Molera v. Reagan

• Decision Date: 26 October 2018
• Docket Number: No. CV-18-0218-AP/EL,CV-18-0218-AP/EL
• Citation: 428 P.3d 490
• Parties: Jaime MOLERA, et al., Plaintiffs/Petitioners/Appellants, v. Michele REAGAN, in her Capacity as the Secretary of State of Arizona, Defendant/Respondent/Appellee, and Invest in Education Committee, a Political Action Committee, Real Party in Interest/Appellee. Invest in Education Committee, a Political Action Committee; Joshua Buckley, an Individual, Cross-Plaintiffs/Appellees. v. Michele Reagan, in her Capacity as the Secretary of State of Arizona, Cross-Defendant/Appellant, and J.D. Mesnard, in his Official Capacity as the Speaker of the Arizona House of Representatives; and Steven B. Yarbrough, in his Official Capacity as President of the Arizona Senate, Intervenors in the Cross-Claim/Appellants.
• Court: Arizona Supreme Court

428 P.3d 490

Jaime MOLERA, et al., Plaintiffs/Petitioners/Appellants,

v.Michele REAGAN, in her Capacity as the Secretary of State of Arizona, Defendant/Respondent/Appellee,andInvest in Education Committee, a Political Action Committee, Real Party in Interest/Appellee.

Invest in Education Committee, a Political Action Committee; Joshua Buckley, an Individual, Cross-Plaintiffs/Appellees.

v.Michele Reagan, in her Capacity as the Secretary of State of Arizona, Cross-Defendant/Appellant,andJ.D. Mesnard, in his Official Capacity as the Speaker of the Arizona House of Representatives; and Steven B. Yarbrough, in his Official Capacity as President of the Arizona Senate, Intervenors in the Cross-Claim/Appellants.

No. CV-18-0218-AP/EL

Supreme Court of Arizona.

Filed October 26, 2018

Kory Langhofer, Thomas Basile, Stewart Salwin, Statecraft, PLLC, Phoenix, Attorneys for Jaime Molera, Jennifer Henricks, J.D. Mesnard and Steven B. Yarbrough

Kara Karlson, Assistant Attorney General, Joseph Eugene La Rue, Assistant Attorney General, Arizona Attorney General’s Office, Phoenix, Attorneys for Michele Reagan

Israel G. Torres, James E. Barton, II, Saman J. Golestan, Torres Law Group, PLLC, Tempe, Attorneys for Invest in Education Committee

Timothy A. La Sota, Timothy A. La Sota, PLC, Phoenix, Attorneys for Amicus Curiae The Arizona Free Enterprise Club

Brett W. Johnson, Jennifer Hadley Catero, Colin P. Ahler, Andrew Sniegowski, Brianna Long, Lindsay Short, Snell & Wilmer L.L.P., Phoenix, Attorneys for Amicus Curiae State Representative Vince Leach

Roopali H. Desai, D. Andrew Gaona, Coopersmith Brockelman PLC, Phoenix; Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Attorneys for Amici Curiae Matthew G. Madonna; Sandra L. Bahr; Animal Defense League of Arizona; Friends of ASBA, Inc.; Arizona Advocacy Network; and Planned Parenthood Advocates of Arizona

Timothy Sandefur, Scarf-Norton Center for Constitutional Litigation, the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Andrew G. Pappas, Assistant Solicitor General, Phoenix, Attorneys for Amicus Curiae State of Arizona

Robert G. Schaffer, Lewis Roca Rothgerber Christie LLP, Phoenix, Attorneys for Amici Curiae Greater Phoenix Chamber and Home Builders Association of Central Arizona

The Court issued a per curiam decision joined by VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, BOLICK, GOULD, and LOPEZ. CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, authored a dissenting opinion. JUSTICE TIMMER authored a separate dissenting opinion.

PER CURIAM:

¶ 1 In this opinion, we explain the reasons for our prior order disqualifying the Invest in Education Act initiative from the November 2018 general election ballot. We greatly respect the initiative process, including the civic activism required to collect the signatures necessary to qualify a ballot measure, and we do not lightly disturb the fruits of such efforts. However, we must do so, as the Court has done in various prior circumstances, when essential requirements necessary to qualify a measure are not adequately followed. We hold here that the initiative’s proponents did not comply with the requirements of A.R.S. § 19-102(A) because their description of the initiative’s principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot.

I.

¶ 2 On April 30, 2018, the Invest in Education Committee ("Committee") filed with the Secretary of State a proposed initiative called the "Invest in Education Act," which would increase K–12 education funding and raise certain income tax rates to support it. As required by § 19-102(A), the Committee prepared a 100-word initiative description for placement on the petitions to qualify the measure for the ballot. The description provided:

The Invest in Education Act increases the classroom site fund by raising the income tax rate by 3.46% on individual incomes over a quarter million dollars (or household incomes over half a million dollars), and by 4.46% on individual incomes over half a million dollars (or household incomes over a million dollars); designates 60% of new funds for teacher salaries and 40% for operations; adds full day kindergarten and pay raises for student support services personnel as permitted fund uses; requires governing boards seek teacher and personnel input on fund use plans; defines teacher and student support services personnel.

¶ 3 The petitions also contained the following language required by § 19-102(A) :

Notice: This is only a description of the proposed measure (or constitutional amendment) prepared by the sponsor of the measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure are attached. You have the right to read or examine the title and text before signing.

¶ 4 On July 5, the Committee submitted approximately 270,000 signatures to the Secretary of State in support of the initiative. Although the Secretary invalidated some petition sheets, she determined that the Committee filed a sufficient number of valid signatures to qualify the initiative for the ballot.

¶ 5 Petitioners Jaime Molera and Jennifer Henricks ("Petitioners") filed a special action in Maricopa County Superior Court seeking to invalidate the initiative because (1) the 100-word initiative description was misleading in that it mischaracterized the size of the proposed tax increase and omitted a change in income tax indexing; and (2) although § 19-102(D) requires a circulator to check a box on petition sheets to indicate whether he or she is paid, a third party pre-marked the boxes on most petition sheets. The Committee filed a cross-complaint challenging the constitutionality of A.R.S. § 19-102.01(A), which requires strict compliance with constitutional and statutory requirements for statewide initiatives. The Committee also sought to restore some of the petition sheets invalidated by the Secretary of State.

¶ 6 The superior court ruled that § 19-102.01 is unconstitutional, that both the 100-word description and the pre-checked circulator boxes satisfied statutory requirements, and that the Secretary of State erroneously excluded some petition sheets. The court thus concluded that the initiative was eligible for the ballot.

¶ 7 Pursuant to A.R.S. § 19-122(C), Petitioners filed an expedited appeal in this Court contesting all but the last of those rulings. Following our review, we issued an order determining that the 100-word initiative description created a significant danger of confusion or unfairness, thus invalidating the petition. As a result, we do not decide the other issues raised in the appeal. We set forth the reasoning for our conclusion below.

¶ 8 The only issue before us involves interpretation and application of constitutional and statutory provisions regarding initiatives, which we review de novo. See Pedersen v. Bennett , 230 Ariz. 556, 558 ¶ 6, 288 P.3d 760, 762 (2012). We have jurisdiction over this matter pursuant to article 6, section 5(3) of the Arizona Constitution.

II.

¶ 9 The Arizona Constitution reserves to this state’s citizens the power to propose and enact laws by initiative. Ariz. Const. art. 4, pt. 1, § 1 (1)–(2). Under our constitutional separation of powers, the courts must not intrude upon the people’s power to legislate, subject to constitutional and proper statutory requirements. See Kromko v. Superior Court , 168 Ariz. 51, 57–58, 811 P.2d 12, 18–19 (1991). This Court has observed that the citizens’ legislative authority "is as great as the power of the Legislature to legislate." State ex rel. Bullard v. Osborn , 16 Ariz. 247, 250, 143 P. 117 (1914) ; accord Cave Creek Unified Sch. Dist. v. Ducey , 233 Ariz. 1, 4 ¶ 8, 308 P.3d 1152, 1155 (2013). Indeed, with the enactment through initiative of the Voter Protection Act, legislation enacted by the voters is even more consequential, such that the legislature cannot repeal an initiative-enacted law and may only modify it by a three-fourths vote when the changes further the law’s purposes. See Ariz. Const. art. 4, pt. 1, § 1 (6)(C); see, e.g. , State v. Maestas , 244 Ariz. 9, 13–14 ¶¶ 19–20, 417 P.3d 774, 778–79 (2018) (striking down legislation restricting the possession of marijuana on college campuses because it did not further the purposes of the Arizona Medical Marijuana Act); Cave Creek , 233 Ariz. at 4, 7–8 ¶¶ 9, 25, 308 P.3d at 1155, 1158–59 (concluding that legislative adjustments to voter-approved funding scheme for public education violated the Voter Protection Act).

¶ 10 Just as the legislature must comply with restrictions on its lawmaking powers, see, e.g. , Ariz. Const. art. 4, pt. 2, § 19 (prohibiting the legislature from enacting local or special laws); Ariz. Const. art. 21, § 1 (requiring the legislature to refer constitutional amendments to voters separately), so too must the people comply with appropriate regulation of the initiative process. Article 4, part 1, section 1(14) of the Arizona Constitution provides that the initiative power "shall not be construed to deprive the legislature of the right to enact any measure except that the legislature shall not have the power to adopt any measure that supersedes" an enacted initiative. Further, article 7, section 12 directs the legislature to enact "registration and other laws to secure the purity of elections and guard against abuses of the elective franchise."

¶ 11 Thus, although our decisions safeguard the voters’ legislative power, this Court in many cases has invalidated citizen initiatives and referenda that did not comply with applicable requirements. See, e.g. , Transp. Infrastructure Moving Ariz.’s Econ. v. Brewer , 219 Ariz. 207, 211–14 ¶¶ 17–36, 196 P.3d 229, 233–36 (2008) (upholding dismissal of challenge to Secretary of State’s invalidation of ballot...