Bentley v. Building Our Future

• Decision Date: 20 December 2007
• Docket Number: No. 1 CA-CV 07-0165.,1 CA-CV 07-0165.
• Citation: 172 P.3d 860,217 Ariz. 265
• Parties: Linda BENTLEY and G. Russel Childress, Plaintiffs/Appellees, v. BUILDING OUR FUTURE, a Political Action Committee, Yes on Props 1, 2,3,4,5,6,7, Defendant/Appellant.
• Court: Arizona Court of Appeals

172 P.3d 860

217 Ariz. 265

Linda BENTLEY and G. Russel Childress, Plaintiffs/Appellees, v. BUILDING OUR FUTURE, a Political Action Committee, Yes on Props 1, 2,3,4,5,6,7, Defendant/Appellant.

No. 1 CA-CV 07-0165.

Court of Appeals of Arizona, Division 1, Department C.

December 20, 2007.

Carol Lynn de Szendeffy By Carol Lynn de Szendeffy, Carefree, Attorney for Plaintiffs/Appellees.

Coppersmith Gordon Schermer & Brockelman PLC By Andrew S. Gordon, Lauren J. Weinzweig, Phoenix, Attorneys for Defendant/Appellant.

OPINION

KESSLER, Judge.

¶ 1 Building Our Future ("BOF") appeals the superior court's holding that BOF violated Arizona Revised Statutes ("A.R.S.") section 16-912.01 (2006) ("the Act"), and the court's granting of summary judgment and awarding of $1.3 million dollars in favor of Linda Bentley and G. Russel Childress ("Bentley/Childress").¹ We hold that BOF's advertisements supporting seven bond propositions were not "more than fifty percent devoted to ... the same subject," as required for the disclosure provisions of the Act to apply. A.R.S. § 16-912.01(H). Accordingly, we vacate the judgment and direct the trial court on remand to enter summary judgment for BOF.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In February 2006, Bentley/Childress filed an action against BOF alleging that BOF's advertisements for seven ballot propositions in a special bond election² did not comply with the requirements of A.R.S. § 16-912.01(A).³ Bentley/Childress alleged BOF was liable because, among other things, it failed to accurately identify its four major funding sources on its advertisements in support of the seven propositions and failed to print the disclosures in a size at least as large as the majority of the printed text in violation of A.R.S. § 16-912.01(E).⁴ In its answer, BOF contended in part that the disclosure provision of A.R.S. § 16-912.01(E) was inapplicable to its advertisements because A.R.S. § 16-912.01(H) provides that the disclosure requirements only apply to "advertisements the contents of which are more than fifty per cent devoted to one or more ballot propositions or proposed measures on the same subject." (Emphasis added). BOF's advertisements read, "Vote Yes. 7 Phoenix Bonds With No New Taxes." BOF contended that the seven bond issues did not deal with the "same subject".

¶ 3 The parties filed motions for summary judgment. Bentley/Childress argued "[a]ll seven of the City of Phoenix bond propositions contain the common thread of building, renovating and/or expanding government facilities" and that "[m]any of the bonds are so interdependent that if one portion of one bond did not pass it would leave other bonds incomplete." Thus, they argued,

[f]or example: Proposition 4 includes demolition/improvement of a Salvation Army Center, restoration of the Historic Ellis-Shackleford House, and other buildings, partial funding for a YMCA gym, and land acquisitions for a variety of other projects and open space while Proposition 5 includes building and expanding libraries and cultural facilities, buildings for nonprofit organizations, Traffic Counting/Parking Meter/Right-of-Way Management Offices along with Phoenix City Hall Renovations. Proposition 1 includes a Family Advocacy Center, which will be occupied primarily by nonprofit organizations. Proposition 6 includes revitalization and historic preservation projects, plus land acquisition for various downtown projects, while Proposition 7 includes downtown streetscape, trails and connectivity improvements and downtown gateways and oases, which are directly connected to Proposition 3, which includes the ASU downtown campus U of A College of Pharmacy and other projects, and Proposition 6, which includes subsidized housing development and downtown land purchases, whereas portions of the same project are found in multiple bonds. So if one bond failed then portions of another bond that passed would either be meaningless or simply provide for an incomplete project. [ ] Another example is Proposition 1, which is primarily for improving and expanding the city's police, fire protection and homeland security systems, while Proposition 2 includes Traffic Preemption for fire trucks and expansion of the Police Communications Center, which, without increasing the number of precincts proposed in Proposition 1, would not be necessary.

¶ 4 Bentley/Childress also asserted that "[t]he interdependence and overlapping of all seven bonds is born (sic) out in how Phoenix presented [the propositions as a package]." Bentley/Childress described the bonds and how they were promoted as a "single global funding program to support the city in its entirety."

¶ 5 BOF argued that the seven propositions were not on the "same subject" because they contemplated a variety of purposes. BOF also argued that the determination that the propositions were not on the "same subject" was in part supported by the existence of other groups and individuals with varying degrees of support and opposition for specific propositions.⁵

¶ 6 In their motions for summary judgment, the parties did not cite legal authority to support or discredit their obviously differing interpretations of the Act's reference to "same subject," nor did they explicitly advance any interpretation of the meaning of "same subject" supported by legal authority or evidence of legislative intent.⁶

¶ 7 According to the Informational Pamphlet sent to voters before the election, the "proposed bond program" was to "authorize the issuance of general obligation bonds in an amount not to exceed $878.5 million. The ballot will consist of seven propositions that are intended to provide bond funding for the City's property tax-supported capital improvement program over the next five fiscal years". The seven bond ballot propositions were described in the Informational Pamphlet as follows:

Proposition 1) Strengthening Police, Fire and Homeland Security ($177 million, 20% of total); 2) Using Technology to Improve Police, Fire Protection, Government Efficiency, Customer Service and Access to Voting ($16.1 million, 2% of total); 3) Building Small High Schools, Higher Education and Health Science Facilities ($198.7 million, 22% of total); 4) Increasing Recreational Opportunities with New Parks and Open Spaces ($120.5 million, 14% of total); 5) Serving Our Community with Libraries and Youth, Senior and Cultural Centers ($133.8 million, 15% of total); 6) Providing Housing that is Affordable to Families and Seniors and Revitalizing Neighborhoods ($85 million, 10% of total); 7) Constructing Streets and Storm Sewers for Better Infrastructure ($147.4 million, 17% of total).

¶ 8 Noting that "[t]he parties do not disagree as to the material facts at issue, rather they disagree as to the legal effect of those facts, and the application of Arizona's political campaign disclosure law",⁷ the superior court granted summary judgment for Bentley/Childress. As to the "same subject" issue, the court found that,

[a]lthough all bond issues relate to government spending of one sort or another, if the "same subject" is construed to mean propositions which are closely related and which further the same purposes, this construction would include overlapping and interdependent ballot propositions presented together as a package, precisely such as the propositions at issue. This construction also furthers the public policy of protecting the integrity of the political process by requiring disclosure of financial contributors. The Court adopts this construction and determines that Defendant is not exempt from the disclosure requirements based on the "same subject" exception.

The court also awarded Bentley/Childress $1.3 million in mandatory statutory penalties for BOF's violation of the Act. A.R.S § 16-912.01(I).

¶ 9 BOF timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(B) (2003).

DISCUSSION

¶ 10 BOF raises five issues on appeal. Since we agree with BOF that the seven bond propositions did not deal with the same subject and thus the disclosure provisions of the Act did not apply to BOF's advertisements, we do not address the other issues.⁸

Standard of Review

¶ 11 We review issues of law involving statutory interpretation and a trial court's grant of summary judgment de novo. Twin Peaks Constr. Inc. v. Weatherguard Metal Constr., Inc., 214 Ariz. 476, 477-78, ¶¶ 5-6, 154 P.3d 378, 379-80 (App.2007); Great Am. Mortgage, Inc. v. Statewide Ins. Co., 189 Ariz. 123, 124-25, 938 P.2d 1124, 1125-26 (App.1997). If possible we construe statutes "to avoid rendering them unconstitutional," and "to avoid unnecessary resolution of constitutional issues." Hayes v. Continental Ins. Co., 178 Ariz. 264, 272-73, 872 P.2d 668, 676-77 (1994). "When cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants." Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 400, ¶ 37, 87 P.3d 81, 88 (App.2004).

¶ 12 In construing a statute, the starting point is the language of the statute itself "because we expect it to be `the best and most reliable index of a statute's meaning.'" Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (citations omitted); Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991); Barry v. Alberty, 173 Ariz. 387, 390, 843 P.2d 1279, 1282 (App. 1992). See also Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994) ("Where the [statutory] language is plain and unambiguous, courts must generally follow the text as written."). The Canon court reiterated,

[i]t is only where there is no doubt as to the intention of those who frame [a] ... statute that a court may modify, alter or supply words that will "obviate any repugnancy to or inconsistency with such intention," and by so doing permit "particular...