Time v. Brewer

• Decision Date: 18 November 2008
• Docket Number: No. CV-08-0275-AP/EL.,CV-08-0275-AP/EL.
• Citation: 196 P.3d 229,219 Ariz. 207
• Parties: TRANSPORTATION INFRASTRUCTURE MOVING ARIZONA'S ECONOMY, a political committee registered with the Arizona Secretary of State; Thomas Ziemba, an individual, Plaintiffs/Appellants, v. Janice K. BREWER, in her official capacity as Secretary of State; and Helen Purcell, in her official capacity as Maricopa County Recorder, Defendants/Appellees.
• Court: Arizona Supreme Court

196 P.3d 229

219 Ariz. 207

TRANSPORTATION INFRASTRUCTURE MOVING ARIZONA'S ECONOMY, a political committee registered with the Arizona Secretary of State; Thomas Ziemba, an individual, Plaintiffs/Appellants, v. Janice K. BREWER, in her official capacity as Secretary of State; and Helen Purcell, in her official capacity as Maricopa County Recorder, Defendants/Appellees.

No. CV-08-0275-AP/EL.

Supreme Court of Arizona, En Banc.

November 18, 2008.

Perkins Coie Brown & Bain P.A. By Paul F. Eckstein, Charles A. Blanchard, Rhonda L. Barnes, M. Bridget Minder, Craig A. Morgan, James E. Barton, II, Phoenix, Attorneys for Transportation Infrastructure Moving Arizona's Economy and Thomas Ziemba.

Terry Goddard, Arizona Attorney General By Mary R. O'Grady, Solicitor General, Barbara A. Bailey, Assistant Attorney General, Tanja K. Shipman, Assistant Attorney General, Phoenix, Attorneys for Janice K. Brewer, Arizona Secretary of State.

Coppersmith Gordon Schermer & Brockelman PLC By Andrew S. Gordon, Phoenix, Attorneys for Amici Curiae Professional Firefighters of Arizona, Kimberly A. Demarchi, Andrew S. Gordon, Thomas K. Irvine, and J. Grant Woods.

OPINION

HURWITZ, Justice.

¶ 1 The issue before us is whether the superior court erred in dismissing claims by appellants Transportation Infrastructure Moving Arizona's Economy and Thomas Ziemba (hereafter collectively referred to as "TIME") that the Secretary of State violated A.R.S. § 19-121.01 (2002) in her review of an initiative petition concerning the Arizona transportation system.

I.

A.

¶ 2 Our constitution reserves to the people the legislative power of initiative. Ariz. Const. art. 4, pt. 1, § 1(2). That right is exercised by filing an initiative petition with the Secretary of State not less than four months before the date of a general election. Id. § 1(4). A legislative measure properly proposed by initiative is referred to the people at the next general election. Id. § 1(5).

¶ 3 To qualify for the ballot, an initiative petition proposing legislation must be signed by ten percent of all qualified electors. Id. § 1(2). The number of qualified electors is "[t]he whole number of votes cast for all candidates for Governor at the general election last preceding the filing of" the initiative petition. Id. § 1(7).

¶ 4 The legislature has enacted a detailed scheme for determining whether the sponsors of an initiative have submitted sufficient signatures. See A.R.S. §§ 19-121 to -122 (2002 & Supp.2007). That process begins when "petition sheets" containing signatures are submitted to the Secretary of State. The initiative petition is then deemed filed and the Secretary issues a receipt "based on an estimate . . . of the purported number of sheets and signatures filed." A.R.S. § 19-121(B).

¶ 5 The Secretary has twenty days from the date of filing, excluding weekends and holidays, to "remove" certain signature sheets and individual signatures under A.R.S. § 19-121.01(A).¹ The Secretary is required to disqualify entire signature sheets for specified reasons. A.R.S. § 19-121.01(A)(1). The Secretary next reviews the remaining sheets and removes signatures by electors not from the county with the most signers on a sheet. A.R.S. § 19-121.01(A)(2). The Secretary also must remove individual signatures that are missing required information, exceed the permitted number of fifteen signatures per sheet, or have been withdrawn. A.R.S. § 19-121.01(A)(3). The Secretary then counts the total sheets and signatures that have not been removed and issues a receipt to the initiative sponsor specifying the total number of sheets and signatures "eligible for verification." A.R.S. § 19-121.01(A)(4)-(6).

¶ 6 If the number of signatures eligible for verification "equals or exceeds the constitutional minimum," the Secretary then selects at random five percent of the remaining signatures. A.R.S. § 19-121.01(B). The sample must "be drawn in such a manner that every signature eligible for verification has an equal chance of being included." Id. The Secretary must "reproduce a facsimile of the front of each signature sheet" containing a signature selected for the sample and transmit these facsimiles to the county recorders. A.R.S. § 19-121.01(C).

¶ 7 A second phase of the verification process then begins. The county recorders have fifteen days to determine whether signatures in the random sample should be disqualified for various reasons. A.R.S. § 19-121.02(A) (Supp.2007).² The recorders must then certify their determinations to the Secretary. A.R.S. § 19-121.02(B). The recorders also "[s]end notice of the results" to the initiative sponsor. A.R.S. § 19-121.02(D)(2).

¶ 8 After receiving the certifications from the county recorders, the Secretary has seventy-two hours, excluding weekends and holidays, to certify the total number of valid signatures. A.R.S. § 19-121.04(A).³ The starting point is the number of eligible signatures determined under § 19-121.01(A)(6)— the number from which the Secretary selected the five-percent random sample. A.R.S. § 19-121.04(A). The Secretary then subtracts signatures disqualified by the county recorders. A.R.S. § 12-121.04(A)(2).⁴ From the remaining eligible signatures, the Secretary subtracts a "like percentage" of the signatures disqualified in the random sample. A.R.S. § 19-121.04(A)(3).

¶ 9 If the remaining number of signatures is greater than one hundred five percent of the constitutional minimum, the Secretary notifies the applicant and Governor that the initiative should be placed on the ballot. A.R.S. § 19-121.04(B). If the remaining number is less than ninety-five percent of the minimum, the Secretary returns the original signature sheets and notifies the applicant that there are insufficient signatures. A.R.S. § 19-121.04(D). If the number falls between ninety-five and one hundred five percent, the Secretary orders the county recorders to examine and verify each signature filed to determine whether the number required by the constitution has been submitted. A.R.S. § 19-121.04(C).

B.

¶ 10 On July 2, 2008, TIME filed signature sheets with the Secretary of State, who issued an "Initial Receipt" reflecting TIME's estimate of the number of sheets and signatures submitted. On July 24, 2008, the Secretary issued a second receipt stating that she had "completed her duties" under § 19-121.01(A) and accordingly had "filed a total of 19,945 petition signature sheets containing 238,874 signatures." The Secretary listed the reasons for the removal of various sheets and signatures submitted by TIME. See A.R.S. § 19-122(A) (requiring the Secretary to provide the initiative sponsor "with a written statement" for actions undertaken in the § 19-121.01 review process). The Secretary then created a five-percent sample of the remaining 238,874 signatures—11,944 signatures—and sent facsimiles of the sheets containing these signatures to the county recorders for verification. The county recorders then disqualified 5,021 signatures, or 42.04 percent of the sample. The bulk of the disqualifications came from Maricopa County; that county's recorder received 10,445 of the signatures in the sample and disqualified 4,712.

¶ 11 On August 11, 2008, the Secretary notified TIME that after applying the recorders' error rate to the 238,874 signatures that she had previously determined were eligible for verification, the number of valid signatures projected from the random sample was 138,451. The constitutional minimum for an initiative proposing legislation was 153,365 signatures. Ninety-five percent of this number is 145,697. Because TIME had submitted only 90.28 percent of the constitutional minimum, the Secretary concluded that the petition should not be placed on the ballot. See A.R.S. § 19-121.04(D).

C.

¶ 12 On August 13, 2008, TIME filed a complaint in Maricopa County Superior Court against the Secretary of State and the Maricopa County Recorder. The complaint alleged that (1) the Secretary had improperly removed 9,168 signatures before creating the sample and (2) the Maricopa County Recorder had improperly disqualified 429 signatures in the random sample. TIME asked that these signatures be added to the base number of qualified signatures. TIME also requested that the overall error rate be adjusted in light of the signatures allegedly improperly disqualified by the Maricopa County Recorder.

¶ 13 TIME contended that if its requested adjustments were made, the valid number of signatures submitted would be at least ninety-five percent of the constitutional minimum. Because the Maricopa County Recorder had previously indicated that she could not verify all the signatures submitted for another initiative before early voting began,⁵ TIME asked that its initiative be placed on the ballot without a verification of each signature filed. See Save Our Pub. Lands Coalition v. Stover, 135 Ariz. 461, 464, 662 P.2d 136, 139 (1983) (holding that if county recorders are unable to verify before the ballot printing deadline each signature of a petition for which the random sample produces a certification rate between ninety-five and one hundred five percent, the initiative should be placed on the ballot).

D.

¶ 14 On August 19, 2008, the Secretary of State moved to dismiss the claims against her. She argued that under A.R.S. § 19-122(A), TIME was required to challenge her removal of petition sheets and signatures within ten days of her July 24, 2008 letter. The superior court granted the motion to dismiss and on August 21, 2008, entered a judgment pursuant to Arizona Rule of Civil Procedure 54(b) in favor of the Secretary; the claims against the Maricopa County Recorder remained.

¶ 15 On the following day, August 22, TIME filed a notice of appeal pursuant to ARCAP 8.1(c). This Court held a scheduling conference on the same day pursuant to ARCAP 8.1(f) and was informed by elections officials that to comply with statutory deadlines governing early balloting, the general election ballot...