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Molera v. Reagan

Supreme Court of Arizona

October 26, 2018

Jaime Molera, et al., Plaintiffs/Petitioners/Appellants,
v.
Michele Reagan, in her capacity as the Secretary of State of Arizona, Defendant/Respondent/Appellee, and Invest in Education Committee, a political action committee, Real Party in Interest/Appellee. Invest in Education Committee, a political action committee; Joshua Buckley, an individual, Cross-Plaintiffs/Appellees.
v.
Michele Reagan, in her capacity as the Secretary of State of Arizona, Cross-Defendant/Appellant, and J.D. Mesnard, in his Official Capacity as the Speaker of the Arizona House of Representatives; and Steven B. Yarbrough, in his Official Capacity as President of the Arizona Senate, Intervenors in the Cross-Claim/Appellants.

          Appeal from the Superior Court in Maricopa County The Honorable James D. Smith, Judge No. CV2018-010209

          Kory Langhofer, Thomas Basile, Stewart Salwin, Statecraft, PLLC, Phoenix, Attorneys for Jaime Molera, Jennifer Henricks, J.D. Mesnard and Steven B. Yarbrough

          Kara Karlson, Assistant Attorney General, Joseph Eugene La Rue, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, Attorneys for Michele Reagan

          Israel G. Torres, James E. Barton, II, Saman J. Golestan, Torres Law Group, PLLC, Tempe, Attorneys for Invest in Education Committee

          Timothy A. La Sota, Timothy A. La Sota, PLC, Phoenix, Attorneys for Amicus Curiae The Arizona Free Enterprise Club

          Brett W. Johnson, Jennifer Hadley Catero, Colin P. Ahler, Andrew Sniegowski, Brianna Long, Lindsay Short, Snell & Wilmer L.L.P., Phoenix, Attorneys for Amicus Curiae State Representative Vince Leach

          Roopali H. Desai, D. Andrew Gaona, Coopersmith Brockelman PLC, Phoenix; Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Attorneys for Amici Curiae Matthew G. Madonna; Sandra L. Bahr; Animal Defense League of Arizona; Friends of ASBA, Inc.; Arizona Advocacy Network; and Planned Parenthood Advocates of Arizona

          Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation, the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Andrew G. Pappas, Assistant Solicitor General, Phoenix, Attorneys for Amicus Curiae State of Arizona

          Robert G. Schaffer, Lewis Roca Rothgerber Christie LLP, Phoenix, Attorneys for Amici Curiae Greater Phoenix Chamber and Home Builders Association of Central Arizona

          The Court issued a per curiam decision joined by VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, BOLICK, GOULD, and LOPEZ. CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, authored a dissenting opinion. JUSTICE TIMMER authored a separate dissenting opinion.

          PER CURIAM.

         ¶1 In this opinion, we explain the reasons for our prior order disqualifying the Invest in Education Act initiative from the November 2018 general election ballot. We greatly respect the initiative process, including the civic activism required to collect the signatures necessary to qualify a ballot measure, and we do not lightly disturb the fruits of such efforts. However, we must do so, as the Court has done in various prior circumstances, when essential requirements necessary to qualify a measure are not adequately followed. We hold here that the initiative's proponents did not comply with the requirements of A.R.S. § 19-102(A) because their description of the initiative's principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot. I.

         ¶2 On April 30, 2018, the Invest in Education Committee ("Committee") filed with the Secretary of State a proposed initiative called the "Invest in Education Act," which would increase K-12 education funding and raise certain income tax rates to support it. As required by § 19-102(A), the Committee prepared a 100-word initiative description for placement on the petitions to qualify the measure for the ballot. The description provided:

The Invest in Education Act increases the classroom site fund by raising the income tax rate by 3.46% on individual incomes over a quarter million dollars (or household incomes over half a million dollars), and by 4.46% on individual incomes over half a million dollars (or household incomes over a million dollars); designates 60% of new funds for teacher salaries and 40% for operations; adds full day kindergarten and pay raises for student support services personnel as permitted fund uses; requires governing boards seek teacher and personnel input on fund use plans; defines teacher and student support services personnel.

         ¶3 The petitions also contained the following language required by § 19-102(A):

Notice: This is only a description of the proposed measure (or constitutional amendment) 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.

         ¶4 On July 5, the Committee submitted approximately 270, 000 signatures to the Secretary of State in support of the initiative. Although the Secretary invalidated some petition sheets, she determined that the Committee filed a sufficient number of valid signatures to qualify the initiative for the ballot.

         ¶5 Petitioners Jaime Molera and Jennifer Henricks ("Petitioners") filed a special action in Maricopa County Superior Court seeking to invalidate the initiative because (1) the 100-word initiative description was misleading in that it mischaracterized the size of the proposed tax increase and omitted a change in income tax indexing; and (2) although § 19-102(D) requires a circulator to check a box on petition sheets to indicate whether he or she is paid, a third party pre-marked the boxes on most petition sheets. The Committee filed a cross-complaint challenging the constitutionality of A.R.S. § 19-102.01(A), which requires strict compliance with constitutional and statutory requirements for statewide initiatives. The Committee also sought to restore some of the petition sheets invalidated by the Secretary of State.

         ¶6 The superior court ruled that § 19-102.01 is unconstitutional, that both the 100-word description and the pre-checked circulator boxes satisfied statutory requirements, and that the Secretary of State erroneously excluded some petition sheets. The court thus concluded that the initiative was eligible for the ballot.

         ¶7 Pursuant to A.R.S. ยง 19-122(C), Petitioners filed an expedited appeal in this Court contesting all but the last of those rulings. Following our review, we issued an order determining that the 100-word initiative description created a significant danger of confusion or unfairness, thus invalidating the petition. As a result, we do not ...


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