Kromko v. Superior Court In and For County of Maricopa

• Court: Arizona Supreme Court
• Writing for the Court: CORCORAN; GORDON
• Citation: Kromko v. Superior Court In and For County of Maricopa, 811 P.2d 12, 168 Ariz. 51 (Ariz. 1991)
• Decision Date: 09 May 1991
• Docket Number: No. CV-90-0349-SA,CV-90-0349-SA
• Parties: John KROMKO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Alan S. Kamin, a Judge thereof, Respondents, Glenn E. MILLER, Real Party in Interest. Glenn E. MILLER, Plaintiff/Appellant, v. Jim SHUMWAY, Secretary of State of Arizona, and the Board of Supervisors of Maricopa County, Pima County, Pinal County, Apache County, Cochise County, La Paz County, Navajo County, Coconino County, Gila County, Yavapai County, Yuma County, Santa Cruz County, Graham County, Greenlee County, Mohave County, Arizona, Bodies Politic, Defendants/Appellees, John KROMKO, Real Party in Interest. /AP.

Page 12

811 P.2d 12

168 Ariz. 51

John KROMKO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Alan S. Kamin, a Judge thereof, Respondents, Glenn E. MILLER, Real Party in Interest.

Glenn E. MILLER, Plaintiff/Appellant, v. Jim SHUMWAY, Secretary of State of Arizona, and the Board of Supervisors of Maricopa County, Pima County, Pinal County, Apache County, Cochise County, La Paz County, Navajo County, Coconino County, Gila County, Yavapai County, Yuma County, Santa Cruz County, Graham County, Greenlee County, Mohave County, Arizona, Bodies Politic, Defendants/Appellees, John KROMKO, Real Party in Interest.

No. CV-90-0349-SA/AP.

Supreme Court of Arizona, In Banc.

May 9, 1991.

Yen Hobson Pilch & Ringler by Robert E. Yen, William R. Hobson, Adam P. Palmer, Phoenix, for petitioner John Kromko.

Low & Childers, P.C. by J. Michael Low, S. David Childers, Steven R. Henry and Jones, Skelton & Hochuli by William R. Jones, Brian W. LaCorte, Phoenix, for plaintiff/appellant Glenn E. Miller.

Robert K. Corbin, Atty. Gen. by John B. Shadegg, Chief Asst. Atty. Gen., Lisa T. Hauser, Asst. Atty. Gen., Phoenix, for Secretary of State Jim Shumway.

Richard M. Romley, Maricopa County Atty. by Dean M. Wolcott, Deputy County Atty., Phoenix, for Arizona Bodies Politic.

OPINION

CORCORAN, Justice.

This case consolidates a petition for special action by petitioner John Kromko (Kromko) and a direct appeal by plaintiff/appellant Glenn E. Miller (Miller). Both matters result from Miller's suit to enjoin Secretary of State Jim Shumway and the county boards of supervisors from placing an initiative measure on the November 6, 1990, state general election ballot. We have jurisdiction of the special action pursuant to Ariz. Const. art. 6, § 5(4), and rule 1, Arizona Rules of Procedure for Special Actions. We assert jurisdiction of the direct appeal pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 19-122(C).

Factual and Procedural History

On June 29, 1990, Kromko filed an initiative petition and supporting signature sheets with the Secretary of State to place Proposition 201 on the ballot for the state general election to be held on November 6, 1990. ¹ Proposition 201, popularly known as the "Kromko Initiative," sought to authorize numerous purported reforms in the automobile insurance industry, including rate reductions and a governmental office to represent insurance consumers' interests.

Pursuant to A.R.S. § 19-121.02(A), the Secretary of State forwarded each circulator's affidavit and a random sample of 5% of the 179,257 signatures eligible for verification to the county recorders' offices for certification that the signatures were by qualified electors. The county recorders reported that 33.2813% of the random signatures were not from qualified electors and that an additional 4,572 signatures were obtained by unqualified circulators. After inserting these results into the formula specified in § 19-121.04(A), the Secretary of State deducted the required amount of signatures from the total number of signatures obtained by Kromko, leaving 114,557 valid signatures in support of Proposition 201. On August 6, 1990, having already established the minimum number of 86,699 signatures required for the state general election, the Secretary of State certified Proposition 201 for the November 6, 1990 ballot.

On August 28, 1990, Miller filed a complaint in superior court pursuant to § 19-122(C), seeking an injunction ordering the Secretary of State to revoke his certification of Proposition 201 and prohibiting the boards of supervisors of 15 Arizona counties from printing Proposition 201 on the general election ballots. Kromko was named as the real party in interest. Miller's action challenged the sufficiency of elector signatures collected by Kromko, claiming, among other things, that 6,510 petition signature sheets with 87,966 signatures contained extraneous material in the form of "short titles" that were neither authorized by the Secretary of State nor part of the statutory form under § 19-121.

The majority of short titles, in one form or another, described Proposition 201 as a 20% rollback of automobile insurance rates. The titles, however, did not reference other suggested changes to the laws governing insurance rates and procedures, including: (1) the creation of a new state governmental office to monitor consumer insurance interests; (2) a lower burden of proof for punitive damages in tort actions; (3) a private right of action for a single violation of the Unfair Claims Settlement Practices Act; (4) a rate approval process for life, health, and commercial insurance rates; and (5) an insurance consumer protection fund and methods of funding. Miller contended that the extraneous rate reduction titles induced and misled portions of the electorate into providing signatures for Proposition 201. The Secretary of State consequently, should not have considered signature sheets bearing titles exclusively devoted to rollback language in determining the number of valid signatures submitted by Kromko.

On September 7, 1990, Kromko filed a Motion to Dismiss or Alternatively Motion for Summary Judgment. Kromko argued that Miller's complaint was time barred under § 19-121.03(B), which requires any challenge to "the certification made by a county recorder pursuant to § 19-121.02 [to be filed] within ten days of the receipt thereof by the secretary of state." Miller initiated his suit in superior court 29 days after the Secretary of State received the last of the county recorders' certifications. Kromko also contended that § 19-122(C) must be read in conjunction with § 19-122(A), which contains a 10-day limitations period for all actions by citizens seeking to compel the Secretary of State to file a petition or proposal.

The trial judge commenced a show cause hearing on September 10, 1990, at which time he denied Kromko's motion. The trial judge set forth numerous reasons for viewing Miller's action as timely, including the plain language of § 19-122(C), which makes no mention of a 10-day limitations period for challenges to the legal sufficiency of petitions filed with the Secretary of State. He also noted that cases interpreting Title 19 are similarly silent as to a 10-day limitations period for petition challenges under § 19-122(C).

On September 11, 1990, Kromko filed in this court a Petition for Special Action and Application for Interlocutory Stay of Proceedings challenging the trial court's timeliness ruling. At a stay hearing the same day, the Vice Chief Justice denied Kromko's application for stay and scheduled oral argument on September 19, 1990. The order also indicated that any appeals from the trial court's ultimate decision would be heard during the September 19 special action hearing.

Proceedings in the trial court resumed on September 12, 1990, and continued the next day to consider a Verified First Amended Complaint filed by Miller. On September 14, 1990, the parties gave closing arguments, and the trial judge issued his Findings of Fact and Conclusions of Law denying Miller's application for preliminary injunction and dismissing Miller's amended complaint with prejudice. Miller appealed to this court on September 17, 1990, prompting a cross-appeal by Kromko. Kromko's special action and Miller's appeal are joined in the same cause number.

Following oral argument on the special action and both parties' appeals, we entered an order on September 20, 1990, affirming the judgment of the trial court and, in effect, denying the relief requested in Kromko's Petition for Special Action. Although Proposition 201 appeared on the state general election ballot, it was rejected by the voters on November 6, 1990. We indicated in our September 20 order that a formal, written opinion would follow. This is that opinion.

Issues

Two issues are presented for our review:

1. Was Miller required to challenge the legal sufficiency of Proposition 201, pursuant to A.R.S. § 19-122(C), within the 10-day periods specified in § 19-121.03(B) and § 19-122(A)?

2. If not, did the signature sheets bearing extraneous insurance rollback titles render Kromko's petition in support of Proposition 201 legally insufficient, as contemplated by A.R.S. § 19-122(C)?

Based upon our review of the applicable statutes and cases, we do not believe that § 19-122(C) challenges are controlled by the 10-day filing periods governing other Title 19 actions. Because we also refuse to impose a similar limitations period by construction, we view Miller's action as timely. Further, absent legislative guidelines regarding the placement of extraneous material on a petition circulated for signatures, we cannot find fault with Kromko's signature sheets bearing short titles. Nor can we criticize, at least in this case, the practice of singling out insurance rollback language at the expense of other important aspects of Proposition 201. For these reasons, we find Kromko's petition to be legally sufficient for the purposes of certifying and printing Proposition 201 on the official ballot for the November 1990 general election.

Discussion

1. Timeliness

Title 19 of the Arizona Revised Statutes authorizes citizen suits to challenge the legal sufficiency of proposed initiative measures. Section 19-122(C) states:

Notwithstanding § 19-121.04, if any petition filed is not legally sufficient, the court may, in an action brought by any citizen, enjoin the secretary or other officers from certifying or printing on the official ballot for the ensuing election the amendment or measure proposed or referred. The actions shall be advanced on the calendar and heard and decided by the court as soon as possible. Either party may appeal to the supreme court within ten days after judgment.

In Renck v. Superior Court, this court recognized that no time limit is designated in what is now § 19-122(C) or anywhere else for applying to the superior...