Feldmeier v. Watson

• Decision Date: 30 November 2005
• Docket Number: No. CV-05-0325-AP/EL.,CV-05-0325-AP/EL.
• Citation: 211 Ariz. 444,123 P.3d 180
• Parties: Bill FELDMEIER, a qualified elector of the City of Prescott, Plaintiff/Appellee, v. Marie L. WATSON, in her official capacity as the Prescott City Clerk; Ana Wayman-Trujillo, in her official capacity as Yavapai County Recorder, Defendants/Appellees, Citizens for Responsible Growth, Defendant/Real Party in Interest/Appellant.
• Court: Arizona Supreme Court

Page 180

123 P.3d 180

211 Ariz. 444

Bill FELDMEIER, a qualified elector of the City of Prescott, Plaintiff/Appellee, v. Marie L. WATSON, in her official capacity as the Prescott City Clerk; Ana Wayman-Trujillo, in her official capacity as Yavapai County Recorder, Defendants/Appellees, Citizens for Responsible Growth, Defendant/Real Party in Interest/Appellant.

No. CV-05-0325-AP/EL.

Supreme Court of Arizona, En Banc.

November 30, 2005.

Law Offices of W. Gil Shaw, by W. Gil Shaw, Prescott, and Law Offices of William R. Hobson, by William R. Hobson, and Counters & Koelbel, P.C., by Lisa J. Counters, Kevin Koelbel, Chandler, Attorneys for Citizens for Responsible Growth.

Gammage & Burnham, P.L.C., by Lisa T. Hauser, Michella Abner, Phoenix, Attorneys for Bill Feldmeier.

OPINION

RYAN, Justice.

¶ 1 The Superior Court of Yavapai County enjoined the placement of an initiative measure on a ballot because the court found that the petition circulators' affidavits did not substantially comply with the verification requirements of Article 4, Part 1, Section 1(9), of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 19-112(C) (2002). Having concluded that the affidavits complied with the legal requirements, we previously ordered that the trial court's ruling enjoining the placement of the initiative measure on the ballot be vacated, with an opinion to follow. This is that opinion.

I

¶ 2 Citizens for Responsible Growth ("CRG"), a political committee, sought to place an initiative on the ballot to amend the Prescott City Charter. The initiative was filed with the Prescott City Clerk with sufficient signatures to qualify the petition for the ballot.

¶ 3 After the City Clerk certified the measure for the ballot, Bill Feldmeier, an elector in the City of Prescott, filed a complaint alleging, among other things, that the circulators' affidavits were defective because they "fail[ed] to satisfy the constitutional and statutory requirement that the circulator swear to his belief that each signer was a qualified elector of the City of Prescott." The affidavit on CRG's petition avowed in relevant part that the circulator had determined that

each individual signed this sheet of the foregoing petition in my presence on the date indicated, and I believe that each signer's name and residence address or post office address are correctly stated and that each signer is a qualified elector of the state of Arizona (or in the case of a city, town or county measure, of the city, town or county affected by the measure proposed to be initiated or referred to the people). . . .

¶ 4 After conducting hearings on Feldmeier's request, the trial court enjoined the Clerk from certifying the proposed initiative for inclusion on the ballot. The court found that the petitions did not substantially comply with the constitution because they failed to include the phrase "City of Prescott" on the circulator's affidavit.

¶ 5 CRG filed a timely notice of appeal. We have jurisdiction over this appeal under Article 6, Section 5(3), of the Arizona Constitution, and A.R.S. §§ 19-122(C), -19-141(A), (D)(2002).

II

A

¶ 6 On the eve of Arizona's statehood, one of the "burning issues" was whether Arizona should adopt the initiative and referendum process. Whitman v. Moore, 59 Ariz. 211 218, 125 P.2d 445, 450 (1942), overruled, in part, on other grounds by Renck v. Superior Court, 66 Ariz. 320, 327, 187 P.2d 656, 660-61 (1947). Delegates to our constitutional convention eventually decided Arizona should join those states that had such procedures. Id. The voters then ratified the constitution "by a very large percentage of the votes cast." Id. Article 4, Part 1, Section 1, of the Arizona Constitution, and A.R.S. §§ 19-101 to -143 (2002 & Supp. 2005) set forth the rules for initiative and referendum petitions.

¶ 7 The initiative process reserves to the people the power to propose to the electorate laws and amendments to the constitution. Ariz. Const. art. 4, pt. 1, § 1(1). The Arizona Constitution expressly reserves the initiative power to qualified electors of political subdivisions of the state when legislative matters are purely of local concern. Id. § 1(8).¹ The referendum process, on the other hand, is the power of the people to accept or reject, at the polls, legislative enactments. Id. § 1(1), (3). The legislature also may refer proposed legislation or constitutional amendments to the electorate. Id. § 1(3).

¶ 8 An initiative petition must include a brief description of the principal provisions of the initiative; a notice that the description may not include every provision and anyone asked to sign has a right to examine the title and full text of the measure, which must be attached to the petition; a statement that the signer demands that this initiative be submitted to the qualified electors and that, as a qualified elector, the signer has personally signed the petition and has not signed any other petitions for the same matter; and a warning that it is a misdemeanor to sign the petition if certain conditions apply. Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. §§ 19-101 to -102. Whether the circulator is paid or is a volunteer must also be indicated on the petition. A.R.S. § 19-102(B), (C).

¶ 9 The petition signer must also declare that he or she is a qualified elector of the proper political subdivision and must provide the "post office address, the street and number, if any, of his residence, and the date on which he signed such petition." Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. § 19-112(A). The circulator must then verify the signatures in a sworn affidavit on the back of the petition. Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. §§ 19-101(A), -102(A), -112(C), (D).

¶ 10 With respect to the verification requirement, the Arizona Constitution states, in pertinent part, the following:

[E]very sheet of every [initiative or referendum] petition containing signatures shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth . . . that in the belief of the affiant each signer was a qualified elector of the State, or in the case of a city, town, or county measure, of the city, town, or county affected by the measure so proposed to be initiated or referred to the people.

Ariz. Const. art. 4, pt. 1, § 1(9) (emphasis added). The language of A.R.S. § 19-112(C) tracks the constitutional verification requirements:

The [circulator] . . . shall, on the affidavit form pursuant to this section, subscribe and swear before a notary public that . . . the circulator . . . [believed] each signer was a qualified elector of a certain county of the state, or, in the case of a city, town or county measure, of the city, town or county affected by the measure on the date indicated. . . .

Section 19-112(D), in turn, sets forth the form for the circulator's affidavit.²

B

¶ 11 We have long "recognized Arizona's strong public policy favoring the initiative and referendum." W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991) (citing Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 66, 811 P.2d 22, 27 (1991)). However, in light of the differences between referendums and initiatives, we apply a different test to each when challenged on constitutional or statutory grounds. Id.

¶ 12 We require referendum proponents to strictly comply with all constitutional and statutory requirements. Id. at 428, 814 P.2d at 769 (citing Cottonwood Dev. v. Foothills Area Coal., 134 Ariz. 46, 48-49, 653 P.2d 694, 696-97 (1982); Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 6, 503 P.2d 951, 954 (1972)). The referendum power is subject to this exacting standard because it "permits a `minority to hold up the effective date of legislation which may well represent the wishes of the majority[.]'" Id. at 429, 814 P.2d at 770 (quoting Cottonwood, 134 Ariz. at 49, 653 P.2d at 697).

¶ 13 In contrast, "requirements as to the form and manner in which citizens exercise their power of initiative should be liberally construed." Kromko v. Superior Court, 168 Ariz. 51, 57-58, 811 P.2d 12, 18-19 (1991). This is because "courts must exercise restraint before imposing unreasonable restrictions on the people's legislative authority, which `is as great as the power of the legislature to legislate.'" Id. at 57, 811 P.2d at 18 (quoting State v. Osborn, 16 Ariz. 247, 250, 143 P. 117, 118 (1914)). But, while "every reasonable intendment is in favor of a liberal construction" of the requirements for an initiative, if "the Constitution expressly and explicitly makes any departure. . . fatal," the initiative cannot be placed on the ballot. Whitman, 59 Ariz. at 220, 125 P.2d at 451.

¶ 14 The test for initiatives, unlike referenda, thus is whether the petition substantially complies with the applicable constitutional and statutory requirements. Kromko, 168 Ariz. at 58, 811 P.2d at 19. In deciding whether an initiative substantially complies with the constitutional and statutory requirements, a court should consider several factors, including the nature of the constitutional or statutory requirements, the extent to which the petitions differ from the requirements, and the purpose of the requirements. See Meyers v. Bayless, 192 Ariz. 376, 378, ¶¶ 10-12, 965 P.2d 768, 770 (1998) (reviewing petition to see how well it complied with the title requirement); Kromko, 168 Ariz. at 58, 811 P.2d at 19 (reviewing the statutory requirements and the extent to which the petition complied with those requirements); Whitman, 59 Ariz. at 220, 223, 229, 125 P.2d at 451-52, 454 (examining statutory and constitutional signature requirements as well as the purpose behind those requirements).³ Accordingly, in the context of the formal requirements for initiatives, substantial compliance means that the petition as circulated fulfills the purpose of the relevant statutory or constitutional requirements, despite a lack of strict or technical...