No. ________

In The

Supreme Court of the United States
STEVEN SUSSEX AND VIRGINIA SUSSEX,
Petitioners,

V.

CITY OF TEMPE,
Respondent.

On Petition for a Writ of Certiorari
to the Arizona Court of Appeals
PETITION FOR A WRIT OF CERTIORARI

JOHN D. WILENCHIK
WILENCHIK & BARTNESS, P.C.
2810 N. Third St.
Phoenix, AZ 85004
(602) 606-2810
jackw@wb-law.com
Counsel of Record for Petitioner
April 7, 2020
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

 QUESTIONS PRESENTED
In a quiet title proceeding, can the trial court apply
state law to bar a defense that the plaintiff’s title is
“null and void” under the federal Arizona-New
Mexico Enabling Act?

 ii
PARTIES TO THE PROCEEDINGS
The following were parties to the proceedings in
Maricopa County Superior Court:
1.

Plaintiff/Respondent City of Tempe

2.

Defendants/Petitioners Steve and Virginia
Sussex

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................i
PARTIES TO THE PROCEEDINGS ......................... ii
TABLE OF AUTHORITIES ....................................... iv
OPINIONS BELOW .................................................... 1
STATEMENT OF JURISDICTION ........................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................... 2
STATEMENT OF THE CASE .................................... 3
REASONS FOR GRANTING THE
PETITION .............................................................. 6
I. Factual Background ......................................... 6
II. History of the Sussexes .................................. 11
III.Tempe’s Purported Acquisition of
Title ................................................................. 13
IV.Conflict with the Enabling Act ....................... 14
CONCLUSION .......................................................... 19
APPENDIX:
Exhibit A – Opinion of the Arizona Court of
Appeals (June 13,
2019)........................................................1a
Exhibit B – Order of the Arizona Supreme Court
denying review (Jan. 8, 2020)..............17a

 iv
TABLE OF AUTHORITIES
Cases
ASARCO Inc. v. Kadish, 490 U.S. 605,
109 S. Ct. 2037, 104 L. Ed. 2d 696
(1989) ........................................................ 16, 18, 19
Deer Valley Unified Sch. Dist. No. 97 of
Maricopa Cty. v. Superior Court In &
For Maricopa Cty., 157 Ariz. 537, 760
P.2d 537 (1988) .................................................... 16
Farmers Inv. Co. v. Pima Mining Co.,
111 Ariz. 56, 523 P.2d 487 (1974) ....................... 17
Genardini v. Kline, 19 Ariz. 558, 173 P.
882 (1918) ............................................................... 3
Gladden Farms, Inc. v. State,
129 Ariz. 516, 633 P.2d 325 (1981) ..... 9, 11, 15, 16
Kadish v. Arizona State Land Dep't, 155
Ariz. 484, 747 P.2d 1183 (1987), aff’d
sub nom. ASARCO Inc. v. Kadish, 490
U.S. 605 (1989)..................................................... 16
Lassen v. Arizona ex rel. Arizona
Highway Dep’t, 385 U.S. 458 (1967) ........... 6, 7, 10
Princess Plaza Partners v. State, 187
Ariz. 214, 928 P.2d 638 (App. 1995) .................... 18
State ex rel. King v. Lyons, 149 N.M. 330
(2011) .................................................................... 17
United States v. New Mexico, 536 F.2d
1324 (10th Cir. 1976) ........................................... 15
Statutes
28 U.S.C.A.§ 1257 ..................................................... 1
Ariz.Rev.Stat.Ann. § 12-821 ........................... 4, 5, 18
Ariz.Rev.Stat.Ann. § 12-851 ................................. 4, 5

 v
Ariz.Rev.Stat.Ann. § 12-1252(A) .............................. 3
Ariz.Rev.Stat.Ann., Enab. Act, Sec. 24 .................... 7
Ariz.Rev.Stat.Ann., Enab. Act, Sec. 28 .......... 2, 6, 18
Other Authorities
The Records of the Arizona Constitutional
Convention of 1910 (John S. Goff, ed., 1991) ........ 9

 PETITION FOR WRIT OF CERTIORARI
_________
Steven Sussex and Virginia Sussex (“Petitioners”),
respectfully petition for a writ of certiorari to review
the judgment of the Arizona Court of Appeals.
OPINIONS BELOW
The opinion of the Arizona Court of Appeals is City
of Tempe v. Sussex, (June 13, 2019) and included in
the Appendix at Attachment “A”. The order of the
Arizona Supreme Court denying review is included
in the Appendix at Attachment “B” (January 8,
2019).
STATEMENT OF JURISDICTION
The opinion and judgment of the Arizona Court of
Appeals in this matter is dated June 13, 2019. The
Arizona Supreme Court denied a petition for review
on January 8, 2019. Jurisdiction of this Court is
invoked under 28 U.S.C.A.§ 1257.

 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Section 28 of the federal Enabling Act for the State
of Arizona, which reads in relevant part:
Sec. 28. That it is hereby declared that all lands
hereby granted, including those which, having been
heretofore granted to said Territory, are hereby
expressly transferred and confirmed to the said
state, shall be by the said state held in trust, to be
disposed of in whole or in part only in manner as
herein provided…
No mortgage or other encumbrance of the said
lands, or any part thereof, shall be valid in favor of
any person or for any purpose or under any circumstances whatsoever. Said lands shall not be sold or
leased, in whole or in part, except to the highest and
best bidder at a public auction to be held at the
county seat of the county wherein the lands to be
affected, or the major portion thereof, shall lie,
notice of which public auction shall first have been
duly given by advertisement, which shall set forth
the nature, time, and place of transaction to be had,
with a full description of the lands to be offered, and
be published once each week for not less than ten
successive weeks in a newspaper of general circulation published regularly at the state capital, and in
that newspaper of like circulation which shall then
be regularly published nearest to the location of the
lands so offered…

 3
Every sale, lease, conveyance, or contract of or
concerning any of the lands hereby granted or
confirmed, or the use thereof or the natural products
thereof, not made in substantial conformity with the
provisions of this act shall be null and void, any
provisions of the constitution or laws of the said
state to the contrary notwithstanding.
STATEMENT OF THE CASE
On May 24, 2016, Plaintiff City of Tempe (“City”)
filed a claim for ejectment against the Defendants.
Defendants’ family has occupied the property in
question and the home on it for over one hundred
years. Since statehood, the real property in question
has been designed as “school trust” land (as a result
of which the Defendants have been unable to acquire it through adverse possession, or homesteading laws). In response to the City’s lawsuit for
ejectment, Defendants argued that the City did not
have valid title to the Property, because the State
deeded it away (first to the Union Pacific Railroad
on December 18, 2002, which deeded it to the City
days later) without conducting a public auction as
required by the Enabling Act and Arizona Constitution. As the strict result of the Enabling Act and
Constitution, the City’s title was therefore void.
Appellant argued that the lower court could not
award ejectment without finding that the City had
valid title. See A.R.S. § 12-1252(A); see also Genardini v. Kline, 19 Ariz. 558, 562, 173 P. 882, 884
(1918) (“Without any question, such is the nature of
this action, the statutory action in the nature of an
action in ejectment. Such being the clear nature of
the action, the plaintiff's right to recover depends

 4
upon the strength of his own title (paragraph 1629,
C. C. A. 1913), and not upon the weakness of the
title of his adversary.”) The City moved for summary
judgment on its claim for ejectment, and Appellants
cross-moved for summary judgment in their favor on
the City’s claims.1 In ruling on the motions, the
lower court at first overlooked the issue of whether
the City had valid title, and awarded the City
summary judgment based upon a finding that
Defendants’ defense was somehow barred by the
statute of limitations for filing “actions” against a
municipality, A.R.S. § 12-821 (which the lower court
mistakenly cited as “A.R.S. § 12-851”). Defendants
filed a Motion for Reconsideration in which they
pointed out that their defense could not be barred by
a statute of limitations (for filing an “action” against
the municipality), and further that issues of void
title can be raised at any time. After ordering a
response to the Motion for Reconsideration, the
Court then ruled alternatively that the City was not
required to prove up its title in order to eject the
Defendants, and/or that merely presenting the
Court with a quitclaim deed was sufficient. At no
point did the Court actually review or rule on the
Defendants’ critical defense—which they have been
“shouting out” since the beginning of this case—
which is that the Enabling Act and Arizona Constitution render the City’s title void (and the Defendants, by virtue of occupying the property for over a
century, have the better claim to title). Because 1)
1 Defendants also sought summary judgment on
their alternative claims for reimbursement for the
value of their home and improvements, under theories of inverse eminent domain and/or conversion.

 5
the plaintiff in an ejectment action must prove up
his own title (“recover on the strength of his own
title”) as an element of the claim, and 2) the City
lacks title to the property as a matter of law pursuant to the Enabling Act and Arizona Constitution,
the lower court erred by granting the City summary
judgment on its claims and entering a judgment for
ejectment against Defendants.
The Court of Appeals affirmed the lower Court’s
decision, finding that the Defendants’ defense was
barred by the statute of limitations for filing “actions” against a municipality, A.R.S. § 12-821,2
because the Defendants did not file a lawsuit of
their own asking the Court to declare the transfer
from the State invalid, within one year of learning
about the transfer. In other words, the lower courts
ruled that the Defendants should have raised their
defense to an element of the City’s claim before the
City’s claim was ever filed, and applied a statute of
limitations for filing “actions” against a public entity
in order to bar the defense to an action by one.
Further, it decided that any defense based on the
fact that the City’s title was void under the federal
Enabling Act was barred by the Arizona statute of
limitations.

2 The trial court mistakenly cited it as A.R.S. § 12851.

 6
REASONS FOR GRANTING THE PETITION
The injustice to the Sussex family is of national
magnitude. Further, by deciding that the Sussexes’
defense under the federal Enabling Act was barred
by a statute of limitations, the Arizona Court of
Appeals applied state law to override the express
provisions of the Arizona-New Mexico Enabling Act,
and therefore decided an important federal question
in a way that conflicts with relevant decisions of this
Court.
I.

Factual background

Five generations of Defendants’ family have lived in
and occupied the home at 302 W. First Street for
over one hundred years, since at least 1892 (hereinafter referred to as the “Home” or “Property”). They
settled on the land before the State of Arizona even
existed.
In 1910, Congress passed the New Mexico-Arizona
Enabling Act, which paved the way for the establishment of the States of Arizona and New Mexico.
See generally, Lassen v. Arizona ex rel. Arizona
Highway Dep’t, 385 U.S. 458, 462 (1967); A.R.S.,
Enab. Act, Sec. 28. In lieu of giving the new states
money to fund themselves, Congress instead gave
them land, which was earmarked for various pur-

 7
poses such as supporting the public schools.3 In
selecting the land, Congress used the federal survey,
a “rigid checkerboard pattern”4 that was placed over
the State map. Congress provided in the Enabling
Act that every “Section 16” on the federal survey
(i.e., every sixteenth “checker” on the “checkerboard”)5 would be State land dedicated to “the
support of the common [public] schools” (a.k.a.
“school trust land”)—regardless of whether some3 From Lassen v. Arizona ex rel. Arizona Highway
Dep’t, 385 U.S. 458, 460 (1967): “The Federal Government since the Northwest Ordinance of 1787 has
made such grants to States newly admitted to the
Union.” “Between 1803 and 1962, the United States
granted a total of some 330,000,000 acres to the
States for all purposes. Of these, some 78,000,000
acres were given in support of common schools.” In
Arizona, “some 10,790,000 acres” were granted by
the United States to Arizona “in trust for the use and
benefit of designated public activities within the
State.” “[S]ome 9,180,000 acres were earmarked for
various educational purposes, of which some
8,000,000 acres were given for the support of common schools.”
4 Lassen v. Arizona ex rel. Arizona Highway Dep’t,
385 U.S. at 463. Arizona and New Mexico were
granted four times as much land as other states,
“because the unappropriated lands in Arizona and
New Mexico were largely of so little value.”
5 See A.R.S., Enab. Act, Sec. 24: “…sections sixteen
and thirty-six [in addition to sections] two and thirty-two …are hereby granted to the said state for the
support of common schools…”

 8
body had already been living there and had built a
home, or had otherwise cultivated or improved the
land.6 The Sussex family’s home happened to fall on
a “Section 16” on the federal survey; and so when
the State was founded in 1912, the Sussexes effectively became trespassers in their own home, overnight.7
The Sussexes were not alone. In fact, the problem of
“good citizens” who had already settled on what
suddenly became State land was so common when
the State was founded, that it was debated at the
Arizona Constitutional Convention, and it resulted
in the only letter that the Convention ever sent to

6 “It was not supposed that Arizona would retain
all the lands given it for actual use by the beneficiaries; the lands were obviously too extensive and too
often inappropriate for the selected purposes. Congress could scarcely have expected, for example, that
many of the 8,000,000 acres of its grant ‘for the
support of the common schools,’ all chosen without
regard to topography or school needs, would be
employed as building sites. It intended instead that
Arizona would use the general powers of sale and
lease given it by the Act to accumulate funds with
which it could support its schools…”
7 The federal government actually held on to (reserved) the Sussexes’ particular section until the
1960’s (for purposes of the Salt River Project), before
formally transferring it over to the State of Arizona—a nuance that has little to no bearing on the
instant case.

 9
Congress (called “Memorial No. 1”).8 In that letter—
which the Convention voted overwhelmingly to send
(41 to 7)—it asked Congress for more leeway to
compensate the occupants of state lands for their
improvements. Congress never responded.
Further, Congress was extremely restrictive in the
Enabling Act about how the State could or could not
dispose of public land.9 This was mainly due to an
8 Discussing the letter, Convention delegate W.T.
Webb said: “[It] will protect the interest of the poor.
Many good citizens have taken up school lands and
have cultivated, improved and built homes thereon
and are good honest industrious people, and they
should be protected in these homes and in this
land…” Convention Delegate A.C. Baker (and later,
second Chief Justice of the Arizona Supreme Court)
also remarked that “[f]or the benefit of many people,
who are the best class of citizens and who have
established themselves upon this land and spent
much labor and means to cultivate and improve it,
they should have protection…There are provisions
for these school lands, but they are not acceptable to
all and do not [protect] the people who have spent
their time, means and best efforts upon them. It is
but right that they should have this protection.” The
Records of the Arizona Constitutional Convention of
1910 at 716-717 (John S. Goff, ed., 1991).
9 See also Gladden Farms, Inc. v. State, 129 Ariz.
516, 518, 633 P.2d 325, 327 (1981): “The practice of
granting newly admitted states title to federal lands
in trust for certain designated public purposes has
been in existence since the Northwest Ordinance of
1787. The new states have not always treated the

 10
earlier experience with land grants to New Mexico,
where New Mexican state officials had allegedly
sold the land privately and at “unreasonably low
prices” for “private advantage.”10 In order to prevent
trust lands in the manner in which Congress intended, and certain abuses and fraud have occurred.
Because of past abuses, Arizona and New Mexico, as
the last of the 48 contiguous states to enter the
Union, were provided with an Enabling Act somewhat stricter than those under which previous states
had entered the Union.”
10 From Lassen v. Arizona ex rel. Arizona Highway
Dep't, 385 U.S. 458, 463–64 (1967): “The central
problem which confronted the [Arizona-New Mexico
Enabling] Act’s draftsmen was…to devise constraints
which would assure that the trust received in full
fair compensation for trust lands.…This is confirmed
by the legislative history of the Enabling Act. All the
restrictions on the use and disposition of the trust
lands, including those on the powers of sale and
lease, were first inserted by the Senate Committee
on the Territories. Senator Beveridge, the committee's chairman, made clear on the floor of the Senate
that the committee's determination to require the
restrictions sprang from its fear that the trust would
be exploited for private advantage. He emphasized
that the committee was influenced chiefly by the
repeated violations of a similar grant made to New
Mexico in 1898. The violations had there allegedly
consisted of private sales at unreasonably low prices,
and the committee evidently hoped to prevent such
depredations here by requiring public notice and
sale. The restrictions were thus intended to guarantee, by preventing particular abuses through the

 11
this, Congress included very strict provisions in the
Arizona Enabling Act—which supersedes even the
Arizona Constitution—which plainly prohibit the
State from transferring away public land except via
a public auction, and with proper notice. “The Enabling Act is itself quite clear: ‘Said lands shall not be
sold, except to the highest and best bidder at the
public auction.’ The only exception to the plain clear
language of this Act is in the granting of an easement or right of way and then only because no fee
interest is involved, and because there is nothing in
the Enabling Act limiting the power of the legislature to grant right of way easements for public
highways.” Gladden Farms, Inc. v. State, 129 Ariz.
516, 521, 633 P.2d 325, 330 (1981)(internal quotation marks omitted).
The full provision requiring auctions for “school
trust” land is contained in Section 28 of the New
Mexico-Arizona Enabling Act (quoted above). Article
10 of the Arizona Constitution, entitled “State and
School Lands,” also incorporates those provisions of
the Enabling Act verbatim. Gladden Farms, Inc. v.
State, 129 Ariz. at 518, 633 P.2d at 327.
II.

History of the Sussexes

Defendant Steven Sussex’s great-grandfather, Jesus
Martinez, purchased the home at issue from another
settler named Ramon Gonzales in 1892. The house
itself was built in 1882, making it one of the three
oldest homes left standing in the Valley of the Sun.
At that time, it was common for settlers to buy and
prohibition of specific practices, that the trust received appropriate compensation for trust lands.”

 12
sell land amongst themselves without recording a
deed, and so no deed was ever recorded.
Jesus Martinez’s daughter, Belen Martinez, married
a settler named Alfred Sussex, who was Steve
Sussex’s grandfather. The Sussexes’ address at the
home was listed in the City Directory in 1892; and
the marriage (and honeymoon) of Belen and Alfred
were announced publicly in the predecessor to The
Arizona Republic, The Arizona Republican, in
articles dated July 18, 1913 and July 26, 1913.
On April 10, 1959, the State of Arizona sent “Ms.
A[lfred] E. Sussex,” i.e. Belen Sussex, a check for
$1,510.00 as compensation because a contractor for
the State had accidentally demolished some of the
Sussexes’ improvements on the property.
When Belen died in 1967, she transferred her rights
in the property to Defendant Steven Sussex. From
1972 to 1986, Steven Sussex openly operated a
painting business out of the Home. Various members of the Sussex family have lived in the Home, or
otherwise continuously occupied the property with
Mr. Sussex’s permission, ever since 1967. The
Sussexes have maintained a gate around the property for decades, lock the Home to prevent burglary,
and they have reported trespassers on the property
(vagrants, etc.) to the police. Since at least the
1980’s, Mr. Sussex has continuously and openly
stored items and vehicles on the Property, and
completed work on the Property. The Home is one of
the three oldest homes in the entire Valley of the
Sun.

 13
III.

Tempe’s Purported Acquisition of Title

In 2002, the State of Arizona, the Union Pacific
Railroad Company (“UPRC”) and the City negotiated a sale of the Home and adjoining parcels along
the railroad from the State to the UPRC on December 18, 2002, and then another sale from the UPRC
to the City days later, on December 24, 2002. The
land was not auctioned off, as required by the Arizona Constitution and the Enabling Act. This is of
course critical to the Sussex family, because if the
land had been put up for auction, then the Sussexes
(or sympathetic parties) could have bid on the home.
Instead, the land was privately sold to the City,
which has, ever since then, claimed that it has
absolute sovereign immunity from the Sussexes’
claims.
The State and UPRC were clearly aware that the
sale was in violation of the Enabling Act, as discussed below. In a transparent effort to try to avoid
the Enabling Act, the State and UPRC structured
their deal as a “settlement” of a lawsuit by the
UPRC against the State, in which the UPRC
claimed title to the Property. The UPRC paid the
State one million, fifty thousand dollars
($1,050,000.00) to “settle” its own suit for title, in
return for which the State quitclaimed various
property, including the Property at issue, to the
UPRC. Days later, the UPRC then quitclaimed that
property (including the Property at issue) to the
City, for which the City agreed to pay it $550,000.
The six-paragraph “Settlement Agreement” between
the State and the UPRC states the $1,050,000.00
purchase price, and it contains a description of the
UPRC’s questionable claim to title, which was

 14
allegedly based on a (wild) deed from a third party
(Charles Appleton Hoover) dated 1887, and a purported right-of-way granted by the United States in
1875. Tellingly, the sixth and final paragraph of the
“Settlement Agreement” read as follows:
6. Notwithstanding any other recital or provision of this Settlement Agreement to the contrary, the Parties agree that this Settlement
Agreement will, at the option of either Party,
be null and void ab initio with the Parties
having no liability to one another under this
Settlement Agreement if any Arizona State
Court of Federal District Court, including,
without limitation, any appellate court, shall
have declared all or any portion of this Settlement Agreement or the Quit Claim Deed
unconstitutional or otherwise unlawful
pursuant to [the] Enabling Act, or shall
have restrained or enjoined the performance
of any portion of this Settlement Agreement.
(Emphasis added).
Finally, neither the UPRC nor the City (nor the
State) has ever used, possessed, or occupied the
Sussexes’ property or Home.
IV.

Conflict with the Enabling Act

The federal Arizona Enabling Act strictly provides
that the State may not dispose of public lands
except at a public auction conducted with notice;
and that any transfer in violation of the Act “shall
be null and void, any provisions of the constitution

 15
or laws of the said state to the contrary notwithstanding.” The land at issue was indisputably
located on “Section 16” land, which was subject to
this provision of the Enabling Act. Allowing school
trust land to be transferred without an auction and
via private agreement – no matter how that agreement is characterized, whether it be as a “settlement agreement” or as a “purchase agreement”—is
a patent violation of the Enabling Act, making the
agreement null and void, along with any subsequent
claim to title made upon it. The Enabling Act is
clear that any transfer of public land without an
auction is null and void. “The Enabling Act is one of
the fundamental laws of the State of Arizona and is
superior to the Constitution of the State of Arizona,
in that neither the Arizona Constitution nor laws
enacted pursuant thereto may be in conflict.” Gladden Farms, 129 Ariz. at 518, 633 P.2d at 327. “The
Enabling Act is the fundamental and paramount
law in Arizona,” and “[i]n dealing with trust lands in
particular, all doubts must be resolved in favor of
protecting and preserving trust purposes.” United
States v. New Mexico, 536 F.2d 1324, 1326–27 (10th
Cir. 1976). “[T]he general intent of Congress [in the
New Mexico-Arizona Enabling Act] is clear. It
intended the Enabling Act to severely circumscribe
the power of state government to deal with the
assets of the common school trust. The duties imposed upon the state were the duties of a trustee
and not simply the duties of a good business manager. The grant in trust was intended to curb the
power of the state to deal with the trust
lands…Thus, to comply with congressional intent,
we must strictly apply the Enabling Act’s restrictions regarding disposal of school trust assets.”

 16
Kadish v. Arizona State Land Dep’t, 155 Ariz. 484,
487–88, 747 P.2d 1183, 1186–87 (1987), aff’d sub
nom. ASARCO Inc. v. Kadish, 490 U.S. 605
(1989)(internal citations omitted). “We have no right
to delete terms from the plain language of [Arizona
Constitution’s] text. The Arizona Constitution
clearly describes public auction as the proper method of disposal of our school trust land. We cannot
permit disposals that do not fit within the scope of
the enumerated methods.” Deer Valley Unified Sch.
Dist. No. 97 of Maricopa Cty. v. Superior Court In &
For Maricopa Cty., 157 Ariz. 537, 540–41, 760 P.2d
537, 540–41 (1988).
A “no harm, no foul” test does not apply—in other
words, even if a property is sold for what the parties
claim (or could even prove) was a reasonable market
value, then the sale is still null and void if it did not
occur at a public auction with notice. Gladden
Farms, 129 Ariz. at 520–21, 633 P.2d at 329–30. The
reason for this is not only because of the plain
language of the Constitution and Enabling Act, but
also because “the price received for public sale might
still be higher than the appraised value…[I]ndeed
most sales of state land at auction are, in fact, for a
price higher than the appraised value.” Id. The
Arizona Supreme Court has made clear that “we do
not believe that [a] sale without auction and bid
assures the ‘highest and best’ price that the Enabling Act requires.” Id., 129 Ariz. at 521, 633 P.2d at
330. In Kadish v. Arizona State Land Dept., the
Arizona Supreme Court rejected the theory that the
disposition of state land is in substantial conformity
with the Enabling Act so long as it has an “overall
beneficial effect,” where it did not strictly comply

 17
with the Enabling Act’s requirements (in that case,
the requirement that the value of the lease be
appraised, and not be auctioned off for less than its
market value). 155 Ariz. at 497. The caselaw—both
in Arizona and New Mexico—is replete with numerous other examples of leases or sales (or even statutory schemes) which the court found to be null and
void because of a failure to comply with the Enabling Act’s strict requirements, including the most
basic requirement for a public auction with notice;
see e.g. Farmers Inv. Co. v. Pima Mining Co., 111
Ariz. 56, 523 P.2d 487 (1974)(finding sale of timber
derived from state land to be null and void, where it
was not sold at a public auction); Fain Land &
Cattle Co. v. Hassell, 163 Ariz. 587, 593, 790 P.2d
242, 248 (1990)(finding that statute which allowed
for exchange of private land for public land without
an auction was null and void under Enabling Act);
State ex rel. King v. Lyons, 149 N.M. 330
(2011)(same, finding that New Mexico statute
allowing exchanges of private property for public
property without an auction was in violation of New
Mexico-Arizona Enabling Act).
Because the State of Arizona clearly did not conduct
an auction of the property of issue here—at all—
then the transfer of school land from the State of
Arizona to the UPRC under the Settlement Agreement was clearly not in “substantial conformity”
with the Enabling Act. Therefore, the Settlement
Agreement, and the associated quitclaim deeds from
the State of Arizona to the UPRC and then from the
UPRC to the City of Tempe, are null and void.

 18
The lower court found that the Sussexes’ defense
under the Enabling Act was barred by the state-law
statute of limitations for claims against a “public
entity” in A.R.S. § 12-821. Even setting aside the
fact that applying a statute of limitations to bar a
defense to a claim makes no sense, a statute of
limitations like A.R.S. § 12-821 is inapplicable
because the Enabling Act operates “automatically”
to render a transfer of title “null and void,” and the
Act expressly provides that transfers in violation of
the Act are null and void notwithstanding “any
provision of the contitution or laws of [Arizona] to
the contrary.” Sec. 28 of the Arizona-New Mexico
Enabling Act. The Enabling Act took effect without
the Defendants needing to raise it by filing a suit or
counterclaim in order to give its terms effect. See
e.g. Princess Plaza Partners v. State, 187 Ariz. 214,
219, 928 P.2d 638, 643 (App. 1995)(“[a]s a sanction,
the Enabling Act provides that any disposition of
the trust land not in substantial conformity with its
provisions is null and void, despite any provisions of
Arizona’s constitution and laws to the contrary”)(emphasis added, internal quotation marks
omitted). The lower courts essentially ruled that a
transfer is void only if the Sussex family brings it to
court within one year of learning about it, which is
directly contrary to the text of the Enabling Act and
the decisions of this Court interpreting its plain
language. See e.g. ASARCO Inc. v. Kadish, 490 U.S.
605, 626, 109 S. Ct. 2037, 2050, 104 L. Ed. 2d 696
(1989)(“Under the conditions [of the Act], the granted lands could not be sold or leased except to the
highest bidder at a public auction following notice
by advertisements in two newspapers weekly for 10
weeks… Disposition of any of said lands, or of any

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money or thing of value directly or indirectly derived
therefrom, in any manner contrary to the provisions
of [the] Act, shall be deemed a breach of trust. Any
such disposition is expressly stated to be null and
void unless made in substantial conformity with the
provisions of [the] Act.”)(Internal ellipses and quotation marks omitted.)
By applying a state statute of limitations to “overrule” the Enabling Act, the Arizona Court of Appeals
has violated the Enabling Act and decided an important federal question in a way that conflicts with
relevant decisions of this Court. “The Court's concern for the integrity of the conditions imposed by
the [Enabling Act] has long been evident.” ASARCO,
490 U.S. at 633. The Court should therefore grant
review.
CONCLUSION
For the foregoing reasons, this Petition for Writ of
Certiorari should be granted.
Respectfully submitted,
JOHN D. WILENCHIK
WILENCHIK &
BARTNESS, P.C.
2810 N. Third St.
Phoenix, AZ 85004
(602) 606-2810
jackw@wb-law.com
Counsel for Petitioner