Ann-Eve Pedersen v. Ken Bennett ( 2012 )

SUPREME COURT OF ARIZONA
In Division
ANN-EVE PEDERSEN, individually ) Arizona Supreme Court
and as Chair of the Quality ) No. CV-12-0260-AP/EL
Education and Jobs Supporting )
I-16-2012 Committee; and the ) Maricopa County
Quality Education and Jobs ) Superior Court
Supporting I-6-2012 Committee, ) No. CV2012-009618
)
Plaintiffs/Appellees, )
)
v. ) O P I N I O N
)
KEN BENNETT, in his official )
capacity as Secretary of State )
of the State of Arizona, )
)
Defendant/Appellant. )
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge
AFFIRMED
________________________________________________________________
HARALSON, MILLER, PITT, FELDMAN, & MCANALLY, P.L.C. Tucson
By Stanley G. Feldman
And
ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
By Timothy M. Hogan
Joy E. Herr-Cardillo
And
LEWIS AND ROCA, L.L.P. Phoenix
By Kimberly A. Demarchi
And
KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
And
BUTLER, ODEN, & JACKSON, P.C. Tucson
By G. Todd Jackson
Attorneys for Ann-Eve Pedersen and
Quality Education and Jobs Supporting
I-16-2012 Committee
BALLARD SPAHR, L.L.P. Phoenix
By Joseph A. Kanefield
Craig C. Hoffman
Brunn W. Roysden, III
And
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Thomas M. Collins, Assistant Attorney General
Attorneys for Ken Bennett
WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor, Deputy County Attorney
Bruce P. White, Deputy County Attorney
Attorneys for Amici Curiae
Helen Purcell and Karen Osborne
LASOTA & PETERS, P.L.C. Phoenix
By Donald M. Peters
Attorneys for Amicus Curiae
The Friends of ASBA, Inc.
SNELL & WILMER, L.L.P. Phoenix
By Barbara J. Dawson
Martha E. Gibbs
Michael T. Liburdi
Attorneys for Amici Curiae
Arizona Tax Research Association and
Arizona Free Enterprise Club
ARIZONA EDUCATION ASSOCIATION Phoenix
By Samantha E. Blevins
Attorneys for Amici Curiae
Jack Sawyer, Wendy Effing, and Linda Somo
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PERKINS COIE, L.L.P. Phoenix
By Paul F. Eckstein
D. Andrew Gaona
Attorneys for Amici Curiae
We Build Arizona
ARIZONA STATE SENATE Phoenix
By Gregrey G. Jernigan
And
ARIZONA HOUSE OF REPRESENTATIVES Phoenix
By Peter A. Gentala
Attorneys for Amici Curiae
Steve Pierce and Andrew M. Tobin
LEWIS AND ROCA, L.L.P. Tucson
By John C. Hinderaker
Sarah L. Mayhew
Attorneys for Amicus Curiae
Southern Arizona Leadership Council
________________________________________________________________
B E R C H, 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
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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
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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 official paper version,
rendering all of the signature sheets invalid.
¶5 The Committee immediately applied for a writ of
mandamus. See A.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
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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 also A.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
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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_Re
call.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
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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, 142 P.3d 339 (Nev. 2006), and the dissent in Costa v.
Superior Court, 128 P.3d 675 (Cal. 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, 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
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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, 128 P.3d at 689 (balancing the same competing
goals). For these reasons, we are not persuaded that we should
change our standard for reviewing initiatives.
¶14 Under the substantial compliance standard, we conclude
(and the parties agree) that the Committee’s filing of differing
versions of the initiative was a clerical error, done without
any intent to defraud or deceive. And in the circumstances of
this case, there was no significant danger that voters would be
confused or deceived by the discrepancy between the paper and CD
versions; the voters who signed the petitions had the
opportunity, if they wished to take it, to study the correct
provision.1 Moreover, the Secretary of State’s Office received
and had on file the complete copy of the initiative circulated.
¶15 Nonetheless, the Committee created potential confusion
and precipitated this lawsuit by submitting two differing
versions of its proposed law. Secretary Bennett’s Office posted
the paper version on its website for potential voters to view.
But the likelihood that it misled those who viewed it was
mitigated both by the few visits to the page and by the fact
1
The record before the trial court showed no evidence of
actual confusion.
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that the link to the paper version carried the bold heading:
“Unofficial.” Moreover, the error occurs on page twelve of
fifteen dense, single-spaced pages, making it unlikely that even
the most diligent reader would have found it. Our conclusion is
supported by the fact that the Joint Legislative Budget
Committee’s description in the publicity pamphlet does not
mention the omitted funding allocations, even though the
Secretary of State sent the JLBC the CD version of the measure
after the discrepancy between the two versions was discovered.
See Ariz. Sec’y of State, What’s on my Ballot?: Arizona’s
General Election Guide (2012), available at
http://www.azsos.gov/election/2012/Info/PubPamphlet/english/e-
book.pdf; Joint Legislative Budget Comm., Ariz. Legislature,
Fiscal Impact Estimates for Differing Versions of the Quality
Education and Jobs Act Initiative (I-16-2012) (2012), available
at http://www.azleg.gov/jlbc/QualityEdandJobs-LegCouncil.pdf;
see also Ariz. R. Evid. 201(b), (b)(2) (permitting court to take
judicial notice).
¶16 The timing of the discovery and the opportunity to
remedy the error also weigh heavily in our analysis. See Iman
v. Bolin, 98 Ariz. 358, 366, 404 P.2d 705, 710 (1965). In Iman,
the Secretary of State omitted two words in the publicity
pamphlet describing an initiative and circulated a correction
just one week before the election. Id. Despite the short
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period before the election, we found that the Secretary of State
had substantially complied with the statutory and constitutional
requirements. Id.
¶17 Here, the Secretary of State’s Office discovered the
error around June 18, 2012, more than one month before the
August 26, 2012 deadline to print the ballot measure pamphlet.
The Secretary of State’s Office thus had sufficient advance
notice to correct the error before it completed its statutorily
required duties, including crafting the official ballot language
and producing the publicity pamphlet.
¶18 We therefore concluded that the Committee’s initiative
should go forward. Given the unique circumstances of this case,
in which the full and correct copy of the initiative was
provided to the Secretary of State’s Office, the error was
discovered with ample time to remedy it, the Committee attached
its intended version to the petition signature sheets, and no
fraud was intended or shown, we must respect the wishes of the
more than 290,000 petition signers and protect the people’s
right to propose laws. See, e.g., Kromko, 168 Ariz. at 57-58,
811 P.2d at 18-19. We hold that the initiative substantially
complied with A.R.S. § 19-111(A).
¶19 We conclude with a few final notes. The trial court
believed that Secretary Bennett, after discovering that two
versions of the initiative had been submitted, had the
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discretion simply to treat the correct version as the “official”
version. The Secretary proceeded properly in accepting the
submitted petitions and verifying the signatures while awaiting
guidance from the courts.2
¶20 Finally, we note that the trial transcript reflects
that the trial judge expressed impatience with the Secretary of
State’s counsel, such as suggesting that the defense was
frivolous.3 Although we recognize the pressures to speed
election cases through the courts, we disagree that the defense
interposed was inconsequential or wasted judicial resources.
This case presented an unusual circumstance not of the
Secretary’s making. He was placed in a difficult position by
the Committee’s filing of conflicting versions of its
initiative. The Secretary proceeded properly in bringing this
issue to the court.
B. Attorneys’ Fees
¶21 The Committee seeks attorneys’ fees pursuant to A.R.S.
§ 12-2030(A) (2003), which requires an award of attorneys’ fees
to a party that “prevails by an adjudication on the merits . . .
2
To prevent future uncertainty, the Secretary may want to
amend the Handbook or adopt rules providing guidance regarding
the “official” version.
3
At the end of the hearing, for example, the judge abruptly
stated, “I don’t see this as a complicated issue. I don’t
honestly see that we needed to be here.” Rep. Tr. July 18, 2012
at 23.
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against the state . . . to compel a state officer . . . to
perform an act imposed by law as a duty on the officer.”
Because the Committee prevailed on the merits, it would be
entitled to recover its attorneys’ fees had Secretary Bennett
been compelled by law to accept the CD version. But the law is
silent on the Secretary’s duty when a party files two different
versions of an initiative. Because the law imposes no duty on
the Secretary in this unusual circumstance caused by the
Committee, we find that an award of fees under A.R.S. § 12-
2030(A) is not mandatory. See TIME v. Brewer, 219 Ariz. 207,
213 ¶ 32, 196 P.3d 229, 235 (2008) (claim that Secretary erred
in performing duties rather than refusing to perform mandatory
duty “do[es] not clearly fall within [mandamus] statute”). We
therefore direct each party to bear its own costs in this Court
and in the trial court.
III. CONCLUSION
¶22 For the foregoing reasons, we affirm the judgment of
the superior court.
__________________________________
Rebecca White Berch, Chief Justice
CONCURRING:
__________________________________
Scott Bales, Vice Chief Justice
__________________________________
Robert M. Brutinel, Justice
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