Direct Sellers Ass'n v. McBrayer

• Decision Date: 05 December 1972
• Docket Number: No. 10858--PR,10858--PR
• Citation: 109 Ariz. 3,503 P.2d 951
• Parties: DIRECT SELLERS ASSOCIATION of Arizona, and Frank Hoeschler, Appellants, v. Arthur McBRAYER, Maricopa County Legal Aid Society, in behalf of themselves and others similarly situated, Wesley Bolin, Secretary of State, State of Arizona, Appellees.
• Court: Arizona Supreme Court

Page 951

503 P.2d 951

109 Ariz. 3

DIRECT SELLERS ASSOCIATION of Arizona, and Frank Hoeschler, Appellants, v. Arthur McBRAYER, Maricopa County Legal Aid Society, in behalf of themselves and others similarly situated, Wesley Bolin, Secretary of State, State of Arizona, Appellees.

No. 10858--PR.

Supreme Court of Arizona, In Banc.

Dec. 5, 1972.

Rehearing Denied Jan. 2, 1973.

Hughes, Hughes & Conlan by John C. Hughes, Phoenix, for appellants.

Estrada & Estrada by W. Clifford Girard, Jr., Phoenix, for appellee McBrayer.

Jerry Levine, Tempe, for appellee Maricopa County Legal Aid Society.

Gary K. Nelson, Atty. Gen. by Frank Sagarino, Asst. Atty. Gen., Phoenix, for appellee Wesley Bolin.

HAYS, Chief Justice.

This case comes to us on a petition to review the decision of the Court of Appeals in 16 Ariz.App. 231, 492 P.2d 727 (1972), which decision is vacated.

The case involves the constitutionality of the legislative enactments dealing with referendum measures and the legal sufficiency of referendum petitions lacking the verification required by A.R.S. §§ 19--112 and 19--114 that the circulator was a qualified elector of the State of Arizona.

During the second regular session of the 29th legislature, House Bill 102 (the Home Solicitation Act) was passed and subsequently signed into law by the governor. A.R.S. § 44--5001 et seq. This legislation regulated the direct selling of merchandise to the public in their homes and would have become effective ninety days following the adjournment of the legislative session in which it was passed--i.e., on August 11, 1970. On August 10, 1970, one day prior to the effective date of the Home Solicitation Act, Hoeschler and Direct Sellers Association (D.S.A.) filed petitions purportedly containing 30,000 signatures in an attempt to have the newly-enacted legislation placed on the ballot by way of referendum. Article 4, part 1, § 1, of the Arizona Constitution, A.R.S. On September 11, 1970, McBrayer and the Maricopa County Legal Aid Society filed a special action, seeking to have the petitions for referendum declared null and void because of an alleged failure to comply with the circulators' statutory affidavit forms and to enjoin the Secretary of State from placing the referendum measure on the ballot. D.S.A. and Hoeschler filed a motion to intervene and a cross-claim, the cross-claim alleging that the statutory time within which to allow arguments pro and con to the measure could not be met. A.R.S. §§ 19--123, 19--124. In addition, D.S.A. and Hoeschler alleged that the time necessary to prepare and distribute publicity pamphlets as required by article 4, part 1, § 1(10) of the Arizona Constitution could not be complied with before the 'next regular general election' on November 3, 1970.

The Superior Court heard the matter on September 17, 1970, and granted D.S.A.' § motion to intervene. Hoeschler and D.S.A. moved for a continuance and objected to any testimony's being taken as they had not had an opportunity to prepare. These motions were denied. The only evidence presented was the affidavits of the circulators of the petitions and all parties stipulated that all of the affidavits lacked a certification that the circulator was 'a qualified elector of the State of Arizona' as required by A.R.S. § 19--114. On the grounds that the petitions failed to comply with the statute, the trial court held that the referendum petitions were legally insufficient and enjoined the Secretary of State from putting the measure on the ballot.

The Court of Appeals rejected D.S.A.'s and Hoeschler's argument that since the requirement that a circulator of referendum petitions be 'a qualified elector of the State of Arizona' is not a constitutional provision and since the constitutional referendum provisions are self-executing, the legislature may not add a requirement that is not contained in the constitution itself. The court then found that the failure to include the circulator's affidavit did not make the petitions null and void but merely destroyed the presumption of validity, a presumption which could be reinstated on proof that the circulators were in fact qualified electors. The Court of Appeals held 'that if a referendum measure cannot legally be adopted without compliance with the statutory requirements as to publicity, the 'next general election' referred to in the Constitution means the next general election at which all the statutory requirements for publicity can be complied with.' 16 Ariz.App. at 237, 492 P.2d at 733. In this case, the court found that the next general election meant the November, 1972, election, since Hoeschler and D.S.A. could not possibly have complied with the publication requirements after the September 17, 1970, hearing but before the November 3, 1970, general election. The court found that since the next general election was November, 1972, the trial court's failure to grant D.S.A.'s continuance in order to attempt to supply proof that the circulators were qualified electors was an abuse of discretion. In accordance with these holdings, it reversed and remanded the matter to the trial court.

In reviewing the decision of the Court of Appeals, we are, in essence, asked two questions: (1) Is the requirement of A.R.S. § 19--112 that a circulator of a referendum petition be a qualified elector invalid in that it adds a qualification to a self-executing constitutional provision? (2) Did the omission in the affidavit of verification that the circulator was a qualified elector of the State of Arizona make the petitions void...