Ann-Eve Pedersen v. Ken Bennett

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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