Feldmeier v. Watson

SUPREME COURT OF ARIZONA
En Banc

BILL FELDMEIER, a qualified ) Arizona Supreme Court
elector of the City of Prescott, ) No. CV-05-0325-AP/EL
)
Plaintiff/Appellee, ) Yavapai County
) Superior Court
v. ) No. CV 20050705
)
MARIE L. WATSON, in her official )
capacity as the Prescott City ) O P I N I O N
Clerk; ANA WAYMAN-TRUJILLO, in )
her official capacity as Yavapai )
County Recorder, )
)
Defendants/Appellees, )
)
CITIZENS FOR RESPONSIBLE GROWTH, )
)
Defendant/Real Party in Interest/ )
Appellant. )
)
)
__________________________________)

Appeal from the Superior Court in Yavapai County
No. CV 20050705
The Honorable Robert M. Brutinel, Judge

REVERSED AND VACATED
________________________________________________________________

LAW OFFICES OF W. GIL SHAW Prescott
By W. Gil Shaw

And

LAW OFFICES OF WILLIAM R. HOBSON Chandler
By William R. Hobson

And
COUNTERS & KOELBEL, P.C. Chandler
By Lisa J. Counters
Kevin Koelbel
Attorneys for Citizens For Responsible Growth

GAMMAGE & BURNHAM, P.L.C. Phoenix
By Lisa T. Hauser
Michella Abner
Attorneys for Bill Feldmeier
________________________________________________________________
R Y A N, Justice

¶1 The Superior Court of Yavapai County enjoined the

placement of an initiative measure on a ballot because the court

found that the petition circulators’ affidavits did not

substantially comply with the verification requirements of

Article 4, Part 1, Section 1(9), of the Arizona Constitution,

and Arizona Revised Statutes (“A.R.S.”) section 19-112(C)

(2002). Having concluded that the affidavits complied with the

legal requirements, we previously ordered that the trial court’s

ruling enjoining the placement of the initiative measure on the

ballot be vacated, with an opinion to follow. This is that

opinion.

I

¶2 Citizens for Responsible Growth (“CRG”), a political

committee, sought to place an initiative on the ballot to amend

the Prescott City Charter. The initiative was filed with the

Prescott City Clerk with sufficient signatures to qualify the

petition for the ballot.

¶3 After the City Clerk certified the measure for the

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ballot, Bill Feldmeier, an elector in the City of Prescott,

filed a complaint alleging, among other things, that the

circulators’ affidavits were defective because they “fail[ed] to

satisfy the constitutional and statutory requirement that the

circulator swear to his belief that each signer was a qualified

elector of the City of Prescott.” The affidavit on CRG’s

petition avowed in relevant part that the circulator had

determined that

each individual signed this sheet of the foregoing
petition in my presence on the date indicated, and I
believe that each signer’s name and residence address
or post office address are correctly stated and that
each signer is a qualified elector of the state of
Arizona (or in the case of a city, town or county
measure, of the city, town or county affected by the
measure proposed to be initiated or referred to the
people) . . . .

¶4 After conducting hearings on Feldmeier’s request, the

trial court enjoined the Clerk from certifying the proposed

initiative for inclusion on the ballot. The court found that

the petitions did not substantially comply with the constitution

because they failed to include the phrase “City of Prescott” on

the circulator’s affidavit.

¶5 CRG filed a timely notice of appeal. We have

jurisdiction over this appeal under Article 6, Section 5(3), of

the Arizona Constitution, and A.R.S. §§ 19-122(C), -19-141 (A),

(D)(2002).

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 II

A

¶6 On the eve of Arizona’s statehood, one of the “burning

issues” was whether Arizona should adopt the initiative and

referendum process. Whitman v. Moore, 59 Ariz. 211, 218, 125

P.2d 445, 450 (1942), overruled, in part, on other grounds by

Renck v. Superior Court, 66 Ariz. 320, 327, 187 P.2d 656, 660-61

(1947). Delegates to our constitutional convention eventually

decided Arizona should join those states that had such

procedures. Id. The voters then ratified the constitution “by

a very large percentage of the votes cast.” Id. Article 4,

Part 1, Section 1, of the Arizona Constitution, and A.R.S. §§

19-101 to -143 (2002 & Supp. 2005) set forth the rules for

initiative and referendum petitions.

¶7 The initiative process reserves to the people the

power to propose to the electorate laws and amendments to the

constitution. Ariz. Const. art. 4, pt. 1, § 1(1). The Arizona

Constitution expressly reserves the initiative power to

qualified electors of political subdivisions of the state when

legislative matters are purely of local concern. Id. § 1(8).1

The referendum process, on the other hand, is the power of the

people to accept or reject, at the polls, legislative

1
The referendum power is preserved for political
subdivisions by this same provision. Ariz. Const. art. 4, pt.
1, § 1(8).

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enactments. Id. § 1(1), (3). The legislature also may refer

proposed legislation or constitutional amendments to the

electorate. Id. § 1(3).

¶8 An initiative petition must include a brief

description of the principal provisions of the initiative; a

notice that the description may not include every provision and

anyone asked to sign has a right to examine the title and full

text of the measure, which must be attached to the petition; a

statement that the signer demands that this initiative be

submitted to the qualified electors and that, as a qualified

elector, the signer has personally signed the petition and has

not signed any other petitions for the same matter; and a

warning that it is a misdemeanor to sign the petition if certain

conditions apply. Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. §§

19-101 to -102. Whether the circulator is paid or is a

volunteer must also be indicated on the petition. A.R.S. § 19-

102(B), (C).

¶9 The petition signer must also declare that he or she

is a qualified elector of the proper political subdivision and

must provide the “post office address, the street and number, if

any, of his residence, and the date on which he signed such

petition.” Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. § 19-

112(A). The circulator must then verify the signatures in a

sworn affidavit on the back of the petition. Ariz. Const. art.

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4, pt. 1, § 1(9); A.R.S. §§ 19-101(A), -102(A), -112(C), (D).

¶10 With respect to the verification requirement, the

Arizona Constitution states, in pertinent part, the following:

[E]very sheet of every [initiative or referendum]
petition containing signatures shall be verified by
the affidavit of the person who circulated said sheet
or petition, setting forth . . . that in the belief of
the affiant each signer was a qualified elector of the
State, or in the case of a city, town, or county
measure, of the city, town, or county affected by the
measure so proposed to be initiated or referred to the
people.

Ariz. Const. art. 4, pt. 1, § 1(9) (emphasis added). The

language of A.R.S. § 19-112(C) tracks the constitutional

verification requirements:

The [circulator] . . . shall, on the affidavit form
pursuant to this section, subscribe and swear before a
notary public that . . . the circulator . . .
[believed] each signer was a qualified elector of a
certain county of the state, or, in the case of a
city, town or county measure, of the city, town or
county affected by the measure on the date indicated
. . . .

Section 19-112(D), in turn, sets forth the form for the

circulator’s affidavit.2

2
Section 19-112(D) requires, in part, the following be
printed on the reverse side of each signature sheet:

I,(print name), a person who is qualified to
register to vote in the county of , in the
state of Arizona at all times during my circulation of
this petition sheet, and under the penalty of a class
1 misdemeanor, depose and say that each individual
signed this sheet of the foregoing petition in my
presence on the date indicated, and I believe that
each signer’s name and residence address or post

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 B

¶11 We have long “recognized Arizona’s strong public

policy favoring the initiative and referendum.” W. Devcor, Inc.

v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769

(1991) (citing Pioneer Trust Co. v. Pima County, 168 Ariz. 61,

66, 811 P.2d 22, 27 (1991)). However, in light of the

differences between referendums and initiatives, we apply a

different test to each when challenged on constitutional or

statutory grounds. Id.

¶12 We require referendum proponents to strictly comply

with all constitutional and statutory requirements. Id. at 428,

814 P.2d at 769 (citing Cottonwood Dev. v. Foothills Area Coal.,

134 Ariz. 46, 48-49, 653 P.2d 694, 696-97 (1982); Direct Sellers

Ass’n v. McBrayer, 109 Ariz. 3, 6, 503 P.2d 951, 954 (1972)).

The referendum power is subject to this exacting standard

office address are correctly stated and that each
signer is a qualified elector of the state of Arizona
(or in the case of a city, town or county measure, of
the city, town or county affected by the measure
proposed to be initiated or referred to the people)
and that at all times during the circulation of this
signature sheet a copy of the title and the text was
attached to the signature sheet.
(Signature of affiant)____________________
(Residence address, street and
number of affiant,
or if no street address,
a description of residence
location) _________________________________
_ _______________________________

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because it “permits a ‘minority to hold up the effective date of

legislation which may well represent the wishes of the

majority[.]’” Id. at 429, 814 P.2d at 770 (quoting Cottonwood,

134 Ariz. at 49, 653 P.2d at 697).

¶13 In contrast, “requirements as to the form and manner

in which citizens exercise their power of initiative should be

liberally construed.” Kromko v. Superior Court, 168 Ariz. 51,

57-58, 811 P.2d 12, 18-19 (1991). This is because “courts must

exercise restraint before imposing unreasonable restrictions on

the people’s legislative authority, which ‘is as great as the

power of the legislature to legislate.’” Id. at 57, 811 P.2d at

18 (quoting State v. Osborn, 16 Ariz. 247, 250, 143 P. 117, 118

(1914)). But, while “every reasonable intendment is in favor of

a liberal construction” of the requirements for an initiative,

if “the Constitution expressly and explicitly makes any

departure . . . fatal,” the initiative cannot be placed on the

ballot. Whitman, 59 Ariz. at 220, 125 P.2d at 451.

¶14 The test for initiatives, unlike referenda, thus is

whether the petition substantially complies with the applicable

constitutional and statutory requirements. Kromko, 168 Ariz. at

58, 811 P.2d at 19. In deciding whether an initiative

substantially complies with the constitutional and statutory

requirements, a court should consider several factors, including

the nature of the constitutional or statutory requirements, the

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extent to which the petitions differ from the requirements, and

the purpose of the requirements. See Meyers v. Bayless, 192

Ariz. 376, 378, ¶¶ 10-12, 965 P.2d 768, 770 (1998) (reviewing

petition to see how well it complied with the title

requirement); Kromko, 168 Ariz. at 58, 811 P.2d at 19 (reviewing

the statutory requirements and the extent to which the petition

complied with those requirements); Whitman, 59 Ariz. at 220,

223, 229, 125 P.2d at 451-52, 454 (examining statutory and

constitutional signature requirements as well as the purpose

behind those requirements).3 Accordingly, in the context of the

formal requirements for initiatives, substantial compliance

means that the petition as circulated fulfills the purpose of

the relevant statutory or constitutional requirements, despite a

lack of strict or technical compliance.

3
We have found substantial compliance in the following
cases: Meyers, 192 Ariz. at 378, ¶ 12, 965 P.2d at 770
(concluding that even when the petition did not contain a clear
title, but a title could be found by looking at the formatting
of the petition, the petition substantially complied); Kromko,
168 Ariz. at 58-61, 811 P.2d at 19-22 (finding substantial
compliance when the petitions included non-fraudulent extraneous
short titles, which were neither authorized nor prohibited by
the constitution or statutes); Iman v. Bolin, 98 Ariz. 358, 366,
404 P.2d 705, 710 (1965) (holding that the Secretary of State
had substantially complied with requirements when he had omitted
some language from the original publicity pamphlets, but later
corrected the mistake through a correction sheet); Whitman, 59
Ariz. at 231-33, 125 P.2d at 455-56 (finding substantial
compliance when more signatures were included on petitions than
allowed by statute; some addresses were written by someone other
than the signer or indicated only by ditto marks; and
circulators did not include their cities and state, but did
include their addresses).

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¶15 The challenged initiative petitions must be examined

as a whole to determine whether they comply with the

constitutional and statutory requirements. See Meyers, 192

Ariz. at 378, ¶¶ 10-12, 965 P.2d at 770; Whitman, 59 Ariz. at

225-33, 225, 125 P.2d at 452-56, 454. If the initiative

petition, as a whole, substantially complies, the challenge will

fail, “unless the Constitution expressly and explicitly makes

any departure [from a specific requirement] fatal.” Whitman, 59

Ariz. at 220, 125 P.2d at 451.

III

A

¶16 CRG’s circulator affidavit copied the form set forth

in A.R.S. § 19-112(D). In reviewing the affidavit, the trial

court correctly discerned that substantial compliance was the

appropriate test. But the superior court held that the

initiative petition did not substantially comply with the

constitutional and statutory requirements because the

circulator’s affidavit omitted the word “Prescott,” and that

this omission “arguably” constituted a fatal failure to comply

with requirements of the constitution.

¶17 In reaching this conclusion, the trial judge primarily

relied on our decision in Devcor. In that case we held, in the

referendum context, that the Arizona Constitution and the

applicable statutes require that “the circulators [believe] each

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signer to be a qualified elector [of the municipality].” 168

Ariz. at 429, 814 P.2d at 770.

¶18 In Devcor, a group of citizens sought to refer to

Scottsdale voters a city council rezoning decision. Id. at 427-

28, 814 P.2d at 768-69. The owners of the rezoned land

challenged the sufficiency of the referendum petitions. Id.

The referendum petition affidavits stated only that the

circulator believed each signer to be a qualified elector of the

State of Arizona, not that the circulator believed that the

signer was a qualified elector of the City of Scottsdale. Id.

at 429, 814 P.2d at 770. Because the affidavits included no

language mentioning the City of Scottsdale, or even any

indication that the measure affected legislation of “a city,

town or county,” we concluded that the affidavits did not

strictly comply with the constitution or statutes for a

referendum petition. Id. The petitions were therefore

“insufficient to require an election.”4 Id. at 432, 814 P.2d at

773.

¶19 The trial court’s reliance on Devcor is misplaced for

4
Devcor did discuss whether the petitions could be saved on
other grounds. 168 Ariz. at 431-32, 814 P.2d at 772-73. But we
held that the defects in the petitions were not cured. Id.
Here, CRG also raised the issue of whether any possible defect
could be cured with other evidence. Because we conclude the
petitions in this case comply with the constitutional and
statutory requirements, we do not address the issue of when or
how a defective initiative petition may be cured.

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three reasons. First, Devcor involved referendum petitions, not

initiative petitions. Devcor therefore applied the strict

compliance test and not the substantial compliance test. Id. at

428-29, 814 P.2d at 769-70.

¶20 Second, the language used in the circulator affidavit

in Devcor did not track the language of the constitution. 168

Ariz. at 429-32, 814 P.2d at 770-73. Instead, the circulator’s

affidavit followed the form set forth in then A.R.S. § 19-112(C)

(1990) and the form provided by the Secretary of State, both of

which referred to a signer only as being a qualified elector of

the State of Arizona. We concluded that the decision to follow

the form in § 19-112(C) could not excuse the failure to follow

the constitution. Devcor, 168 Ariz. at 430, 814 P.2d at 771.

No language, parenthetical or otherwise, indicated the

circulator’s belief that the signers were qualified electors of

the City of Scottsdale. Id. at 429, 814 P.2d at 770. Because

Article 4, Part 1, Section 1(9), of the Arizona Constitution

requires that the affiants swear to their belief that each

petition signer is a qualified elector of the city when the

initiated or referred matter affects a city, the petitions were

constitutionally insufficient. Devcor, 168 Ariz. at 429-32, 814

P.2d at 770-73.

¶21 Third, the statute followed by the circulators in

Devcor was amended shortly after the opinion in Devcor was

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published. See 1991 Ariz. Sess. Laws, 3d Spec. Sess., ch. 1, §

8. The amended statute required the circulator affidavit form

to include parenthetical language relating to local initiative

or referendum measures. See A.R.S. § 19-112(D). This language

tracks the language of Article 4, Part 1, Section 1(9), of the

Arizona Constitution and A.R.S. § 19-112(C). As noted, CRG used

the language of the amended statute, verbatim, to create its

circulator affidavits.

B

¶22 Because CRG’s circulator affidavits expressly followed

the form set out in A.R.S. § 19-112(D), the superior court erred

in finding the affidavits did not substantially comply with the

constitutional and statutory requirements. For a local ballot

measure, the relevant provisions require the circulator to swear

out an affidavit stating, in part, a belief that the signers

were qualified electors of the “city, town or county affected by

the measure.” The parenthetical language in A.R.S. § 19-112(D)

makes that affirmation, but does not expressly require the

specific identification of the governmental subdivision

involved.

¶23 While it may have been the legislature’s intent to

require that the parenthetical language be replaced with the

name of the local governmental entity, that intent is not clear

from the face of A.R.S. § 19-112(D). The form set forth in §

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19-112(D) contains lines in places in which the legislature

intended for a parenthetical to be filled in. There is no line,

however, under or adjacent to the parenthetical referring to

“the case of a city, town or county measure.” Id.

Consequently, the failure to replace the statutory parenthetical

language with the “City of Prescott” is not a basis for finding

a lack of substantial compliance with the constitution or the

statute.

¶24 Moreover, because CRG used the form set out in A.R.S.

§ 19-112(D), its circulator affidavit complied with the purpose

behind the constitutional and statutory requirements. The

purpose of the verification requirements, found in Article 4,

Part 1, Section 1(9), of the Arizona Constitution, and A.R.S. §

19-112(C), is to ensure the circulators use “reasonable efforts

to obtain valid signatures.” Devcor, 168 Ariz. at 432, 814 P.2d

at 773.

¶25 Viewed as a whole, the circulator affidavit and

petition in this case fulfill the purpose underlying the

constitutional and statutory requirements. The front page of

the petition states that it is a City of Prescott initiative,

lending meaning to the parenthetical information set forth in

the circulator’s affidavit. The form itself precisely tracked

the statutory form in A.R.S. § 19-112(D). Because the petition

clearly states that it pertains to a City of Prescott measure,

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the parenthetical language in the affidavit indicates that the

affiant believes the signer to be a qualified elector of the

city. This is at the very least substantial – and arguably

literal – compliance with the relevant statutory and

constitutional mandates.

IV

¶26 CRG requests costs and attorneys’ fees under A.R.S. §

12-2030 (2003). That statute requires a court to award fees and

expenses to any non-governmental party that prevails by

adjudication on the merits “in a civil action brought by the

party against . . . any political subdivision of this

state . . . to compel . . . any officer of any political

subdivision . . . to perform an act imposed by law as a duty on

the officer.” Id. (emphasis added). CRG did not bring the

original action. Rather, Feldmeier brought the original action;

CRG was the real party in interest. Moreover, the Prescott City

Clerk and the Yavapai County Recorder did not fail to perform a

duty required of them. These officials actually certified the

initiative measure for the ballot; it was the superior court

that enjoined the measure. We therefore deny CRG’s request for

attorneys’ fees.

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 V

¶27 For the foregoing reasons, we reverse the trial

court’s judgment and vacate the injunction against the Prescott

City Clerk.

________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Ruth V. McGregor, Chief Justice

_________________________________________
Rebecca White Berch, Vice Chief Justice

_________________________________________
Andrew D. Hurwitz, Justice

_________________________________________
W. Scott Bales, Justice

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