Citizens have no right under the federal constitution to seek a voter referendum of a city's land sale, the Ninth U.S. Circuit Court of Appeals has ruled. In a case from Arizona, the federal appellate court dismissed arguments that the Tenth Amendment establishes the right to a referendum. The state constitution sets the rules for referenda, the court determined. "It is the power of the federal government which is constrained by the Tenth Amendment, not the power of the states," the court wrote. The case arose from an ordinance adopted by the Prescott City Council in October 1995. The measure provided for the sale of the city-owned Hassayampa Lake to Hassayampa Lake Holdings, LLC. The small but deep reservoir about 10 miles outside town was formerly part of the city's water system. The lake had become a popular place for people to swim, kayak and hang out during the summer, prompting complaints from nearby residents and raising liability concerns for city officials. The City Council's ordinance included a declaration of emergency "for the immediate preservation of the public peace, health and safety" and it took effect immediately. Citizens who spent leisure time at the lake opposed the sale, and they began to pursue a referendum. However, the Prescott city clerk refused to issue referendum petitions because the ordinance included the emergency declaration and, therefore, was not subject to referendum under the Arizona constitution. The California constitution has a similar referendum exception. Article II, Section 9(a) excepts "urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the state." In Prescott, opponents of the sale sued in Yavapai County Superior Court. The court said the emergency ordinance was a non-reviewable action whether or not an actual emergency existed. The state appellate court and state Supreme Court declined to hear an appeal. Opponents then took their case to federal court, where U.S. District Judge Stephen M. McNamee granted the city summary judgement. On appeal, opponents of the lake sale argued three things: that they had a Tenth Amendment Right to referendum, that the emergency ordinance exception violated their First Amendment rights to petition the government, and that the federal court should determine whether a true emergency existed. None of the three contentions found favor with the three-judge appellate panel. The opponents "misapprehend the scope and purpose of the Tenth Amendment," Judge Sidney R. Thomas wrote. "Plaintiffs cannot found a Section 1983 claim on the Tenth Amendment because it is neither a source of federal authority nor a fount of individual constitutional rights." As for the first amendment claim, the court agreed that "states may not place overly restrictive conditions on citizens attempting to exercise initiative or referendum rights." The court pointed to the Colorado case of Buckley v. American Constitutional Law Foundation, Inc., (1999) 119 S. Ct. 636, in which the court ruled that a requirement that petition circulators be registered voters and wear name badges was an unjustifiable restriction on First Amendment rights. The appellate panel also pointed to Meyer v. Grant, (1988) 486 U.S. 414, in which a Colorado law that prohibited paying referendum petition circulators was ruled an undue burden on political expression. "However, plaintiffs' claims do not fall within the orbit of Meyer and Buckley," Judge Thomas opined. "Those cases teach that where the people reserve the initiative or referendum power, the exercise of that power is protected by the First Amendment applied to the states through the Fourteenth Amendment." Opponents of the lake sale, Thomas continued, sought to expand the referendum right beyond that contained in the Arizona constitution. That state's constitution does not make laws passed under declaration of emergency subject to referendum. "This is not a restriction, condition or requirement that impermissibly burdens the exercise of the referendum power, thereby invoking protection of the First Amendment. Instead, it is a delegation to the Legislature by the people of a part of their reserved power of referendum. Thus, the emergency declaration by itself does not implicate First Amendment concerns," the court said. The appellate court was not about to decide whether a true emergency existed. "[P]laintiffs' remedy lies in the Arizona state courts, or perhaps at the ballot box, not with a federal jury," the court said. The case: Stone v. City of Prescott, No. 97-17121, 99 C.D.O.S. 2437, 99 Daily Journal D.A.R. 3185, filed April 2, 1999. The lawyers: For Stone: William B. Fortner, (520) 445-3817. For Prescott: Ralph M. Hess, City of Prescott legal department, (520) 776-6302.