voters/70151675007/

 

[Llama19]

According to Montenegro's letter Tempe realized last week that they would have to pay for the election but didn't do any sort of notification to the voters, were they ever going to let the voter know? Seems pretty shady to be doing something like that the week ballots went out. They apparently have ruled Section 17 of the DDA unenforceable, have they ruled anything else unenforceable?

Source: www.tempe.gov/government/economic-development/priest-rio-salado-rfp

 

[PredsHead]

They letter doesn’t say that.

It says Bluebird advised him, in writing, that they initiated the referendum.

Then the city’s legal office told them that the city had no intention to enforce that part of the agreement since there is a clause in the DDA itself that can negate any portion of the DDAif if it shows to potentially destroy the entire DDA.

IOW…. They included a safety provision within the DDA itself to protect it from a situation just like this.

(pretty smart, isn’t it?)

Since the full DDA was posted and freely available for anyone right after the Nov. 29 vote it can already be considered public notice. Tempe will make Mr. Monrtenegro happy by putting in an additional notice on the page where that shows that clause is being put into affect for that.

Literally quoting his letter:
"It is troubling to me that the City realized last week--without notifying votersor the general public --that section 17 of it Agreement is unlawful because A.R.S 16-407.01 prohibits the CIty from accepting private monies to administer the Special Election."

View attachment 696996

Source: www.tempe.gov/government/economic-development/priest-rio-salado-rfp

Yes that was put up after Montenegro's complaint was filed. They did nothing before that.

 

[Tom ServoMST3K]

Who the hell knows?

Both sides have good "elevator pitches" - a one line sales pitch. "No tax breaks for billionaires!" is solid. "Clean up a toxic waste dump without taxpayer dollars!" also sounds good.

The reality is that it'll all come down to turnout. Municipal elections usually have low turnout in general - but a special, mail-in election? It comes down to who has the more dedicated supporters.

Yeah, I wouldn't feel comfortable betting either way if a sportsbook offered even odds.

 

[TheLegend]

Literally quoting his letter:
"It is troubling to me that the City realized last week--without notifying votersor the general public --that section 17 of it Agreement is unlawful because A.R.S 16-407.01 prohibits the CIty from accepting private monies to administer the Special Election."

There was no need to do anything unless someone complained.

Enter Mr. Montenegro....

Yes that was put up after Montenegro's complaint was filed. They did nothing before that.

He also noted Section 18.2

(this is directly from the DDA)

18.2 Severability. If any term, condition, covenant, stipulation, agreement, or
provision in this Agreement is held to be invalid or unenforceable for any reason, the invalidity of
any such term, condition, covenant, stipulation, agreement, or provision shall in no way affect any
other term, condition, covenant, stipulation, agreement, or provision of this Agreement.

So even if the AG were to declare Section 17 was invalid, the rest of the DDA is protected.

In other words.... it's built in. Tempe doesn't have to do anything. They will notify the public that Section 17 will be rendered moot because of the potential complaint and go forward.

 

[PredsHead]

There was no need to do anything unless someone complained.

Enter Mr. Montenegro....



He also noted Section 18.2

(this is directly from the DDA)


So even if the AG were to declare Section 17 was invalid, the rest of the DDA is protected.

In other words.... it's built in. Tempe doesn't have to do anything. They will notify the public that Section 17 will be rendered moot because of the potential complaint and go forward.

They are not enforcing sections of the DDA which is currently on the ballot (Prop 303) without notifying the voter until they got caught and that is completely ok with you? What else have they figured out is not enforceable so far, anything? Would it take a state legislator from Flagstaff or Yuma to complain to find out? Why would Tempe not have been as open and transparent as possible with as sensitive as this issue has become?

 

[TheLegend]

They are not enforcing sections of the DDA which is currently on the ballot (Prop 303) without notifying the voter until they got caught and that is completely ok with you? What else have they figured out is not enforceable so far, anything? Would it take a state legislator from Flagstaff or Yuma to complain to find out? Why would Tempe not have been as open and transparent as possible with as sensitive as this issue has become?

You're still overthinking this.

Going to remind you that they wrote the DDA to the best of their knowledge that it would not step on any laws. BUT.... like anything else they included a remedy incase something was found, no matter the obscurity of it.

IF.... the AG were to have investigated she would have asked the city and Bluebird what their intentions were. There was no intent to hide anything because the freaking DDA has been sitting there available to the public since the end of November. She had 30 days to make a decision, which by then the vote would be over and counted, and there is no way of knowing how she might have decided.

At worst.... the city would still be stuck with the election bill, the clause would be stricken and the rest of the DDA would still remain intact.



(btw.... side note.... the current state senator from Flagstaff is under fire because she really doesn't live in Flagstaff. She bought a mobile home in Flag as a residence so she could run in that district. She's spent the last week posting goofy shots of her fishing in Flag, while also getting a restraining order on a reporter who's been trying to ask her about her residential status. As I said... they do funny things here.)

 

[Llama19]

Tempe-Coyotes deal will not face probe after State Rep. withdraws complaint

To quote:

""(The Coyotes franchise has) stated in writing that it made an independent and unsolicited decision to refer (the project) to the ballot," Montenegro wrote in his withdrawal letter, adding that he has also "received written confirmation from the city's legal counsel that the city does not intend to enforce the (election) funding provision."

The confirmation from Coyotes representatives that they actually wanted to refer the deal to the ballot, and were not coerced by Tempe, was all that was needed to squash that part of Montenegro's complaint

As a non-government organization, the NHL franchise has a right to refer something to the ballot if it collects enough voter signatures to qualify. So, as long as Tempe didn't force the Coyotes send the project to a public vote, the referral process was legitimate.

The second piece of the now-settled complaint did require Tempe to change its plans, however. City officials relied on a safeguard in the project's development agreement that allows Tempe to nix any terms that are "invalid or unenforceable," so they were able to remove the section that required the Coyotes to cover election-related costs.


Source (Paywall): www.azcentral.com/story/news/local/tempe/2023/04/26/arizona-representative-withdraws-complaint-tempe-coyotes-ballot-measure/70154183007/

 

[GKJ]

Seravalli on 690 in Calgary says that if the vote fails, there is a chance the team moving this summer. Members of the front office are canvassing, and the main pitch isn’t even about the Coyotes. Cites this as evidence as to how worried they are (very).

~8:15

 

[Yukon Joe]

Seravalli on 690 in Calgary says that if the vote fails, there is a chance the team moving this summer. Members of the front office are canvassing, and the main pitch isn’t even about the Coyotes. Cites this as evidence as to how worried they are (very).

~8:15

So the one bit of news Seravalli had in that clip is that members of the Coyotes front office are out canvassing in advance of this vote. Also that in their sales pitch it's mostly about the great public space, more concerts - and that Arizona Coyotes hockey was something like #8.

His notion that if the vote fails he doesn't know how they can survive, that they might move this summer, and likely to Houston - that's all him speculating.

If nothing else, I think the Coyotes lease with ASU was for 2 years with an option for a third, so they're probably going to stay for at least one more year.

I went through this in 2011 with the Jets. The official announcement was made May 31, but there were serious hints being dropped well beforehand. The Tempe vote isn't until May 16. If the vote fails on May 16 (and they might not even know the results until a day or two later) there simply wouldn't be enough time to move the team in the summer.

 

[GKJ]

So the one bit of news Seravalli had in that clip is that members of the Coyotes front office are out canvassing in advance of this vote. Also that in their sales pitch it's mostly about the great public space, more concerts - and that Arizona Coyotes hockey was something like #8.

His notion that if the vote fails he doesn't know how they can survive, that they might move this summer, and likely to Houston - that's all him speculating.

If nothing else, I think the Coyotes lease with ASU was for 2 years with an option for a third, so they're probably going to stay for at least one more year.

I went through this in 2011 with the Jets. The official announcement was made May 31, but there were serious hints being dropped well beforehand. The Tempe vote isn't until May 16. If the vote fails on May 16 (and they might not even know the results until a day or two later) there simply wouldn't be enough time to move the team in the summer.

Yeah, that’s the actual news and speculation separation. The speculation part is something anyone can be doing. The news is new though.

I disagree about the timeline for relocation though. If they feel it’s what they have to do, they will do it. As long as something can be lined, we know the NHL can move heaven and earth. What we don’t know is if the owners are at their wits end and how viable another potential option in Arizona is.

 

[ponder719]

I disagree about the timeline for relocation though. If they feel it’s what they have to do, they will do it. As long as something can be lined, we know the NHL can move heaven and earth. What we don’t know is if the owners are at their wits end and how viable another potential option in Arizona is.

The most likely scenario in that case is still playing out one more year at Mullett Arena, and lining up a new home over the course of that year (if the vote fails, which I take no stance on, I'm not nearly well-informed enough), but if they felt they absolutely had to get this team the hell out of dodge, they would find a way, somehow, somewhere, that the Coyotes could share space with someone else, even if it meant playing 5 home games a piece at 20 different arenas. That, in my estimation, is how the Nordiques will come back if they ever do. They're the "in case of Ralston-Purina incident, break glass" option that will almost always be available if everything else fails.

As ever, the optimal situation is that this doesn't fail and the Coyotes are fine, but I don't think the league is going to be so blindsided by this result or any other that they don't have plans B-Q available just in case.

 

[GKJ]

The most likely scenario in that case is still playing out one more year at Mullett Arena, and lining up a new home over the course of that year (if the vote fails, which I take no stance on, I'm not nearly well-informed enough), but if they felt they absolutely had to get this team the hell out of dodge, they would find a way, somehow, somewhere, that the Coyotes could share space with someone else, even if it meant playing 5 home games a piece at 20 different arenas. That, in my estimation, is how the Nordiques will come back if they ever do. They're the "in case of Ralston-Purina incident, break glass" option that will almost always be available if everything else fails.

As ever, the optimal situation is that this doesn't fail and the Coyotes are fine, but I don't think the league is going to be so blindsided by this result or any other that they don't have plans B-Q available just in case.

Seravalli also said there he believes Houston is sitting there ready to go, even if he’s speculating there that has to be based in some sort of real knowledge.

 

[Yukon Joe]

Seravalli also said there he believes Houston is sitting there ready to go, even if he’s speculating there that has to be based in some sort of real knowledge.

The fact that Houston has an NHL-capable arena, and is a market the NHL would be happy to be in, is public knowledge.