SUPREME COURT OF ARIZONA
En Banc
CONNIE WILHELM, a citizen and ) Arizona Supreme Court
qualified elector of Maricopa ) No. CV-08-0269-AP/EL
County, ROBERT A. SHANK, a )
citizen and qualified elector of ) Maricopa County
Maricopa County, and EDWARD P. ) Superior Court
TACZANOWSKY, a citizen and ) No. CV2008-017368
qualified elector of Pima County, )
)
)
Plaintiffs/Appellants, ) O P I N I O N
)
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. )
)
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Sam J. Myers, Judge
Affirmed
________________________________________________________________
GAMMAGE & BURNHAM, PLC Phoenix
By Lisa T. Hauser
Gregory J. Gnepper
Heather J. Boysel
Attorneys for Connie Wilhelm, Robert A. Shank, and
Edward P. Taczanowsky
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Tanja K. Shipman, Assistant Attorney General
Barbara A. Bailey, Assistant Attorney General
Attorneys for Janice K. Brewer
TERENCE C. HANCE, COCONINO COUNTY ATTORNEY Flagstaff
By Jean E. Wilcox, Deputy County Attorney
Attorneys for Coconino County Board of Supervisors
BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Daniel S. Jurkowitz, Deputy County Attorney
Attorneys for Pima County Board of Supervisors
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 circulated by the Homeowners’ Bill of Rights
Committee (“proponents”) in an action under Arizona Revised
Statute (“A.R.S.”) section 19-122(C) (2002). The 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 hearing, a superior court judge rejected Wilhelm’s
claims. Wilhelm timely appealed, and we affirmed the superior
court’s judgment by order. This opinion explains our order. We
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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 courts follow a rule of “substantial
compliance.” Feldmeier v. Watson (Citizens 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 determine whether the petition, considered “as a
whole,” “fulfills the purpose of the relevant statutory or
constitutional requirements, despite a lack of strict or
technical compliance.” Id. 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 correct and (3) its petition summary is invalid.”
Wilhelm also asks this Court to reconsider the “substantial
compliance” standard. We decline to reconsider our standard of
review for initiative petitions and conclude that the petition
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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)). We further
stated that a “title should precede the measure.” Id. at 378,
¶¶ 11-12, 965 P.2d at 770. Although the title in Meyers
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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” in this petition complies with the 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, and provisions not
encompassed in the title are “void.” 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 constitutionality.” Clean Elections Inst., Inc. v.
Brewer, 209 Ariz. 241, 243, ¶ 4, 99 P.3d 570, 572 (2004)
(internal quotation marks and citations omitted). 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 “the principal
provisions of the proposed measure . . . .” 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). Here the petition included a summary and
the required notice. But Wilhelm claims that the summary in
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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
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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). In that case, the text of the
measure under review included short titles that were not
specifically called for by statute. Id. at 57-59, 811 P.2d at
18-20. 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 degree of fraud, confusion, and unfairness
sufficient to invalidate the petition upon which 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.”).
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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. Id.
¶14 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 or mislead. The proponents included the warning
required by the legislature and informed signers that the
summary had been prepared by initiative supporters and advised
them to review the entire measure. Thus, potential signers were
warned that the summary 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 (agreeing with criticism of short titles that “contain[]
either untrue representations designed to defraud potential
signatories, or highly inflammatory language calculated to
incite partisan rage”). Neither the initiative measure nor the
summary improperly obscures the proposed two-year extension to
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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. Section 19-112(B) requires
that the text of an initiative 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) INJUNCTIVE OR OTHER EQUITABLE RELIEF TO
RESTRAIN ANY VIOLATION OF SECTION 12-
1365.01;
(b) RESCISSION OF ANY CONTRACT TO PURCHASE A
DWELLING MADE IN VIOLATION OF SECTION 12-
1365.01;
(c) ANY ACTUAL DAMAGES CAUSED BY ANY VIOLATION
OF SECTION 12-1365.01;
(d) COMPENSATORY DAMAGES FOR WILLFUL VIOLATION
OF SECTION 12-1365.01; AND
(e) 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.
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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 The purpose of A.R.S. § 19-112(B) is to call attention
to amended and added language. Any failure of the present
petition not to comply is not fatal for two reasons. 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. See Feldmeier,
211 Ariz. at 449, ¶ 25, 123 P.3d at 185. The non-capitalized
language derives its meaning from the capitalized sections
preceding it. Consequently, the failure to capitalize the
language did not cause the measure to fail to substantially
comply with the statutory requirements.
E
¶19 Finally, we decline Wilhelm’s invitation to revisit
our standard of substantial compliance review for initiative
petitions. Wilhelm argues that this Court’s standard for
evaluating initiative petitions has eroded such that the
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requirements to place a measure before voters are “near
extinction.” As a result, she claims, voters have become too
empowered, the process has been abused, and some support
restricting the process. We do not believe, however, that the
possibility that some people may favor modifying the
constitutional and statutory laws for initiatives is a
sufficient reason for us to abandon our 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
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