                    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




                              - 2 -
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

                                    - 3 -
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
                                             - 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     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

                                             - 5 -
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
                                                - 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        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
                                         - 7 -
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
                                                 - 8 -
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.
                            - 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.                           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
                                           - 10 -
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
                                          - 11 -
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.
                             - 12 -
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

                                         - 13 -
