ANN-EVE PEDERSEN v KEN BENNETT

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SUPREME COURT OF ARIZONA In Division 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. ) _________________________________ ) Arizona Supreme Court No. CV-12-0260-AP/EL Maricopa County Superior Court No. CV2012-009618 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Robert H. Oberbillig, Judge AFFIRMED ________________________________________________________________ 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 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 Tucson Phoenix And THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Michele L. Forney, Assistant Attorney General Thomas M. Collins, Assistant Attorney General Attorneys for Ken Bennett Phoenix WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY By M. Colleen Connor, Deputy County Attorney Bruce P. White, Deputy County Attorney Attorneys for Amici Curiae Helen Purcell and Karen Osborne Phoenix LASOTA & PETERS, P.L.C. By Donald M. Peters Attorneys for Amicus Curiae The Friends of ASBA, Inc. Phoenix SNELL & WILMER, L.L.P. By Barbara J. Dawson Martha E. Gibbs Michael T. Liburdi Attorneys for Amici Curiae Arizona Tax Research Association and Arizona Free Enterprise Club Phoenix ARIZONA EDUCATION ASSOCIATION By Samantha E. Blevins Attorneys for Amici Curiae Jack Sawyer, Wendy Effing, and Linda Somo Phoenix - 2 - PERKINS COIE, L.L.P. By Paul F. Eckstein D. Andrew Gaona Attorneys for Amici Curiae We Build Arizona Phoenix ARIZONA STATE SENATE By Gregrey G. Jernigan Phoenix And ARIZONA HOUSE OF REPRESENTATIVES By Peter A. Gentala Attorneys for Amici Curiae Steve Pierce and Andrew M. Tobin Phoenix 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, initiative from the ballot. I. ¶2 did not warrant excluding the This opinion explains our order. FACTS AND PROCEDURAL HISTORY 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 - 3 - 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: version on a compact disc ( CD ) and a paper a full version that omitted fifteen lines of text on page twelve of fifteen singlespaced 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 - 4 - 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 mandamus. court Committee immediately applied for a See A.R.S. § 19-122(A) (Supp. 2011). found that the Secretary of arbitrarily in rejecting the initiative. State s writ of The superior Office acted The Secretary appealed under A.R.S. § 19-122(A) (permitting direct appeal to supreme court). II. ¶6 We review de novo DISCUSSION the questions of statutory constitutional interpretation raised in this appeal. and See, e.g., Ross v. Bennett, 228 Ariz. 174, 176 ¶ 6, 265 P.3d 356, 358 (2011). A. ¶7 Compliance Requirements with Constitutional and Statutory The Arizona Constitution reserves to the people the power to propose laws through the initiative process. Const. art. 4, pt. 1, § 1(1), (2). supporting the people s exercise Ariz. Arizona has a strong policy 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)). - 5 - 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 Court, filing 168 quotation requirements] Ariz. marks 51, and 58, 811 citations fatal. P.2d 12, omitted); Kromko 19 see v. (1991) also Superior (internal 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 set[s] forth . . . the text of the proposed law. state that The question is whether the Committee satisfied this requirement to file with - 6 - 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 constitutional and complies statutory with the requirements. applicable 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 Secretary of procedures. Referendum, policy State s See & statement, Handbook Office Recall nor of is that Sec y Handbook it 3 19 set forth in the explains of initiative State, Initiative, (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. - 7 - 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, 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. 265 P.3d Cf. Ross, 228 Ariz. at 176-78 ¶¶ 10, 16, 19-21, at 358-60 (declining to alter compliance standard in the recall context). the substantial First, the majority in Costa applied the substantial compliance test, not the test the Secretary espouses. distinguishable. Moreover, both cases are readily 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. by Here, 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 process. initiate laws and the integrity of the election See Kromko, 168 Ariz. at 57-58, 811 P.2d at 18-19 ( requirements as to the form and - 8 - 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, 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 and Nonetheless, the Committee created potential confusion precipitated this lawsuit versions of its proposed law. by submitting two differing 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. - 9 - 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. supported by Committee s mention the fact description the omitted that in the the funding Joint Our conclusion is Legislative publicity pamphlet allocations, even Budget does not 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. General Sec y of State, Election What s Guide on my Ballot?: (2012), Arizona s available at http://www.azsos.gov/election/2012/Info/PubPamphlet/english/ebook.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. - 10 - Id. Despite the short period before the election, we found that the Secretary of State had substantially complied with the statutory and constitutional requirements. ¶17 Id. 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. in which provided the to Given the unique circumstances of this case, full the and correct Secretary of copy of State s the Office, initiative was the was error 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 right to propose laws. 811 P.2d at 18-19. signers and protect the people s See, e.g., Kromko, 168 Ariz. at 57-58, We hold that the initiative substantially complied with A.R.S. § 19-111(A). ¶19 We conclude with a few final notes. believed that versions of Secretary the Bennett, initiative had - 11 - The trial court after discovering that two been submitted, had the 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, frivolous.3 such Although as we suggesting recognize that the the defense pressures to was speed election cases through the courts, we disagree that the defense interposed This was case inconsequential presented Secretary s making. the Committee s initiative. an or unusual wasted judicial circumstance resources. not of the He was placed in a difficult position by filing of conflicting versions of its The Secretary proceeded properly in bringing this issue to the court. B. ¶21 Attorneys Fees 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. - 12 - against the state . . . to compel a state officer . . . to perform an Because the act imposed Committee by law as a duty prevailed on the on the merits, it officer. 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. the Secretary in this Because the law imposes no duty on unusual circumstance caused by the Committee, we find that an award of fees under A.R.S. § 122030(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. ¶22 CONCLUSION 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 - 13 -

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