WILHELM et al v BREWER et al/HOMEOWNERS BILL

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SUPREME COURT OF ARIZONA En Banc CONNIE WILHELM, a citizen and qualified elector of Maricopa County, ROBERT A. SHANK, a citizen and qualified elector of Maricopa County, and EDWARD P. TACZANOWSKY, a citizen and qualified elector of Pima County, Plaintiffs/Appellants, v. JANICE K. BREWER, in her official capacity as Secretary of State for the State of Arizona; and THE BOARDS OF SUPERVISORS OF APACHE, COCHISE, COCONINO, GILA, GRAHAM, GREENLEE, LA PAZ, MARICOPA, MOHAVE, NAVAJO, PIMA, PINAL, SANTA CRUZ, YAVAPAI, and YUMA COUNTIES, in their official capacities, Defendants/Appellees, and HOMEOWNERS' BILL OF RIGHTS COMMITTEE, an unincorporated association, Real Party in Interest. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Arizona Supreme Court No. CV-08-0269-AP/EL Maricopa County Superior Court No. CV2008-017368 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Sam J. Myers, Judge Affirmed ________________________________________________________________ GAMMAGE & BURNHAM, PLC By Lisa T. Hauser Gregory J. Gnepper Heather J. Boysel Attorneys for Connie Wilhelm, Robert A. Shank, and Edward P. Taczanowsky Phoenix TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Tanja K. Shipman, Assistant Attorney General Barbara A. Bailey, Assistant Attorney General Attorneys for Janice K. Brewer Phoenix TERENCE C. HANCE, COCONINO COUNTY ATTORNEY By Jean E. Wilcox, Deputy County Attorney Attorneys for Coconino County Board of Supervisors Flagstaff BARBARA LAWALL, PIMA COUNTY ATTORNEY By Daniel S. Jurkowitz, Deputy County Attorney Attorneys for Pima County Board of Supervisors Tucson DAVIS, COWELL & BOWE, LLP San Francisco, CA By Andrew J. Kahn Elizabeth A. Lawrence Attorneys for Homeowners Bill of Rights Committee ________________________________________________________________ R Y A N, Justice ¶1 Connie Wilhelm and others ( Wilhelm ) challenged the petition form Committee Statute circulated ( proponents ) ( A.R.S. ) by the in section an Homeowners action 19-122(C) under (2002). Bill of Arizona The Rights Revised petition proposed an initiative measure called the Homeowners Bill of Rights. Wilhelm sought an order barring the Secretary of State from placing the measure on the 2008 general election ballot. After a claims. hearing, a superior court judge rejected Wilhelm s Wilhelm timely appealed, and we affirmed the superior court s judgment by order. This opinion explains our order. 2  We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 19-122(C). I A ¶2 When considering challenges to the form of initiative petitions, Arizona compliance. courts Feldmeier follow Watson v. a rule of (Citizens substantial for Responsible Growth), 211 Ariz. 444, 447-48, ¶¶ 14-15, 123 P.3d 180, 183-84 (2005). The rule recognizes that before errors in petition formalities will be found to bar a measure from the ballot, a court must whole, determine fulfills constitutional whether the the purpose requirements, technical compliance. Id. of petition, the despite considered relevant a lack as statutory of strict a or or Our analysis generally considers several factors, including the nature of the constitutional or statutory requirements, the extent to which the petitions differ from the requirements, and the purpose of the requirements. Id. ¶3 Wilhelm contends that this petition is not legally sufficient (1) because it has no title, (2) its text is not full and Wilhelm correct also asks and (3) this compliance standard. its Court petition to summary reconsider the is invalid. substantial We decline to reconsider our standard of review for initiative petitions and conclude that the petition 3  substantially complied with the statutory and constitutional requirements. B ¶4 We begin with the claim that the measure includes no title because the measure s name neither precedes its text, nor is centered to indicate it is, in fact, a title. The superior court concluded that the petition has a title that complies with Arizona law. ¶5 The Arizona Constitution and a statute require that when an initiative petition is circulated for signatures, a copy of the measure including its title and text must be included. Ariz. Const. art. 4, pt. 1, § 1(9) ( Each sheet containing petitioners signatures shall be attached to a full and correct copy of the title and text of the measure so proposed . . . . ); A.R.S. § 19-112(B) ( The signature sheets shall be attached at all times during circulation to a full and correct copy of the title and text of the measure or constitutional amendment proposed or referred by the petition. ). ¶6 We have held that the title and text provision merely requires some title and some text. Meyers v. Bayless, 192 Ariz. 376, 378, ¶ 10, 965 P.2d 768, 770 (1998) (quoting Barth v. White, 40 Ariz. 548, 556, 14 P.2d 743, 746 (1932)). stated that a title should precede the measure. ¶¶ 11-12, 965 P.2d at 770. Although 4  the title We further Id. at 378, in Meyers appeared in the substantive text of the initiative, we nonetheless found substantial compliance with the constitutional requirement. Id. We explained that a provision that identified Article 2 as the CITIZENS CLEAN ELECTIONS ACT qualified as a title because it was offset from the other text and because there was only one article, avoiding any confusion. Id. at ¶ 12. ¶7 Section 1 of the petition here bears the heading of Title and provides, This act may be cited as the Homeowners Bill of Rights. Thus, the title is clearly denominated as such and is contained in its own section. We conclude that the title the in this petition complies with requirements of Article 4, Part 1, Section 1(9) and A.R.S. § 19-112(B). ¶8 Wilhelm, however, suggests that the Court s review of the title requirement has eroded since Barth was decided. She contends that our cases interpreting Article 4, Part 2, Section 13, the single-subject rule, should dictate the result in this case. ¶9 In contrast to Article 4, Part 1, Section 1(9), the single-subject rule expressly requires that acts embrace but one subject to be included in a title, encompassed in the title are void. and provisions not Art. 4, pt. 2, § 13. Article 4, Part 1, Section 1(9), on the other hand, has no equivalent provisions. Cf. Feldmeier,  211 Ariz. at 447, ¶ 13, 5  123 P.3d at 183 ( [I]f the Constitution expressly and explicitly makes any departure fatal, the initiative cannot be placed on the ballot. ) (internal quotation marks, ellipsis, and citation omitted). Further, even in applying the explicit charge of the single-subject rule, our interpretation is not narrowly technical, and thus we construe legislation liberally in favor of its Brewer, constitutionality. 209 Ariz. 241, Clean 243, ¶ Elections 4, 99 P.3d Inst., 570, (internal quotation marks and citations omitted). Inc. 572 v. (2004) Consequently, we are not persuaded by Wilhelm s argument. C ¶10 In 1991, the Legislature amended the initiative statutes to require that the petition form include text of no more than one hundred words describing provisions of the proposed measure . . . . the principal 1991 Ariz. Sess. Laws, ch. 1, § 6 (3d Spec. Sess.) (codified and amended at A.R.S. § 19-102(A)). The statute also requires that the petition contain the following notice:  [T]his is only a description of the proposed measure . . . prepared by the sponsor of the measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure are attached. You have the right to read or examine the title and text before signing. A.R.S. § 19-102(A). the required notice. Here the petition included a summary and But Wilhelm claims that the summary in 6  this case is fatally defective because it fails to refer to one provision of the proposed measure. ¶11 The summary stated the following: Ten-year warranty on new homes. Right to demand correction of construction defects or compensation. Homeowners participate in selecting contractors to do repair work. They can sue if no agreement with the builder. No liability for builders attorney and expert fees but homeowner can recover these costs. Homeowners can sometimes recover compensatory and consequential damages. Disclosure of builders relationships with financial institutions. Model homes must reflect what is actually for sale. Right to cancel within 100 days and get back most of the deposit. Prohibiting sellers agents from participating in false mortgage applications. The summary did not refer to a proposed amendment to A.R.S. § 12-552, which proposes extending the statute of repose for certain actions concerning real property from eight to ten years. ¶12 Wilhelm concedes that the legislature did not intend that every feature of a measure be included in the 100-word description. Nevertheless, Wilhelm maintains that without the repose term the summary here is misleading both on its face and in the context of the measure s broader presentation. The summary plainly omits any reference to the extension of the statute of repose, which Wilhelm contends may affect not only 7  home construction, but also other property litigation.1 Further, petition signers who read the summary would have to read the entire measure to find the statute of repose provision in the very last section. This is particularly important, Wilhelm argues, because although traditionally statutory sections are presented in numerical order, the framers of this measure placed the proposed amendment to A.R.S. § 12-552 at the back, not the front, of the initiative text. Wilhelm argues that by omitting the section from the summary and placing it in the back of the text, the proponents sought to mislead voters. ¶13 In rejecting Wilhelm s arguments, the superior court relied on our decision in Kromko v. Superior Court (Miller), 168 Ariz. 51, 811 P.2d 12 (1991). measure under review In that case, the text of the included short specifically called for by statute. 18-20. titles that were not Id. at 57-59, 811 P.2d at We concluded that the short titles were accurate, if incomplete, and noted that [w]e cannot say that a title s failure to describe every aspect of a proposed measure always creates the sufficient to degree of invalidate fraud, the confusion, petition upon and which unfairness the title                                                              1 We do not address what A.R.S § 12-552 would mean if the measure is approved by the voters and becomes law. Cf. Winkle v. City of Tucson, 190 Ariz. 413, 415, 949 P.2d 502, 504 (1997) ( Voter initiatives, part and parcel of the legislative process, receive the same judicial deference as proposals before the state legislature   courts are powerless to determine their substantive validity unless and until they are adopted. ). 8  rests. Id. at 60, 811 P.2d at 21. Further, any fear of fraud was mitigated by the fact that the measure itself was available to voters for inspection and the omitted information was not contrary to the thrust of the measure. ¶14 Id. We agree with the superior court. The omission of the proposed extension of the statute of repose in the proponents description of the measure was not fraudulent and did not create confusion required or by mislead. the The proponents legislature and included informed the signers warning that the summary had been prepared by initiative supporters and advised them to review the entire measure. warned that the summary Thus, potential signers were description may not be complete or unbiased. ¶15 Substantively, the proposed amendment regarding the statute of repose is consistent with the ten-year warranty that both the summary and the text highlight. In this context, the order of the statutory provisions does not create fatal falsity under the standard declared in Kromko. Id. at 59, 811 P.2d at 20 short titles designed to (agreeing either untrue signatories, with criticism representations of or highly incite partisan rage ). inflammatory that defraud language contain[] potential calculated to Neither the initiative measure nor the summary improperly obscures the proposed two-year extension to 9  the statute of repose.2 D ¶16 Wilhelm also claims that the petition is defective because part of the initiative text was not properly capitalized to indicate newly proposed language. that the text of an initiative Section 19-112(B) requires provision indicate material added or new material by printing the letters of the material in capital letters. In this case, some limited material was not capitalized, including a caption and an incomplete sentence. ¶17 The language in question was presented in the following way: 12-1365.02. Applicability; claims and actions A purchaser may bring an action against a seller for violation of section 12-1365.01 and shall be entitled to recover in such action ANY OR ALL OF THE FOLLOWING RELIEF. (a) (b) (c) (d) (e) INJUNCTIVE OR OTHER EQUITABLE RELIEF TO RESTRAIN ANY VIOLATION OF SECTION 121365.01; RESCISSION OF ANY CONTRACT TO PURCHASE A DWELLING MADE IN VIOLATION OF SECTION 121365.01; ANY ACTUAL DAMAGES CAUSED BY ANY VIOLATION OF SECTION 12-1365.01; COMPENSATORY DAMAGES FOR WILLFUL VIOLATION OF SECTION 12-1365.01; AND REASONABLE ATTORNEY FEES, REASONABLE EXPERT WITNESS FEES AND TAXABLE COSTS.                                                              2   In Kromko, the plaintiff submitted evidence that signers were misled. Id. at 59, 811 P.2d at 20. In contrast, the superior court here stated that [p]laintiffs submitted no evidence that any voter was misled or confused by any of the issues raised. 10  Wilhelm contends that because the title and the first portion of the provision are not capitalized, § 19-112(B) was violated and therefore the petition was fatally defective. The superior court concluded that the error was not fatal because the context of the provisions made clear that the language not capitalized is new. ¶18 to The purpose of A.R.S. § 19-112(B) is to call attention amended and added language. Any failure of the petition not to comply is not fatal for two reasons. present First, the provision with regard to capitalization is less critical to the statute s purpose when entirely new provisions, rather than the amendment of existing provisions, are proposed. Second, the context confirms that [v]iewed as a whole these provisions envision new laws, regardless of the typography. 211 Ariz. at 449, ¶ 25, 123 P.3d at 185. language derives preceding it. its meaning Consequently, from the the See Feldmeier, The non-capitalized capitalized failure to sections capitalize the language did not cause the measure to fail to substantially comply with the statutory requirements. E ¶19 our Finally, we decline Wilhelm s invitation to revisit standard of substantial petitions. Wilhelm evaluating initiative argues compliance review that Court s petitions 11  this has eroded for initiative standard such that for the requirements to extinction. As a result, she claims, voters have become too empowered, the place process a measure has been before voters abused, and are some near support restricting the process. We do not believe, however, that the possibility people that constitutional sufficient and reason some statutory for us may laws to favor for abandon modifying initiatives our the is a long-established standard of substantial compliance under the laws as they now exist. II ¶20 Based on the forgoing, we affirm the superior court s judgment. _______________________________________ Michael D. Ryan, Justice CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ Andrew D. Hurwitz, Justice _______________________________________ W. Scott Bales, Justice 12 

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