                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA
                                    DIVISION TWO

TANQUE VERDE UNIFIED SCHOOL                     )
DISTRICT NO. 13 OF PIMA COUNTY,                 )
a political subdivision of the State of         )
Arizona,                                        )
                                                )
                                 Petitioner,    )   2 CA-SA 2003-0067
                                                )   DEPARTMENT B
                     v.                         )
                                                )   OPINION
HON. DEBORAH BERNINI, Judge of the              )
Superior Court of the State of Arizona, in      )
and for the County of Pima,                     )
                                                )
                               Respondent,      )
                                                )
                     and                        )
                                                )
TANQUE VERDE COALITION, INC., an                )
Arizona not-for-profit corporation;             )
TIMOTHY MILES and LAURA MILES,                  )
husband and wife; JAMES JONES and               )
PENELOPE JONES, husband and wife;               )
GARY W. STONE and PAMELA J.                     )
PROVOST-STONE, husband and wife;                )
ALLAN H. BOWERMASTER and                        )
BARBARA L. BOWERMASTER, husband                 )
and wife; ROBERT G. BROWN and                   )
VIRGINIA L. BROWN, husband and wife;            )
JAMES BARTUSKA and BONNIE                       )
BARTUSKA, husband and wife; CAROL               )
RENTSCHLER RHODES, an unmarried                 )
woman; DAVID S. MOSER and                       )
CAROLYN R. MOSER, husband and wife;             )
and JOSEPH G. KLINGER and                       )
VIRGINIA A. KLINGER, husband and                )
wife,                                           )
                                                )
                    Real Parties in Interest.   )
                                                )


                            SPECIAL ACTION PROCEEDING
                               Pima County Cause No. C20025768

                                        RELIEF GRANTED


DeConcini McDonald Yetwin & Lacy P.C.
 By Denise M. Bainton, Wayne E. Yehling, and
    Lisa Anne Smith                                                                          Tucson
                                                                             Attorneys for Petitioner
Lewis & Roca LLP
 By John N. Iurino, John Hinderaker, and
    Erin O. Simpson                                                                          Tucson
                                                               Attorneys for Real Parties in Interest

Terry Goddard, Arizona Attorney General
 By Susan P. Segal, Dena Epstein, and Judith Darknall                                       Phoenix
                                                                      Attorneys for Amicus Curiae
                                                                    Arizona School Facilities Board

Arizona Center for Law in the Public Interest
 By Timothy M. Hogan                                                                     Phoenix
                                                                      Attorneys for Amicus Curiae
                                                                     School Finance Reform Group

Christopher P. Thomas                                                                     Phoenix
                                                               Attorney for Amicus Curiae Arizona
                                                                   School Boards Association, Inc.


E S P I N O S A, Chief Judge.


¶1             In this special action, Tanque Verde Unified School District No. 13 of Pima County

challenges the respondent judge’s rulings that the District’s board violated Arizona’s open meeting

laws in selecting a site on which to build a high school and that the District may not use funds from

the Arizona School Facilities Board (SFB) to pay severance damages in a condemnation action.1


       1
         Several residents, voters, taxpayers, and parents of students in the District also filed a
petition for special action challenging the respondent judge’s rulings. By separate order filed
today, we decline to accept jurisdiction of that petition because we conclude the petitioners lack
standing to assert that challenge. Their motion to intervene in the trial court was denied for failure
to comply with the requirements of Rule 24(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. The only case
they cited to support their claim of standing is inapplicable because the petitioner there had properly
The rulings culminated in a judgment entered June 30, 2003, in favor of real parties in interest,

Tanque Verde Coalition and various persons who live adjacent to or near the proposed high school

site (collectively, the Coalition). The petition for special action was filed two days later. Because

we find the respondent judge erred in several respects, we accept jurisdiction and grant relief.

                                    Special Action Jurisdiction

¶2             The respondent’s judgment recited the prior ruling invalidating all actions the

District had taken in selecting a site to build a high school and in directing its attorneys to file a

lawsuit to obtain the property by eminent domain. The judge also ruled that the District’s

condemnation action, then pending before another judge, was void ab initio and that the transfer,

pursuant to that lawsuit, of the property’s title to the District is void. In addition, the judge

concluded that the May 2001 election the District had conducted did not authorize it to purchase

a site for the high school. Based on those rulings, the judge enjoined the District from physically

altering the property or initiating another condemnation action without first obtaining approval from

the SFB in each of the last two steps of its three-step process for funding new schools. And the

judge permanently enjoined the District from using SFB funds to pay severance damages in a

condemnation action to obtain any site it selects.

¶3             Ordinarily, this court does not accept special action jurisdiction in a case in which

a final judgment has been entered. See Ariz. R. P. Special Actions 1(a), 17B A.R.S. (“Except

as authorized by statute, the special action shall not be available where there is an equally plain,

speedy, and adequate remedy by appeal . . . .”). However, our “[s]pecial action jurisdiction is

highly discretionary.” Blake v. Schwartz, 202 Ariz. 120, ¶7, 42 P.3d 6, ¶7 (App. 2002); see also



intervened in the proceedings in the trial court. Renck v. Superior Court, 66 Ariz. 320, 187 P.2d
656 (1947).

                                                  3
A.R.S. § 12-120.21(A)(4) (special action jurisdiction of court of appeals not confined by appellate

jurisdiction). We appropriately accept jurisdiction when the issues raised are ones of first

impression, involve purely legal questions, are of statewide importance, and are likely to recur.

Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998); Blake.

¶4             All of those elements are present in this case. The issues are legal ones, as

evidenced by the parties having filed cross-motions for summary judgment below in which they

asserted the essential facts were undisputed. Both the specific open meeting law issue and the

question about SFB funds are issues of first impression and of statewide importance. Moreover,

although the District may appeal the judgment, even an accelerated appeal would be inadequate in

light of the respondent judge’s injunction prohibiting the District from beginning construction of

its planned high school until its board conducts another site selection process and again obtains

funding approval from the SFB. Finally, the appendices to the petition and response contain all

the pertinent documents from the trial court proceedings, enabling us to fully review the issues.

¶5             For the foregoing reasons, we exercise our discretion and accept jurisdiction of the

special action. And, because we conclude that the respondent judge abused her discretion by

committing errors of law in several of her rulings, we grant relief. See Ariz. R. P. Special

Actions 3(c); Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 63 P.3d 282 (2003).

                              Factual and Procedural Background

¶6             The District’s board voted on May 15, 2002, to build a high school at the

intersection of Catalina Highway and Snyder Road in Tucson (the Snyder site), the second time

it had chosen the site. On June 13, the board voted to initiate a condemnation action to acquire

the Snyder site. Several months later, on October 24, the board voted to pay necessary attorney’s




                                                4
fees for the condemnation action, and on October 28, the District filed a lawsuit in Pima County

Superior Court to obtain the site.

¶7             On November 25, the Coalition filed a lawsuit against the District and the SFB.

The complaint alleged that (1) the defendants had violated the open meeting laws by choosing the

Snyder site in improperly held executive sessions; (2) the District’s election in May 2001 asking

voters for authority to acquire a site and construct a high school had been conducted in violation

of A.R.S. § 15-341(A); (3) SFB funds cannot properly be used to pay for severance damages in

condemnation actions; and (4) the SFB’s approval of the District’s high school construction plan

had expired before the SFB had voted to extend its approval for an additional year. In a fifth

count, the Coalition sought a declaratory judgment on each of its assertions. After the SFB

demanded and was granted a change of venue to Maricopa County, the Coalition dismissed it from

the lawsuit, thus eliminating count four of the complaint.

¶8             In late February, the Coalition moved for partial summary judgment on its claims

that the District had violated the open meeting laws and that it could not use SFB funds to pay

severance damages in the condemnation action. The District responded to the motion and then

filed a cross-motion for summary judgment on the four remaining counts. In its response to the

District’s motion, the Coalition also asked for summary judgment on the claim that the District

lacks voter approval to spend its own funds to build the high school. The respondent judge denied

the District’s motion and granted summary judgment in favor of the Coalition on all four counts.

The judge later denied the District’s motion for reconsideration and rejected its objections to the

proposed judgment.




                                                5
                                  Open Meeting Law Violations

¶9             The core provision of Arizona’s open meeting laws, A.R.S. §§ 38-431 through

38-431.09, states:

                       All meetings of any public body shall be public meetings and
               all persons so desiring shall be permitted to attend and listen to the
               deliberations and proceedings. All legal action of public bodies shall
               occur during a public meeting.

§ 38-431.01(A). The legislature included the following provision in which it expressly declared

the policy behind and intent of those laws:

                      It is the public policy of this state that meetings of public
               bodies be conducted openly and that notices and agendas be
               provided for such meetings which contain such information as is
               reasonably necessary to inform the public of the matters to be
               discussed or decided. Toward this end, any person or entity
               charged with the interpretations of this article shall construe any
               provision of this article in favor of open and public meetings.

§ 38-431.09.

¶10            The respondent judge ruled that the District’s board had violated § 38-431.01(A)

in meetings held between February 8 and May 15, 2002, by improperly conducting its site

selection process in executive sessions. The judge also found that the board had violated the open

meeting law in meetings conducted between June 13 and September 12, 2002. The District

contends the judge abused her discretion in so ruling, noting that she did not explain the basis for

it and asserting that the Coalition’s interpretation of the statute is erroneous.

¶11            The parties do not dispute that the District meets the definition of “public body” in

§ 38-431(6) and that its board’s legal actions are required to take place in public meetings. Their

dispute centers instead around the statutory exceptions to the open meeting law that permit a public

body to conduct executive sessions to discuss, consult on, or consider certain subjects, including



                                                 6
various personnel matters, information in sealed records, and legal advice. § 38-431.03(A)(1),

(2), and (3). The exception at issue here, § 38-431.03(A)(7), provides:

                      A. Upon a public majority vote of the members constituting
              a quorum, a public body may hold an executive session but only for
              the following purposes:

                      ....

                     7. Discussions or consultations with designated
              representatives of the public body in order to consider its position
              and instruct its representatives regarding negotiations for the
              purchase, sale or lease of real property.

¶12           At the outset, we acknowledge that the question of the proper scope of the statutory

exception is not an easy one to answer and that competing public interests exist. Members of the

public have a right to be present while their governing public bodies debate matters that will

significantly affect the public. The decision on where to build a school undoubtedly affects the

lives of many people. Yet, the public body is charged with spending the public’s money wisely

and well. Ultimately, however, we construe the statutory exception narrowly, leaving to the

legislature to determine whether the exception should be expanded.

¶13           “Exceptions to the open meeting law ‘should be narrowly construed in favor of

requiring public meetings.’” Johnson v. Tempe Elem. Sch. Dist. No. 3 Governing Bd., 199 Ariz.

567, ¶14, 20 P.3d 1148, ¶14 (App. 2001), quoting Fisher v. Maricopa County Stadium Dist., 185

Ariz. 116, 123, 912 P.2d 1345, 1352 (App. 1995). A party who asserts that a public body has

violated the open meeting laws has the burden of proving that assertion. City of Prescott v. Town

of Chino Valley, 166 Ariz. 480, 803 P.2d 891 (1990). But when a party claims a public body

held an illegal executive session, the public body must prove that the session was properly

conducted under one of the statutory exceptions. Id.



                                               7
¶14            Because the issue before us is a question of statutory construction, our review is de

novo. See City of Tucson v. Pima County, 190 Ariz. 385, 949 P.2d 38 (App. 1997). “The most

fundamental rule of statutory construction requires us to determine the intent of the legislature.”

Fisher, 185 Ariz. at 123, 912 P.2d at 1352. “Statutory language is the best indicator of that intent

and we will give terms ‘their ordinary meanings, unless the legislature has provided a specific

definition or the context of the statute indicates a term carries a special meaning.’” Kessen v.

Stewart, 195 Ariz. 488, ¶6, 990 P.2d 689, ¶6 (App. 1999), quoting Wells Fargo Credit Corp. v.

Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103 (App. 1995). If we determine that the

statutory language is unambiguous, we must apply the language as written, without resorting to the

rules of statutory construction. Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 872 P.2d 668 (1994).

But, if we determine that the language is subject to more than one reasonable interpretation, we

must construe the statute, bearing in mind that, in doing so, we are required to give effect to the

legislature’s intent in enacting it. Id. “[W]e may also consider the context of the statute and its

historical background, subject matter, effects, consequences and purpose.” Alaface v. Nat’l Inv.

Co., 181 Ariz. 586, 592, 892 P.2d 1375, 1381 (App. 1994).

¶15            Under the plain language of § 38-431.03(A), a public body appropriately holds an

executive session when a majority of its members vote during a public meeting to conduct the

session for purposes of one of the express exceptions. Under the exception at issue, a public body

may hold an executive session to discuss with or consult its designated representatives while

considering its position on negotiations to purchase, sell, or lease real property.

§ 38-431.03(A)(7).

¶16            The key word in dispute is “negotiations.” The District argues that the term should

be defined broadly, with an eye to common sense and the realities of real estate transactions. As


                                                 8
the District interprets the language, the exception applies to “any subject—be it value, location,

biology, hydrology, topography or relative humidity—[that] is germane to a discussion” about the

District’s position on the purchase, sale, or lease of any parcel of real property. The Coalition,

however, insists that the exception applies only to existing, ongoing negotiations with a specific

property owner about which the public body needs to instruct its representatives or, more

specifically, to discussions in which “the public body is determining how much money to offer to

a third party to buy, sell or lease real property.” In our view, the language is susceptible to more

than one reasonable interpretation, requiring us to construe the statutory exception. See Hayes.

Therefore, we must determine the legislature’s intent in including the word “negotiations,” keeping

in mind our obligation to construe the exception narrowly.

¶17            According to Black’s Law Dictionary 1059 (7th ed. 1999), “negotiation” means “[a]

consensual bargaining process in which the parties attempt to reach agreement on a disputed or

potentially disputed matter.” The dictionary also defines “negotiations” as “[d]ealings conducted

between two or more parties for the purpose of reaching an understanding.” Id. We agree with

the Coalition that the District’s interpretation requires us to ignore the word “negotiations.” But,

we may not construe a statute by omitting any of its words. See State v. Heinze, 196 Ariz. 126,

¶27, 993 P.2d 1090, ¶27 (App. 1999) (“A fundamental principle of statutory construction is to

give each section meaning so that no part is rendered void, superfluous, contradictory or

insignificant.”).

¶18            Conversely, however, we agree with the District that the Coalition’s reading of the

exception is too narrow and ignores the realities of real estate transactions. Before a public body

can instruct its designated representatives about which terms of a proposed transaction it deems

most critical, those on which it seeks to stand most firm, and those on which it may be more


                                                 9
flexible, the body must first determine for itself what those terms are. Under the Coalition’s

interpretation, a public body could not retire to an executive session unless it had already

commenced negotiating with a property owner or purchaser, apparently, only after having first

made public its opening bargaining strategy. Such an interpretation would effectively gut the

statutory exception. If we were to construe the statute as the Coalition urges us to do, a public

body would be required to have determined and “telegraphed” its position on any real estate

transaction before it could ever be permitted to conduct an executive session to consider that

position. But, we may not construe a statute in a way that defeats its purpose. See State v.

Estrada, 197 Ariz. 383, 4 P.3d 437 (App. 2000), aff’d, 201 Ariz. 247, 34 P.3d 356 (2001); Perez

v. Maricopa County, 158 Ariz. 40, 760 P.2d 1089 (App. 1988).

¶19            We find instructive the language of two of the other statutory exceptions in

§ 38-431.03. See Alaface (statutes may be construed by considering them in context). The first

exception permits executive sessions for

               [d]iscussions or consultations with designated representatives of the
               public body in order to consider its position and instruct its
               representatives regarding negotiations with employee organizations
               regarding the salaries, salary schedules or compensation paid in the
               form of fringe benefits of employees of the public body.

§ 38-431.03(A)(5) (emphasis added). The emphasized language in that subsection is identical to

the introductory language in subsection (7). Concluding that a school district could not meet in

executive session to determine its position on various aspects of employee salaries and benefits

before entering into bargaining talks with organizations representing those employees would render

that exception meaningless. A district would be unable to begin negotiating on such topics unless

it had first determined its expected revenues and expenses and the areas in which it could adjust

either. And no one would expect a district to make its positions on such matters public before it


                                                10
actually commenced those negotiations. See Hokanson v. High Sch. Dist. No. 8, 121 Ariz. 264,

268, 589 P.2d 907, 911 (App. 1978) (“We do not believe the legislature intended on the one hand

to authorize a private discussion of personnel matters, and on the other to require a recital of the

discussion in public.”).

¶20            The second instructive exception authorizes executive sessions for

               [d]iscussion or consultation with the attorneys of the public body in
               order to consider its position and instruct its attorneys regarding the
               public body’s position regarding contracts that are the subject of
               negotiations, in pending or contemplated litigation or in settlement
               discussions conducted in order to avoid or resolve litigation.

§ 38-431.03(A)(4). Under that section, the contracts in question must be “the subject of

negotiations,” thus implying that negotiations have already begun. That language shows that, when

the legislature requires negotiations to be ongoing, it says so. But, because the legislature did not

employ that language in the subsection at issue, we cannot conclude that it applies only when

express negotiations to purchase or sell property have actually begun.

¶21            As the parties acknowledged at oral argument, no cases in Arizona address the

exception for negotiations for the purchase, sale, or lease of real property. The District relies on

two cases from other jurisdictions, neither of which is helpful here: Save Our Springs Alliance,

Inc. v. Austin Independent School District, 973 S.W.2d 378 (Tex. App. 1998), and Boney

Publishers, Inc. v. Burlington City Council, 566 S.E.2d 701 (N.C. Ct. App. 2002). Because the

Texas statute at issue in Save Our Springs is so dissimilar to ours, we find the case distinguishable.

Texas’s statute permits public entities to hold an executive session “to deliberate the purchase,

exchange, lease, or value of real property if deliberation in an open meeting would have a

detrimental effect on the position of the governmental body in negotiations with a third person.”

Tex. Code Ann. § 551.072 (Vernon 2003). The exception clause in the Texas statute is broader


                                                 11
than ours, and its language is focused on deliberating about purchasing or selling real property

rather than upon the negotiations phase like our statute. Thus, we agree with the Coalition that the

Texas court’s ruling finding permissible the school board’s discussions there is not applicable here.

¶22             The statutory exception at issue in Boney Publishers is more similar to Arizona’s

but also more restrictive. In North Carolina, a public body may conduct a closed session, among

other things,

                [t]o establish, or to instruct the public body’s staff or negotiating
                agents concerning the position to be taken by or on behalf of the
                public body in negotiating (i) the price and other material terms of
                a contract or proposed contract for the acquisition of real property
                by purchase, option, exchange, or lease.

N.C. Gen. Stat. § 143.318.11(a)(5) (2003). The court in Boney Publishers suggested that a city

council might permissibly meet in closed session to consider acquiring different tracts of land with

different owners. But the District acknowledges that the suggestion was dictum; moreover, the

suggestion assumed those facts would be material terms of any proposed contract. In addressing

the issue actually raised in that case, the court ruled that a closed session is appropriate when a

“public body intends to discuss the price to be paid for a particular tract of land, or to discuss other

material terms of the contract to purchase the tract which may be subject to negotiation.” 566

S.E.2d at 704-05. Thus, as the Coalition points out, the holding in Boney Publishers instead

supports its position that executive sessions to consider a public body’s position on negotiations to

purchase property are appropriate only after the body has determined which parcel it wants to

purchase.

¶23             As noted earlier, competing public interests exist in this case. See City of Prescott,

166 Ariz. at 482, 803 P.2d at 893 (“At issue are two competing public policies: the public’s

interest in the process of government and the need for confidential discussion or consultation for


                                                  12
legal advice between a public body and its attorney.”); Hokanson, 121 Ariz. at 267, 589 P.2d at

910 (“The public’s right to know and to participate in the decision-making process frequently

comes into sharp conflict with the need for confidentiality in certain areas.”). On the one hand,

as the District argues, its board sought to choose a site for its proposed high school without the

glare of public scrutiny. The District asserts its board did so in an attempt to avoid having the

owner of the site inflate the asking price based on the advantages and disadvantages that the board

members might express about all the sites they considered during the selection process. Indeed,

the record reflects that, after the board had chosen the Snyder site for the first time in 2000 and

asked the SFB to approve it, a third party purchased the property and then demanded a greatly

increased price from the District for it. The SFB then rejected the site, and its executive director

“vigorously recommend[ed]” that the District’s board “discuss all future land acquisition in

executive session.” The executive sessions at issue occurred after that, when the board again

considered the site.

¶24            On the other hand, we note again the declared public policy of the open meeting

laws that all legal actions of public bodies be taken in public sessions. § 38-431.01(A). Arizona

courts have expressed that policy in various ways since the open meeting laws were adopted.

“The intent of the legislature was to open the conduct of the business of government to the scrutiny

of the public and to ban decision-making in secret.” Karol v. Bd. of Educ. Trustees, 122 Ariz.

95, 97, 593 P.2d 649, 651 (1979). Our supreme court has twice quoted with approval the

following language:

               “[A] public meeting presupposes the right of the public freely to
               attend such meetings with the concurrent right freely to express any
               approval or disapproval of any action or course about to be taken.
               Anything which tends to ‘cabin, crib or confine’ the public in this
               respect would be destructive of the right . . . .”


                                                13
Washington Sch. Dist. No. 6 v. Superior Court, 112 Ariz. 335, 336, 541 P.2d 1137, 1138 (1975),

quoting City of Lexington v. Davis, 221 S.W.2d 659, 661 (Ky. Ct. App. 1949) (emphasis

deleted); Town of Paradise Valley v. Acker, 100 Ariz. 62, 65, 411 P.2d 168, 170 (1966); see also

Fisher, 185 Ariz. at 123, 912 P.2d at 1352.

¶25            We believe the correct interpretation of the statutory exception lies somewhere in

the proverbial middle. Accordingly, we construe the language in subsection (7) as permitting a

school district to discuss its position in executive session before it actually commences negotiating

with a land owner or purchaser. We are unable to conclude, however, that choosing a site in the

first place falls within the statutory exception. Although the District is correct that a public body

must choose a site before it can begin negotiating to purchase or lease the site, nothing in

subsection (7) permits a public body to convene in executive session to discuss selecting a site on

which to construct a new school. For that discussion, we find applicable the following statement

by our supreme court in Karol:

                       We do not believe, in order to conduct a meeting openly, the
               public body need disclose every fact, theory, or argument pro or
               con raised in its deliberations, or every detail of the recommended
               decision on which a vote is about to occur. On the other hand, we
               would not find acceptable a public body calling for vote a
               recommended action designated only by number, thereby effectively
               hiding its actions from public examination. We believe therefore
               that the stated intent of the statute requires that all legal actions be
               preceded . . . by disclosure of that amount of information sufficient
               to apprise the public in attendance of the basic subject matter of the
               action so that the public may scrutinize the action taken during the
               meeting . . . .

122 Ariz. at 98, 593 P.2d at 652. Or, as Division One of this court succinctly put it: “It is the

debate over what action to take, including the pros and cons and policy implications, of competing




                                                 14
alternative courses of action, that must take place in public.” Fisher, 185 Ariz. at 124, 912 P.2d

at 1353.

¶26            Admittedly, we have no bright-line test for determining the point at which an

executive session becomes permissible. Such determinations undoubtedly must be reached on a

case-by-case basis. Under the facts of this case, however, we conclude, as a matter of law, that

the District’s board crossed the line and that, therefore, the respondent judge did not abuse her

discretion in finding that the board had violated the open meeting laws by conducting the site

selection process for its proposed high school in executive session.

                                           Ratification

¶27            The District argues, however, that its board ratified the selection of the Snyder site

at a public meeting held May 29, 2003, after the respondent judge ruled that the board had violated

the open meeting laws. The District presented evidence about its compliance with the statutory

requirements for ratification and the action the board took in that meeting in a motion for

reconsideration filed after the judge had granted summary judgment in favor of the Coalition. The

respondent judge denied the motion without comment, but in denying a related motion, ruled that

the ratification attempt was untimely. We find she abused her discretion in doing so. See Twin

City.

¶28            Section 38-431.05(A) provides that any legal action a public body takes in violation

of the open meeting laws is void “except as provided in subsection B.” Subsection (B) provides:

                        A public body may ratify legal action taken in violation of
               this article in accordance with the following requirements:

                       1. Ratification shall take place at a public meeting within
               thirty days after discovery of the violation or after such discovery
               should have been made by the exercise of reasonable diligence.



                                                15
                       2. The notice for the meeting shall include a description of
               the action to be ratified, a clear statement that the public body
               proposes to ratify a prior action and information on how the public
               may obtain a detailed written description of the action to be ratified.

                       3. The public body shall make available to the public a
               detailed written description of the action to be ratified and all
               deliberations, consultations and decisions by members of the public
               body that preceded and related to such action. The written
               description shall also be included as part of the minutes of the
               meeting at which ratification is taken.

                       4. The public body shall make available to the public the
               notice and detailed written description required by this section at
               least seventy-two hours in advance of the public meeting at which
               the ratification is taken.

In its response to the special action petition, the Coalition does not dispute that the District’s board

met the requirements of (2), (3), and (4). Instead, it contends the board’s vote on May 29, 2003,

to ratify its decision of May 15, 2002, was untimely. We disagree.

¶29             The Coalition first argues that, as a matter of law, the District’s board members

could not have had a good faith basis for believing its executive sessions had complied with the

open meeting laws because they knew there were no ongoing negotiations to purchase any of the

sites the board had been considering. Although we question whether a court can determine a

person’s subjective bad faith as a matter of law, we need not address that issue because we find

no merit to the Coalition’s argument. As both parties have acknowledged, no previous Arizona

case has addressed the statutory exception at issue and its scope. Moreover, we have already

demonstrated that reasonable minds can differ on the meaning and applicability of subsection (7).

That negotiations were not actually occurring, therefore, does not require us to determine, as a

matter of law, that the board members should have discovered “by the exercise of reasonable

diligence” that they had violated the open meeting laws. § 38-431.05(B)(1).



                                                  16
¶30            Nor do we agree with the Coalition that the discovery clause in subsection (B)(1)

of the ratification statute was triggered by the letter its attorneys sent the District’s board on

October 23, 2002. Taken to its logical conclusion, the Coalition’s theory would be unworkable

and could bring the business of a public body to a standstill. If members of a public body can be

said, as a matter of law, to have actually or constructively discovered they have violated the open

meeting laws based only on receiving a letter from an attorney setting forth “the facts and the legal

bases for concluding” that such a violation has occurred, then any disgruntled person could require

any public body to ratify every legal action the body takes simply by hiring a lawyer to send a

letter. We cannot conclude that the opinion of the Coalition’s attorneys that the board had violated

the open meeting laws triggered the ratification discovery clause. For the same reasons, we reject

the respondent judge’s comment that the board knew or should have known it had violated the law

“no later than” the date the Coalition filed its lawsuit.

¶31            Finally, we find inapplicable the Coalition’s analogy to the discovery rule in tort

litigation. Under that rule, a plaintiff’s “cause of action does not accrue until the plaintiff knows

or with reasonable diligence should know the facts underlying the cause.” Doe v. Roe, 191 Ariz.

313, ¶29, 955 P.2d 951, ¶29 (1998). The statutory limitation period thus begins when a plaintiff

knows or should know sufficient facts to identify that a wrong occurred and caused injury. Walk

v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002). If the plaintiff fails to file a lawsuit within the

applicable period, the action is time barred and subject to dismissal on that ground. See Doe. But

in tort cases, the date on which the plaintiff knew or should have known he or she has been

damaged as a result of someone else’s tortious conduct is the date on which the statutory limitation

period begins. In this case, the unknown quantity was not the date the board members knew, but

the applicable legal rule. Unlike the question of the date when a plaintiff knew or should have


                                                 17
known “facts underlying the cause,” id. at ¶29, a matter that may raise questions of fact for a trier

of fact, id., the question here was a legal question. Because no Arizona case had determined the

meaning and applicability of the statutory exception at issue at the time of the respondent judge’s

ruling, we cannot say as a matter of law that the District’s board had discovered or should have

discovered before that time that its executive sessions had violated the open meeting laws.

¶32            Indeed, the Coalition implicitly, although probably unintentionally, recognizes this

in its response to the District’s petition for special action. The Coalition argues that the District’s

board should not have presumed it had complied with the open meeting laws “since a court is the

final arbiter of that question, not the District, its attorneys, or the SFB’s attorneys.” The reverse

of that proposition is also true. The District’s board was not required to presume that it had

violated the open meeting laws simply because the Coalition had asserted it had “since a court is

the final arbiter of that question.” Moreover, if public bodies must interpret the law as requiring

open meetings if they have any doubt about the laws’ application, as the Coalition contends, then

the statutory exceptions become meaningless and the ratification statute useless. As we have

already noted, we may not construe statutes in a way that renders any portion superfluous, void,

or insignificant. Heinze.

¶33            The Coalition also argues that the board could not ratify its actions by a single vote

selecting the Snyder site and directing its attorneys to file a condemnation action to acquire the site

because, it claims, the entire site selection process was improperly conducted in executive session.

The Coalition bases that argument on the respondent judge’s conclusion that all legal actions the

board had taken between February 8 and September 12 pertaining to the high school and the

Snyder site were void. We disagree. Nothing in the ratification statute requires a public body to

repeat an entire process improperly conducted in executive session. Moreover, the board’s vote


                                                  18
to build the school on the Snyder site was not made in executive session. Instead, its violation was

in conducting the site selection process in executive session. Therefore, the board could properly

ratify by a single vote the legal action that had resulted from that process.

¶34            We also find no support for the Coalition’s argument in the cases on which it relies.

Because Cooper v. Arizona Western College District Governing Board, 125 Ariz. 463, 610 P.2d

465 (App. 1980), was decided before the ratification provision was adopted in 1982, see 1982

Ariz. Sess. Laws, ch. 278, § 2, its statement on affirmance does not apply to a question on

ratification. The issue in McComas v. Board of Education, 475 S.E.2d 280 (W. Va. 1996), was

whether a “meeting,” as defined by the statute, had occurred. In affirming the trial court’s

conclusion that the public vote was void, the appellate court did not rule that the board could not

ratify its actions; the court simply affirmed the consequences the trial court had imposed on the

board for conducting a meeting in violation of the statute. The same is true in Town of Palm

Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). The issue there was whether a citizens’ planning

committee was required to comply with the open meeting law; no issue of ratification was

involved. Although the court held in Board of Education School District No. 67 v. Sikorski, 574

N.E.2d 736 (Ill. App. Ct. 1991), that the school board in that case had ratified its action taken in

violation of the open meetings act, we find the reasoning unhelpful because there is no ratification

provision in the Illinois statutes. See 5 Ill. Comp. Stat. 120/1 through 120/6 (2003).

¶35            Because we find no merit to the Coalition’s arguments that the board’s ratification

of its selection of the Snyder site was either untimely or ineffective, we conclude that the

respondent judge abused her discretion in denying the District’s motion for reconsideration. And,

because we conclude the board timely ratified its selection of the Snyder site, we need not address

any of the District’s arguments about the relief the respondent judge granted the Coalition,


                                                19
including her determination that the board’s selection of the Snyder site was void, that the action

to condemn the Snyder site was void ab initio, and that the transfer of title to the District of the site

was void.

                         The SFB’s Authority to Pay Severance Damages

¶36             Although the Coalition had dismissed the SFB from the lawsuit, the respondent

judge nevertheless addressed the issue of whether SFB funds can be used to pay severance

damages in a condemnation action. The judgment permanently enjoins the District from using SFB

funds to pay severance damages in any condemnation action it may file to acquire a high school

site. Although we question the wisdom of determining the authority of a state agency in its

absence, we address the issue because the SFB has filed an amicus curiae brief in this special

action.

¶37             The SFB was created as part of the Students FIRST Act, the legislature’s response

to our supreme court’s ruling in Roosevelt Elementary School District No. 66 v. Bishop, 179 Ariz.

233, 877 P.2d 233 (1994), that the state’s system for financing schools was unconstitutional. See

Hull v. Albrecht, 192 Ariz. 34, 960 P.2d 634 (1998); 1998 Ariz. Sess. Laws. 5th Spec. Sess.,

ch. 1; see also Roosevelt Elem. Sch. Dist. No. 66 v. State, ___ Ariz. ___, 74 P.3d 258 (App.

2003). In the Act, the legislature established three funds the SFB administers, the Deficiencies

Correction Fund, the Building Renewal Fund, and the New School Facilities Fund. A.R.S.

§§ 15-2021, 15-2031, and 15-2041. As the SFB points out, although the judgment refers to SFB

funds in general, the only fund applicable in this case is the New School Facilities Fund.

¶38             Section 15-2041 requires the SFB to project future enrollments for schools and to

distribute state funds to school districts under prescribed formulas with the goal of achieving

“minimum adequate facility standards” for schools throughout the state. Hull, 192 Ariz. 34, ¶8,


                                                   20
960 P.2d 634, ¶8. The first sentence of subsection (F) is the one at issue. Pertinent portions of

that subsection provide:

                         The school facilities board shall distribute the monies needed
                for land for new schools so that land may be purchased at a price
                that is less than or equal to fair market value and in advance of the
                construction of the new school. If necessary, the school facilities
                board may distribute monies for land to be leased for new schools
                if the duration of the lease exceeds the life expectancy of the school
                facility by at least fifty per cent. The proceeds derived through the
                sale of any land purchased or partially purchased with monies
                provided by the school facilities board shall be returned to the state
                fund from which it was appropriated and to any other participating
                entity on a proportional basis. If a school district acquires real
                property by donation at an appropriate school site approved by the
                school facilities board, the school facilities board shall distribute an
                amount equal to twenty per cent of the fair market value of the
                donated real property that can be used for academic purposes. The
                school district shall place the monies in the unrestricted capital outlay
                fund and increase the unrestricted capital outlay limit by the amount
                of monies placed in the fund. Monies distributed under this
                subsection shall be distributed from the new school facilities fund.

§ 15-2041(F).

¶39             Observing that a school district is a legislative creation with only the powers the

legislature has granted it, the respondent judge ruled as follows:

                        [The Coalition’s] second argument is that A.R.S.
                §15-2041(F) does not permit the payment of severance damages with
                School Facilities Board funds . . . . A literal reading of the statute
                forces the Court to agree. Severance damages are often, but not
                always, a component of condemnation actions. However, fair
                market value and severance damages are calculated separately and
                are defined in separate jury instructions in such cases. A.R.S.
                §12-1122(A)(3) and (4). While the reality is that fair market value
                contemplates severance damages, they are not one and the
                same. . . . Neither side disputes that, on its face, [§ 15-2041(F)]
                does not refer to severance damages, attorneys fees, or other
                expected costs which might result from the purchase of land.
                Because the legislature was quite clear in limiting the use of SFB
                funds to—at a minimum—“fair market value”, the Court is unwilling
                to interpret this subsection i[n] such a way that the limited resources


                                                   21
               of the SFB might be subject to other unspecified costs inherent in the
               purchase of land. School districts wishing to purchase or pursue
               condemnation of land that involves severance damages are not
               precluded from doing so. They are simply not able to avail
               themselves of SFB funds in order to purchase such land.

¶40            We disagree with the respondent judge’s interpretation of the statute for several

reasons.   First, the statute cannot be applied literally because it does not even mention

condemnation actions. That reason alone renders the statute ambiguous, requiring us to construe

it. See Hayes. Second, reading the statute in context to determine the legislature’s intent compels

us to conclude that it encompasses acquiring property by eminent domain even when severance

damages are involved.      Finally, unlike the respondent judge’s interpretation, the practical

consequences of our interpretation comport with the supreme court’s mandate in Roosevelt. We

examine each of those reasons in depth.

¶41            Initially, as noted above, the language at issue speaks only of purchasing property;

it does not mention acquiring property through eminent domain. Other portions of subsection (F)

refer to leasing property and acquiring property by donation. If we were to apply the statute as

it is literally written, therefore, we would have to conclude that subsection (F) does not even apply

to property acquired by eminent domain.

¶42            In addition, the language in question reads “so that land may be purchased.”

§ 15-2041(F). The statute states that the SFB “shall distribute the monies needed.” Id. But it does

not state that land “shall be purchased” at a price “less than or equal to fair market value.” Id.

Instead, it provides that land “may be purchased.” Id. (emphasis added). Appellate courts have

on occasion construed “may” to mean “shall” in certain contexts. See Frye v. South Phoenix

Volunteer Fire Co., 71 Ariz. 163, 224 P.2d 651 (1950); Pioneer Mut. Benefit Ass’n v. Corp.

Comm’n, 59 Ariz. 112, 123 P.2d 828 (1942). But that is not the case when the legislature has


                                                 22
employed both “shall” and “may” in the same paragraph. State v. Old West Bonding Co., 203

Ariz. 468, ¶23, 56 P.3d 42, ¶23 (App. 2002) (“[t]o give meaningful effect to both” subsections

of rule, one of which used “shall” and the other “may,” court “construe[d] the word ‘may’ . . .

as having its usual discretionary meaning”); HCZ Constr., Inc. v. First Franklin Fin. Corp., 199

Ariz. 361, ¶15, 18 P.3d 155, ¶15 (App. 2001) (“When the Legislature has used both ‘may’ and

‘shall’ in the same paragraph of a statute, we infer that the Legislature acknowledged the difference

and intended each word to carry its ordinary meaning.”); In re Guardianship of Cruz, 154 Ariz.

184, 741 P.2d 317 (App. 1987) (“shall” and “may” appeared in same paragraph of statute; court

applied statute as written). In this case, because the legislature used both words in the same

sentence, we apply “may” as written.

¶43            In addition, because condemnation actions are not mentioned in § 15-2041, nothing

in the statute connects the term “fair market value” to condemnation actions. “Fair market value”

is a term used in property transactions in general; it is also employed in criminal proceedings and

tax cases. See In re Krohn, 203 Ariz. 205, 52 P.3d 774 (2002) (mortgage foreclosure sale may

be set aside if bid is grossly inadequate when compared to fair market value of property); Bus.

Realty of Ariz., Inc. v. Maricopa County, 181 Ariz. 551, 892 P.2d 1340 (1995) (for tax purposes,

Arizona assesses property at full cash value, which is generally fair market value); Swanson v.

Safeco Title Ins. Co., 186 Ariz. 637, 925 P.2d 1354 (App. 1995) (title policy insured’s measure

of damages was property’s fair market value without title defect less fair market value with defect);

State v. Ellis, 172 Ariz. 549, 550, 838 P.2d 1310, 1311 (App. 1992) (in determining restitution

for stolen property, “the measure of the victim’s full economic loss is the fair market value”);

Rogers v. Feltz, 163 Ariz. 462, 788 P.2d 1213 (App. 1989) (tenant entitled to terminate lease for

landlord’s breach may recover as damages fair market value of lease as of termination date);


                                                 23
Farmers Ins. Co. of Ariz. v. R.B.L. Inv. Co., 138 Ariz. 562, 564, 675 P.2d 1381, 1383 (App.

1983) (“[T]he measure of compensation to the owner of a negligently damaged motor vehicle may

include the cost of repair and proven residual diminution in fair market value.”).

¶44            Moreover, as the District points out, the condemnation statute itself does not contain

the term “fair market value.” It uses the term “value.” A.R.S. § 12-1122(A)(1) (“The court or

jury shall ascertain and assess: 1. The value of the property sought to be condemned.”). We

acknowledge that the definition of “value” in § 12-1122(C) is quite similar to the term “fair market

value” as defined in case law. See Krohn; Farmers Ins. Co. We also note, however, that

statutory definitions of “fair market value” vary, depending on the type of property involved and

the nature of the proceeding. See A.R.S. §§ 12-1566(C) (proceedings to enforce judgments for

debts secured by real property); 13-1801(15) (defining “value” as fair market value of property

or services that have been stolen); 43-1089.02 (for tax purposes, fair market value of property

donated is as determined in certified appraisal as defined in A.R.S. § 32-3601); 44-5501(D)

(defined in context of consumer credit sales).

¶45            In short, nothing about the term “fair market value” limits its use to condemnation

proceedings. Thus, our examination of the language of the statute supports the conclusion that SFB

funds may be used to pay severance damages in a condemnation action. Our examination of the

context of the statute reinforces that conclusion. Subsection (C) of § 15-2041 requires a school

district to submit to the SFB a plan for a new school or an addition to an existing school and directs

it to “request monies from the new school facilities fund for the new construction or land.” But

it does not limit use of those monies to land acquired only by purchase or by a condemnation action

that does not include the payment of severance damages. And A.R.S. § 15-2051(A)(1)(a)

authorizes the SFB to issue negotiable revenue bonds to pay the cost of “[a]cquiring real property


                                                 24
and constructing new school facilities as provided by § 15-2041.” Section 15-2051 also contains

no limitation on obtaining land through condemnation actions in which severance damages are

involved. In addition, it speaks of “acquiring” land, not simply purchasing it. The same is true

of A.R.S. § 15-2066(B), which provides:

                       The validity of bonds issued under this article does not
               depend on and is not affected by the legality of any proceeding
               relating to any action by the school facilities board in granting or
               lending monies or the acquisition, construction or improvement of
               any facility paid with monies provided by the board.

(Emphasis added.)

¶46            Furthermore, the Students FIRST Act itself contains a statement about the SFB’s

purpose, which reads as follows: “The purpose of the school facilities board is to evaluate the

school capital needs of school districts and to distribute monies to school districts in order to cure

existing deficiencies, for building renewal and for the construction of new facilities.” 1998 Ariz.

Sess. Laws 5th Spec. Sess., ch. 1, § 47. We find no legislative intent in the context of the statute

to limit payments from the New School Facilities Fund to properties acquired only by purchase or

by condemnation actions that do not include an award of severance damages.

¶47            Finally, because we must, “[i]f possible, . . . construe a statute so that it will be

constitutional,” Blake, 202 Ariz. 120, ¶10, 42 P.3d 6, ¶10, we must remain mindful of the

practical consequences of our construction. In her ruling, the respondent judge noted that school

districts that must file a condemnation action in order to acquire the land on which to build a school

are not prohibited from paying severance damages; they simply must use funds other than SFB

funds to do so. As the SFB points out, that interpretation of the statute would eventually result in

returning Arizona’s school financing system to the system our supreme court found unconstitutional

in Roosevelt. Or, as the District puts it: “It does not make sense for the legislature to have created


                                                 25
the SFB to fund property acquisition centrally and uniformly, but restricted the SFB from paying

those damages necessarily declared by a court to be just and necessary compensation in a particular

case.”

¶48            Our interpretation, on the other hand, is consistent with the mandate in Roosevelt

that “the system the legislature chooses to fund the public schools must not itself be the cause of

substantial disparities.” 179 Ariz. at 242, 877 P.2d at 815. It is also consistent with the supreme

court’s statement in Hull that, “‘[o]nce a standard is set, the legislature must choose a funding

mechanism that does not cause substantial disparities and that ensures that no school in Arizona

falls below the standard.’” 192 Ariz. 34, ¶8, 960 P.2d 634, ¶8, quoting Hull v. Albrecht, 190

Ariz. 520, 524, 950 P.2d 1141, 1145 (1997). A school district with an insufficient tax base to

raise enough money to pay for severance damages to acquire perhaps the only available land on

which to build a school would soon fall below the standards set in the Students FIRST Act. We

are unable to conclude that the legislature struggled so long to create a statewide system for

financing new schools that did not include every possible method by which a school district may

obtain real property, including a condemnation action that involves an award of severance

damages. See Hull, 192 Ariz. 34, ¶2, 960 P.2d 634, ¶2 (“This is the fourth time this litigation

has required us to decide whether the legislature has met the mandate of the Arizona Constitution

to provide a general and uniform public school system.”).

                                           Disposition

¶49            Our conclusion that the District is not prohibited from using SFB funds to pay

severance damages in a condemnation action to acquire the Snyder site renders moot the

respondent judge’s ruling that the District’s May 2001 election did not authorize it to purchase the

site with its own funds. Although we agree that the District’s board violated the open meeting law


                                                26
as, we reverse the respondent judge’s rulings that the board’s ratification of its selection of the

Snyder site was untimely and that the District may not use SFB funds to pay severance damages.

Accordingly, we vacate the judgment and remand the case for further proceedings consistent with

this opinion.




                                                 PHILIP G. ESPINOSA, Chief Judge

CONCURRING:




JOHN PELANDER, Presiding Judge




PETER J. ECKERSTROM, Judge




                                                27
