Quality Education & Jobs Supporting I-16-2012 v. Bennett

SUPREME COURT OF ARIZONA
QUALITY EDUCATION & JOBS ) Arizona Supreme Court
SUPPORTING I-16-2012, a ) No. CV-12-0286-AP/EL
registered Arizona Political )
Committee, ) Maricopa County
) Superior Court
Plaintiff/Appellant, ) No. CV2012-011232
)
v. )
)
KEN BENNETT, Arizona Secretary ) O P I N I O N
of State and THOMAS HORNE, )
Arizona Attorney General, both )
in their official capacities, )
)
Defendants/Appellees.)
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________
TORRES LAW GROUP Phoenix
By James E. Barton II
Attorney for Quality Education & Jobs Supporting I-16-2012
Committee
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett and Thomas C. Horne
________________________________________________________________
P E L A N D E R, Justice
¶1 Quality Education & Jobs Supporting I-16-2012 (“the
Committee”) challenged the Secretary of State’s descriptive
title and “yes/no” language used for that initiative
(“Proposition 204” or “the Act”) in the Secretary’s voter
information guide and ballot for the November 2012 general
election. The superior court rejected that challenge, finding
the language was “not arbitrary or unquestionably inaccurate”
and therefore substantially complied with A.R.S. § 19-125(D)
(2012). On August 28, 2012, we issued an order treating the
Committee’s appeal from that ruling as an appellate special
action, accepting jurisdiction but denying relief. This opinion
explains our reasoning.1
I.
¶2 The Committee filed this matter as an “expedited
election appeal,” contending that it could be filed directly in
this Court pursuant to Rule 8.1(h) of the Arizona Rules of Civil
Appellate Procedure. That rule, however, “applies only to
election-related cases designated by statute for expedited
consideration on appeal.” ARCAP 8.1 cmt. 1. This case does not
fall within that category. Neither § 19-125(D), on which the
Committee’s challenge was based, nor any other statute
authorizes an expedited appeal to this Court in this context.
Accordingly, we treat the matter as a special action and accept
jurisdiction because the purely legal issue raised is of
statewide importance, and there is no “equally plain, speedy,
1
On November 6, 2012, the voters rejected
Proposition 204. Ariz. Sec’y of State, State of Arizona
Official Canvas 18 (Dec. 3, 2012), available at
www.azsos.gov/election/2012/General/Canvass2012GE.pdf.
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and adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a);
see Ariz. Legislative Council v. Howe, 192 Ariz. 378, 382 ¶ 10,
965 P.2d 770, 774 (1998).
II.
¶3 Proposition 204’s background is set forth in our
opinion in Tobin v. Rea, No. CV-12-0273-SA (Jan. 17, 2013), also
filed today. In short, the Committee and its supporters
collected approximately 290,000 signatures to place the
initiative on the 2012 general election ballot as Proposition
204. The Secretary prepared a descriptive title and summary of
the measure’s principal provisions pursuant to § 19-125(D),
which states, in relevant part:
There shall be printed on the official
ballot immediately below the number of the
measure and the official title of each measure a
descriptive title containing a summary of the
principal provisions of the measure, not to
exceed fifty words, which shall be prepared by
the secretary of state and approved by the
attorney general and that includes the following
or the ballot shall comply with subsection E of
this section:
A “yes” vote shall have the effect of
_________________.
A “no” vote shall have the effect of
__________________.
The blank spaces shall be filled with a
brief phrase, approved by the attorney general,
stating the essential change in the existing law
should the measure receive a majority of votes
cast in that particular manner. In the case of a
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referendum, a “yes” vote shall have the effect of
approving the legislative enactment that is being
referred. The “yes” and “no” language shall be
posted on the secretary of state’s website after
being approved by the attorney general and before
the date on which the official ballots and the
publicity pamphlet are sent to be printed.
A.R.S. § 19-125(D).
¶4 After consulting with the Attorney General and
receiving input from the initiative’s proponents, the Secretary
settled on the following language for the general election guide
(or “publicity pamphlet”) and ballot:
Proposition _______
PROPOSED BY INITIATIVE PETITION RELATING TO TAXATION.
[I-16-2012]
EFFECTIVE JUNE 1, 2013, PERMANENTLY INCREASES THE
STATE SALES TAX BY ONE CENT PER DOLLAR FOR THE
PURPOSE OF FUNDING EDUCATIONAL PROGRAMS, PUBLIC
TRANSPORTATION INFRASTRUCTURE PROJECTS, AND HUMAN
SERVICES; FORBIDS REDUCTIONS TO CURRENT K-12 AND
UNIVERSITY FUNDING LEVELS; AND FORBIDS REDUCTIONS
TO THE CURRENT STATE SALES TAX BASE.
A “yes” vote shall have the effect of permanently
increasing the state sales tax by one cent per
dollar, effective June 1, 2013, for the purpose
of funding educational programs, public
transportation infrastructure projects, and human
services. It forbids reductions to current K-12
and university funding levels and forbids
reductions to the current state sales tax base.
A “no” vote shall have the effect of not
increasing the state sales tax by one cent per
one dollar, beginning June 1, 2013.
¶5 The Committee argues that the Secretary’s description
violates § 19-125(D) by “falsely characterizing the Act as a tax
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increase” and “exaggerating the limitation on the Legislature
contained in the Act.” The Committee’s preferred language would
have stated that the Act “replac[es] the temporary one cent per
dollar sales tax set to expire on June 1, 2013 with a permanent
one-cent sales tax,” and “forbids reductions to the current
sales tax base applicable to the one-cent sales tax.” The
Committee further contends that the superior court erred by
failing to apply “the same substantial compliance review that
Arizona courts apply to the Legislative Council’s analysis”
under A.R.S. § 19-124(B) (2012). We are not persuaded.
¶6 Of the cases the Committee cites, only Howe involved a
challenge to the Secretary of State’s descriptive title and
“yes/no” language used in the publicity pamphlet and ballot
regarding a referendum proposal. There, the superior court
concluded that the Secretary “failed to comply with A.R.S. § 19-
125” in those respects. Howe, 192 Ariz. at 382 ¶ 8, 965 P.2d at
774. In overturning that ruling, this Court found that the
Secretary substantially complied with the statutory requirements
by using language that “can reasonably be regarded as an attempt
to provide necessary and appropriate information to the voting
public.” Id. at 384 ¶ 22, 965 P.2d at 776. “Giving due
deference” to the Secretary, we could not say that the chosen
language was, “as a matter of law, so overemphasized as to be
misleading, inaccurate, lacking in neutrality, or
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argumentative.” Id. ¶ 19.2
¶7 We reach the same conclusions here regarding the
Secretary’s descriptive title and “yes/no” language used for
Proposition 204. We agree with the Committee that the Secretary
may not use language that is false or clearly misleading. But
we disagree with the Committee’s assertion that the Secretary’s
description of the Act “as a tax increase is unquestionably
inaccurate.” As noted in Tobin, “[t]hough ‘fairly debatable,’
. . . the initiative’s proposed tax may fairly be described as a
‘new’ or additional ‘tax increase,’” and such a description “is
neither inaccurate nor partial.” Slip op. at 11 ¶ 17 (“[T]he
initiative proposes statutory changes that would impose a new,
permanent, and legislatively unalterable tax, the revenues of
which would be directed to different and broader uses than those
under the current, constitutionally-imposed temporary tax.”).
¶8 In Tobin, we required modification of the Legislative
Council’s analysis not because it characterized the Act as
imposing a new tax increase, but only because it did not satisfy
§ 19-124(B)’s impartiality requirement, as explicated in this
Court’s case law. Absent any explanatory context, the Council’s
analysis was “not completely ‘free from any misleading
2
For the same reasons, we rejected the challenge under
A.R.S. § 19-124(B) to the Legislative Council’s analysis of the
referendum proposal. Howe, 192 Ariz. at 384 ¶¶ 18-20, 22, 965
P.2d at 776.
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tendency.’” Id. ¶ 18 (quoting Fairness & Accountability in Ins.
Reform v. Greene, 180 Ariz. 582, 590, 886 P.2d 1338, 1346
(1994)). Accordingly, the analysis could not be viewed as “a
completely neutral summary, without advocacy or argument.” Id.
slip op. at 12 ¶ 19 (quoting Citizens for Growth Mgmt. v.
Groscost, 199 Ariz. 71, 73 ¶ 11, 13 P.3d 1188, 1190 (2000)).
Nor did it lack any hint of “partisan coloring.” Id. slip op.
at 9 ¶ 13 (quoting Greene, 180 Ariz. at 590, 886 P.2d at 1346).
¶9 The statute at issue here, § 19-125(D), does not
expressly require an “impartial analysis” of the proposed
measure, as does § 19-124(B). And although the Legislative
Council’s analysis “shall be written in clear and concise
terms,” it is not subject to any word or page limit. A.R.S.
§ 19-124(B). In contrast, the Secretary is obligated to
summarize, in no more than fifty words, “the principal
provisions of the measure,” followed by a “brief phrase . . .
stating the essential change in the existing law” should the
measure be approved. Id. § 19-125(D). The measure here,
Proposition 204, spanned fourteen single-spaced pages and
contained detailed and relatively complicated language regarding
state sales tax and related provisions. The length and
complexity of the initiative, and the constraints prescribed in
§ 19-125(D), are factors in assessing compliance with that
statute.
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¶10 The Committee aptly notes that, compared to the
Council’s analysis, the Secretary’s ballot language arguably is
more important because it might be the last or only description
the electorate sees before voting on the measure. But given the
different requirements and purposes of §§ 19-124 and 19-125, we
are disinclined to equate the statutory standards or import
wholesale our jurisprudence relating to the former statute in
interpreting the latter. Although § 19-125(D) does not permit
the Secretary to use false or clearly misleading language, the
“tax increase” language he used in the publicity pamphlet and
ballot cannot be characterized as such.
¶11 We likewise do not find false or clearly misleading
the Secretary’s statement that the Act “forbids reductions to
the current state sales tax base.”3 The Committee challenges
that language as incorrectly “describ[ing] a measure that
prohibits altering a portion of the tax base as prohibiting
altering the entire tax base.” According to the Committee, the
Secretary’s “yes/no” language suggests that the Act “limits all
alterations to the tax base” and, therefore, violates the
statutory requirement by failing to “stat[e] the essential
change in the existing law should the measure receive a majority
3
The Committee does not challenge as inaccurate or
misleading the Secretary’s statement that the Act “forbids
reductions to current K-12 and university funding levels.”
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of votes cast in that particular manner.” A.R.S. § 19-125(D).
¶12 As with the Secretary’s “tax increase” language to
which the Committee objects, the meaning of his “sales tax base”
language is fairly debatable and potentially subject to
differing interpretations. But that does not mean the language
fails to comply with § 19-125(D). The Secretary’s summary
begins by stating that the Act “permanently increases the state
sales tax by one cent per dollar.” In context, the language
that follows, regarding the “current state sales tax base” to
which the Act forbids reductions, could be read as referring to
the aforementioned “one cent per dollar” portion of the sales
tax base.4 Our task is not to determine whether that is the
only, or even the most reasonable, interpretation of the
language used. Rather, because the Secretary’s language is
neither false nor clearly misleading, and because it “can
reasonably be regarded as an attempt to provide necessary and
appropriate information to the voting public,” we find that it
substantially complies with § 19-125(D). Howe, 192 Ariz. at
4
In Tobin, although we found the issue “close,” the
Legislative Council was required to modify its description of
restrictions on adjusting the sales tax base. Slip op. at 14
¶ 22. But we found “particularly significant” that “the
Council’s analysis refer[red] to ‘sales tax’ as broadly meaning
‘the transaction privilege tax and the use tax,’ without
limiting it to the additional one percent sales tax that the
initiative would impose.” Id. slip op. at 13–14 ¶ 21. No such
misleading and fatal flaw appears in the Secretary’s language at
issue here.
9
384 ¶ 22, 965 P.2d at 776.
III.
¶13 We have no more appetite for enmeshing ourselves in
quarrels regarding the Secretary’s compliance with § 19-125(D)
than in disputes over the Council’s compliance with § 19-124(B).
As the superior court correctly observed regarding the areas of
contention here, however, the parties each raised “legitimate
points,” and neither side’s position “is irrational or
frivolous.” The court did not abuse its discretion or otherwise
err in finding that the Secretary’s language substantially
complies with § 19-125(D). See Ariz. R. P. Spec. Act. 3(c).
Accordingly, we accept special action jurisdiction but deny
relief.
___________________________________
A. John Pelander, Justice
CONCURRING:
___________________________________
Scott Bales, Vice Chief Justice
___________________________________
Robert M. Brutinel, Justice
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