Pedersen v. Bennett

• Decision Date: 05 December 2012
• Docket Number: No. CV–12–0260–AP/EL.,CV–12–0260–AP/EL.
• Parties: Ann–Eve PEDERSEN, individually and as Chair of the Quality Education and Jobs Supporting I–16–2012 Committee; and the Quality Education and Jobs Supporting I–6–2012 Committee, Plaintiffs/Appellees, v. Ken BENNETT, in his official capacity as Secretary of State of the State of Arizona, Defendant/Appellant.
• Court: Arizona Supreme Court

230 Ariz. 556

288 P.3d 760

Ann–Eve PEDERSEN, individually and as Chair of the Quality Education and Jobs Supporting I–16–2012 Committee; and the Quality Education and Jobs Supporting I–6–2012 Committee, Plaintiffs/Appellees,

v.Ken BENNETT, in his official capacity as Secretary of State of the State of Arizona, Defendant/Appellant.

No. CV–12–0260–AP/EL.

Supreme Court of Arizona.

Dec. 5, 2012.

Haralson, Miller, Pitt, Feldman, & McAnally, P.L.C. By Stanley G. Feldman, Tucson And Arizona Center for Law in the Public Interest By Timothy M. Hogan, Joy E. Herr–Cardillo, Phoenix And Lewis and Roca, L.L.P. By Kimberly A. Demarchi, Phoenix And Knapp & Roberts, P.C. By David L. Abney, Scottsdale And Butler, Oden, & Jackson, P.C. By G. Todd Jackson, Tucson, Attorneys for Ann–Eve Pedersen and Quality Education and Jobs Supporting I–16–2012 Committee.

Ballard Spahr, L.L.P. By Joseph A. Kanefield, Craig C. Hoffman, Brunn W. Roysden, III And Thomas C. Horne, Arizona Attorney General By Michele L. Forney, Assistant Attorney General, Thomas M. Collins, Assistant Attorney General, Phoenix, Attorneys for Ken Bennett.

William G. Montgomery, Maricopa County Attorney By M. Colleen Connor, Deputy County Attorney, Bruce P. White, Deputy County Attorney, Phoenix, Attorneys for Amici Curiae Helen Purcell and Karen Osborne.

Lasota & Peters, P.L.C. By Donald M. Peters, Phoenix, Attorneys for Amicus Curiae The Friends of ASBA, Inc.

Snell & Wilmer, L.L.P. By Barbara J. Dawson, Martha E. Gibbs, Michael T. Liburdi, Phoenix, Attorneys for Amici Curiae Arizona Tax Research Association and Arizona Free Enterprise Club.

Arizona Education Association By Samantha E. Blevins, Phoenix, Attorneys for Amici Curiae Jack Sawyer, Wendy Effing, and Linda Somo.

Perkins Coie, L.L.P. By Paul F. Eckstein, D. Andrew Gaona, Phoenix, Attorneys for Amici Curiae We Build Arizona.

Arizona State Senate By Gregrey G. Jernigan And Arizona House of Representatives By Peter A. Gentala, Phoenix, Attorneys for Amici Curiae Steve Pierce and Andrew M. Tobin.

Lewis and Roca, L.L.P. By John C. Hinderaker, Sarah L. Mayhew, Tucson, Attorneys for Amicus Curiae Southern Arizona Leadership Council.

OPINION

BERCH, Chief Justice.

¶ 1 On August 14, 2012, this Court issued an order affirming the superior court's judgment that the submittal of two versions of an initiative, one of which was subsequently circulated for signatures, did not warrant excluding the initiative from the ballot. This opinion explains our order.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 Ann–Eve Pedersen and the Quality Education and Jobs Supporting I–16–2012 Committee (collectively, the “Committee”) support an initiative called the Quality Education and Jobs Act, which would permanently dedicate a one-cent sales tax to fund public education, infrastructure projects, and other public services. In applying for a serial number for the initiative, the Committee inadvertently submitted to Secretary of State Ken Bennett two differing versions of the proposed law: a full version on a compact disc (“CD”) and a paper version that omitted fifteen lines of text on page twelve of fifteen single-spaced pages. The omitted lines transfer, subject to limits, “remaining monies” to entities that receive money under other subsections of the initiative. The full “CD version” was circulated with the petition sheets.

¶ 3 Secretary Bennett's office posted a scanned copy of the paper version of the initiative on its website. Between March 9, 2012, and June 25, 2012, 278 visitors accessed the paper version on the website. During this time, the Committee posted the CD version on its website and attached that version to the petitions circulated for signature. More than 290,000 voters signed petitions to place the initiative on the November 2012 ballot, and the Committee tendered these signatures to the Secretary of State's Office for validation.

¶ 4 The Secretary of State's Office accepted the petitions and issued a receipt, but then notified the Committee that the initiative failed to qualify for the ballot because “the signature pages [were] not attached to a full and correct copy of the initiative measure filed with [the Secretary of State's] office.” Because the Secretary of State's Office deemed the paper copy filed with that office the official version of the initiative, it concluded that the CD version circulated with the signature sheets did not match the officialpaper version, rendering all of the signature sheets invalid.

¶ 5 The Committee immediately applied for a writ of mandamus. SeeA.R.S. § 19–122(A) (Supp.2011). The superior court found that the Secretary of State's Office acted arbitrarily in rejecting the initiative. The Secretary appealed under A.R.S. § 19–122(A) (permitting direct appeal to supreme court).

II. DISCUSSION

¶ 6 We review de novo the questions of statutory and constitutional interpretation raised in this appeal. See, e.g., Ross v. Bennett, 228 Ariz. 174, 176 ¶ 6, 265 P.3d 356, 358 (2011).

A. Compliance with Constitutional and Statutory Requirements

¶ 7 The Arizona Constitution reserves to the people the power to propose laws through the initiative process. Ariz. Const. art. 4, pt. 1, § 1(1), (2). Arizona has a strong policy supporting the people's exercise of this power. See, e.g., Feldmeier v. Watson, 211 Ariz. 444, 447 ¶ 11, 123 P.3d 180, 183 (2005) (citing W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991)). For that reason, courts liberally construe initiative requirements and do not interfere with the people's right to initiate laws “unless the Constitution expressly and explicitly makes any departure [from initiative filing requirements] fatal.” Kromko v. Superior Court, 168 Ariz. 51, 58, 811 P.2d 12, 19 (1991) (internal quotation marks and citations omitted); see also 1989 Ariz. Sess. Laws, ch. 10, § 1 (requiring liberal interpretation of initiatives so as not to “destroy the presumption of validity”).

¶ 8 The Arizona Constitution requires attachment of “a full and correct copy of the title and text” of an initiative to “[e]ach sheet containing petitioners' signatures.” Ariz. Const. art. 4, pt. 1, § 1(9); see alsoA.R.S. § 19–121(A)(3) (Supp.2011) (requiring the same). The parties agree that the Committee attached its intended version, “the full text of the proposed [i]nitiative, exactly as it appeared on the compact disc supplied with the application,” to the petition signature sheets that were circulated to voters. This action satisfies Article 4, Part 1, Section 1(9) of the Arizona Constitution and A.R.S. § 19–121(A)(3).

¶ 9 Arizona Revised Statutes § 19–111(A) (Supp.2011) requires those seeking to initiate a law to file an application “on a form to be provided by the secretary of state” that “set[s] forth ... the text of the proposed law.” The question is whether the Committee satisfied this requirement to file with the secretary of state “the text of the proposed ... measure to be initiated.” A.R.S. § 19–111. Consistent with Arizona's policy favoring initiatives, we review the filing to determine whether it “substantially complies with the applicable constitutional and statutory requirements.” Feldmeier, 211 Ariz. at 447 ¶ 14, 123 P.3d at 183 (citing Kromko, 168 Ariz. at 58, 811 P.2d at 19).

¶ 10 Secretary Bennett argues that the longstanding policy of his office is to file only paper copies and consider only the stamped paper version the “official” text of the initiated act. The CD version, he maintains, was merely accepted as a courtesy. But this “official paper” policy is not embodied in a rule or other written policy statement, nor is it set forth in the Secretary of State's Handbook that explains initiative procedures. See Office of Sec'y of State, Initiative, Referendum, & Recall Handbook 3–19 (2011), available at http:// www. azsos. gov/ election/ IRR/ Initiative_ Referendum_ and_ Recall. pdf. The Arizona Constitution and statutes are also silent on this issue. Indeed, Secretary Bennett's counsel conceded in the trial court that the law does not define the term “official” copy.

¶ 11 Secretary Bennett also contends that a proponent of an initiative cannot comply with the law by filing one version of an initiative and circulating another. He urges us to review this issue not under the usual substantial compliance test, but under a new test that would make any substantive difference between the filed version and the circulated version fatal to an initiative. For this proposition, he cites Nevadans for Nevada v. Beers, 122 Nev. 930, 142 P.3d 339 (2006), and the dissent in Costa v. Superior Court, 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675 (2006).

¶ 12 We decline to change our longstanding test based on these cases. Cf. Ross, 228 Ariz. at 176–78 ¶¶ 10, 16, 19–21, 265 P.3d at 358–60 (declining to alter the substantial compliance standard in the recall context). First, the majority in Costa applied the substantial compliance test, not the test the Secretary espouses. Moreover, both cases are readily distinguishable. In each, the parties filed more than one form of initiative in the appropriate government office, but attached the unintended version to the petitions circulated for signature. Nevadans, 142 P.3d at 346;Costa, 39 Cal.Rptr.3d 470, 128 P.3d at 678–79. Here, by contrast, the parties circulated the intended version so that all signers had the opportunity to review it before signing a petition.

¶ 13 Most importantly, we conclude that our current test strikes the appropriate balance between protecting our citizens' right to initiate laws and the integrity of the election process. See Kromko, 168 Ariz. at 57–58, 811 P.2d at 18–19 (“requirements as to the form and manner in which citizens exercise their power of initiative should be liberally construed”); H.B. 167, 21st Leg., 1st Reg. Sess. (Ariz. 1953) (explaining the twin aims of what is now A.R.S. § 19–111(A)); see also Costa, 39 Cal.Rptr.3d 470, 128 P.3d at 689 (balancing the same competing...