                     SUPREME COURT OF ARIZONA

REP. ANDREW TOBIN, Chairman of     )   Arizona Supreme Court
Legislative Council; SEN. STEVE    )   No. CV-12-0273-SA
PIERCE, Co-Chairman of             )
Legislative Council; SEN. ANDY     )   Maricopa County
BIGGS, Member of Legislative       )   Superior Court
Council; SEN. LINDA GRAY, Member   )   No. CV2012-010912
of Legislative Council; SEN.       )
LORI KLEIN, Member of              )
Legislative Council; SEN. STEVE    )
YARBROUGH, Member of Legislative   )   O P I N I O N
Council; REP. STEVE COURT,         )
Member of Legislative Council;     )
REP. DEBBIE LESKO, Member of       )
Legislative Council; and REP.      )
STEVE MONTENEGRO, Member of        )
Legislative Council,               )
                                   )
                      Petitioners, )
                                   )
                  v.               )
                                   )
HONORABLE JOHN REA, JUDGE OF THE )
SUPERIOR COURT OF THE STATE OF     )
ARIZONA, in and for the County     )
of Maricopa,                       )
                                   )
                       Respondent, )
                                   )
QUALITY EDUCATION & JOBS           )
SUPPORTING I-16-2012, a            )
registered Arizona Political       )
Committee,                         )
                                   )
           Real Party in Interest. )
__________________________________)


    Special Action from the Superior Court in Maricopa County
             The Honorable John Christian Rea, Judge

              JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________
ARIZONA LEGISLATIVE COUNCIL                              Phoenix
     By   Michael E. Braun
          Kenneth C. Behringer
          Michele J. Hanigsberg
          Patricia A. Probst
          Anthony Tsontakis
Attorneys for Petitioners Andrew Tobin, Steve Pierce, Andy
Biggs, Linda Gray, Lori Klein, Steve Yarbrough, Steve Court,
Debbie Lesko, and Steve Montenegro

TORRES LAW GROUP, PLLC                                   Phoenix
     By   James E. Barton II
Attorneys for Real Party in Interest Quality Education & Jobs
Supporting I-16-2012

PERKINS COIE LLP                                         Phoenix
     By   Paul F. Eckstein
          D. Andrew Gaona
Attorneys for Amicus Curiae We Build Arizona
________________________________________________________________

P E L A N D E R, Justice

¶1           Quality   Education   &   Jobs   Supporting   I-16-2012   (“the

Committee”)     challenged   the   Legislative    Council’s   analysis    of

that initiative (“Proposition 204” or “the Act”), claiming that

the analysis was misleading and not impartial.                The superior

court upheld that challenge in part and ordered the Council to

revise or delete the analysis in certain respects.             The Council

then filed a petition for special action in this Court.                   On

August 17, 2012, we issued an order accepting jurisdiction but

denying relief, thereby upholding the superior court’s order.

This opinion explains our reasoning.1



1
       On    November 6, 2012, the         voters rejected Proposition
204.        Ariz. Sec’y of State,          State of Arizona Official

                                       2
                                            I.

¶2          In a May 2010 special election, the people of Arizona

approved    a   tax    measure      designated     as    Proposition       100.        That

proposition      amended       our        state   constitution        to     levy        an

additional, temporary one percent sales tax “for the purpose of

raising    state      revenues      for    primary      and   secondary     education,

health and human services and public safety.”                     Ariz. Const. art.

9, § 12.1(A) (2010); see id. Historical and Statutory Notes.

The   temporary       tax     was    imposed      for     three    years     and       will

automatically expire on May 31, 2013.                Id. § 12.1(B), (H).

¶3          In 2012, the Committee applied for and processed an

initiative for the stated purpose of “renew[ing] the one-cent

sales tax” to provide “dedicated funding” for various education,

public     safety,      and      transportation-related            matters.             The

initiative’s sales tax and the resulting revenues would not be

subject to legislative reduction, revision, or fund sweeps.                             The

Committee collected approximately 290,000 signatures to qualify

the initiative to appear on the November 2012 general election

ballot as Proposition 204.

¶4          The Legislative Council then undertook its statutorily

required    task      of    preparing       an    impartial       analysis        of    the

initiative.      See A.R.S. § 19-124(B) (2012).                   After receiving a



Canvas      18     (Dec.      3,     2012),      available                               at
www.azsos.gov/election/2012/General/Canvass2012GE.pdf.

                                            3
draft   from      legislative    staff,        the   Council    publicly   met   and

considered        the   analysis.     As       amended   and    approved    by   the

Council, the two-page analysis contained as its first paragraph

the following:

                   Beginning June 1, 2013, Proposition [204]
             would    permanently    increase     the   transaction
             privilege tax and the use tax (“sales tax”) by
             one cent per one dollar.              The proposition
             anticipates the tax increase to generate at least
             one billion dollars.      The monies collected from
             the tax increase would be used for educational
             programs, public transportation infrastructure
             projects     and   human     services    programs   as
             summarized below.     Proposition [204] also would
             require the Legislature to annually increase
             specific    components    of    the   school   finance
             formula.     In addition, Proposition [204] would
             provide that the specified funding levels for the
             state’s    kindergarten-through-twelfth-grade      and
             state university systems cannot be reduced below
             the levels for fiscal year 2011-2012 or 2012-
             2013, whichever is greater, that limits on school
             district bonds and overrides cannot be below
             those in effect for 2012, that vehicle license
             tax and related highway user revenues cannot be
             diverted for any other purpose and that the sales
             tax base cannot be adjusted in a way that causes
             the amount of sales tax collected to be less than
             the amount collected in the prior year, plus six
             per cent, unless there is a corresponding change
             in the tax base that results in no reduction in
             the    amount   of  sales     tax   collected.     The
             Legislature would not have the ability to adjust
             the new tax increase disbursements under any
             circumstances.

¶5           In     listing     how   Proposition         204     would    annually

distribute the first billion dollars of “additional sales tax”

revenues, the Council’s analysis stated:




                                           4
                  Fifty million dollars [would go] into the
            “university     scholarship,     operations     and
            infrastructure fund”, to be distributed according
            to rules adopted by the Board of Regents.
            Between fifty and sixty per cent of the fund
            monies    must be   used   to  provide   university
            scholarships   to   resident  students   based   on
            financial need or academic achievement, and the
            remaining fund monies would be allocated to the
            three    state  universities  for   operating   and
            infrastructure expenses based on performance in
            meeting goals set by the Board of Regents.      The
            proposition fails to define who qualifies as a
            “resident” for purposes of the scholarships.

¶6          The Committee filed a special action in superior court

to challenge portions of the Council’s analysis.                         Among other

things,    the    Committee     alleged          that     the     analysis    was   not

impartial because it (1) misleadingly and repeatedly stated that

the   initiative      would     impose       a    “tax     increase,”        when   the

initiative’s additional tax rate increment is identical to that

imposed   under    the    existing    temporary           sales    tax   approved   by

voters in 2010, and would take effect only when the existing tax

expires on May 31, 2013; (2) inaccurately stated that under the

initiative, “the sales tax base cannot be adjusted in a way that

causes the amount of sales tax collected to be less than the

amount    collected      in   the   prior        year”;    and     (3)   gratuitously

pointed out that the initiative fails to define who qualifies as

a “resident” for purposes of distributing university scholarship

monies.

¶7          After admitting stipulated exhibits into evidence and



                                         5
hearing oral argument, the superior court ruled in favor of the

Committee on the three points noted above.                                The court ordered

that those challenged portions of the analysis must be revised

or    deleted.         The    Council’s         special        action        in    this    Court

followed.

                                               II.

¶8             Subject       matter       jurisdiction              in     this    matter       is

undisputed.       See Ariz. Legislative Council v. Howe, 192 Ariz.

378, 382-83 ¶¶ 11-14, 965 P.2d 770, 774-75 (1998); Fairness &

Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 586-90,

886    P.2d     1338,     1342-46         (1994).             As     for     special      action

jurisdiction, the Council’s petition raises purely legal issues

of statewide importance.                 See Cronin v. Sheldon, 195 Ariz. 531,

533   ¶   2,    991    P.2d   231,       233    (1999)        (citing      such    factors      in

accepting      jurisdiction         of    special       action       from    a    trial    court

ruling).          In     addition,         given        the        time    constraints         for

preparation, printing, and mailing of the Secretary of State’s

publicity      pamphlet,      see     A.R.S.        §   19-123       (2012),      there   is    no

“equally plain, speedy, and adequate remedy by appeal,” Ariz. R.

P. Spec. Act. 1(a).             Therefore, we accept jurisdiction of the

special action.          See Ariz. R. P. Spec. Act. 1(a), 4(a), 7(b);

Howe, 192 Ariz. at 382 ¶ 10, 965 P.2d at 774.




                                                6
                                      III.

¶9           Under A.R.S. § 19-123(A)(4), the Secretary of State’s

publicity pamphlet, which is mailed to the households of all

registered voters before the general election, shall contain “a

legislative      council       analysis        of        the   ballot   proposal    as

prescribed      by   section    19-124.”        In       pertinent   part,   §   19-124

provides:

             Not later than sixty days preceding the regular
             primary election the legislative council, after
             providing reasonable opportunity for comments by
             all legislators, shall prepare and file with the
             secretary of state an impartial analysis of the
             provisions of each ballot proposal of a measure
             or proposed amendment.       The analysis shall
             include a description of the measure and shall be
             written in clear and concise terms avoiding
             technical terms wherever possible.    The analysis
             may contain background information, including the
             effect of the measure on existing law, . . . if
             the measure . . . is approved or rejected.

A.R.S. § 19-124(B) (emphasis added).

¶10          “[T]he purpose of the required analysis is to assist

voters     in   rationally      assessing           an     initiative   proposal    by

providing a fair, neutral explanation of the proposal’s contents

and the changes it would make if adopted.”                     Greene, 180 Ariz. at

590, 886 P.2d at 1346.            “It is not the Council’s function to

assist either side.”           Howe, 192 Ariz. at 383 ¶ 13, 965 P.2d at

775.     The Council’s objective, neutral role differs greatly from

that of a measure’s proponents and opponents, who will of course

“advocate with arguments that, needless to say, may be anything


                                           7
but    neutral     expositions.”               Id.;     see     A.R.S.    §     19-123(A)(3)

(providing       that         publicity    pamphlet           “shall     contain         .     .     .

arguments    for        and    against     the       measure”);    A.R.S.       §    19-124(A)

(allowing persons to file with Secretary of State “argument[s]

advocating or opposing the measure”).

¶11          The        Council       correctly          notes         that     substantial

compliance with § 19-124(B) is the standard, Greene, 180 Ariz.

at 589, 886 P.2d at 1345, and that the question is “whether

reasonable       minds        could   conclude         that     the     Council          met       the

requirements of the law, not whether we believe the judicial

system could itself devise a better analysis,” Howe, 192 Ariz.

at 383 ¶ 17, 965 P.2d at 775.                  But other principles set forth in

Greene, Howe, and more recent cases also guide our analysis.

¶12          In Greene, for example, this Court held that § 19-

124(B) “requires the legislative council to produce a neutral

explanation        of     initiative        proposals,          avoiding       argument             or

advocacy, and describing the meaning of the measure, the changes

it makes, and its effect if adopted.”                           180 Ariz. at 591, 886

P.2d   at   1347.         “An     impartial          analysis    and     description,”              we

further     held,       “requires        the     legislative          council       to       eschew

advocacy and to adopt, instead, an evenhanded assessment that

neither omits, exaggerates, nor understates material provisions

of an initiative measure.”                Id. at 593, 886 P.2d at 1349.

¶13          Likewise,          the   language          used      in     the    Legislative


                                                 8
Council’s analysis “must be free from any misleading tendency,

whether of amplification, of omission, or of fallacy, and it

must not be tinged with partisan coloring.”                          Id. at 590, 886

P.2d at 1346 (quoting Plugge v. McCuen, 841 S.W.2d 139, 140

(Ark. 1992)); see also Citizens for Growth Mgmt. v. Groscost

(CGM), 199 Ariz. 71, 72 ¶ 4, 13 P.3d 1188, 1189 (2000) (same);

Howe, 192 Ariz. at 383 ¶ 13, 965 P.2d at 775 (same).                             Employing

“rhetorical       strategy”    in      the       crafting      of    wording      of     the

analysis,     therefore,      is    not      compatible        with       the    statute’s

impartiality requirement.           CGM, 199 Ariz. at 73 ¶ 6, 13 P.3d at

1190.

¶14         To    obtain     special      action      relief,       the    Council      must

establish     that    the     superior           court’s    ruling        is    arbitrary,

capricious, or an abuse of discretion.                     Ariz. R. P. Spec. Act.

3(c).   Misapplication of law or legal principles constitutes an

abuse of discretion.          City of Phoenix v. Geyler, 144 Ariz. 323,

328-29, 697 P.2d 1073, 1078-79 (1985).                      Because no evidentiary

hearing was held below, “we deal with an issue of law and thus

review the trial judge’s legal conclusions de novo.”                            Howe, 192

Ariz. at 383 ¶ 15, 965 P.2d at 775.

¶15         The      legal     question            presented        is     whether       the

Legislative       Council    produced        “an     impartial       analysis      of    the

[initiative’s] provisions” and an accurate “description of the

measure,” as § 19-124(B) requires.                   We do not write on a blank


                                             9
slate in this area of the law.                In Greene and subsequent cases,

this Court has evaluated Legislative Council analyses of various

initiatives for compliance with § 19-124(B) and established the

guiding principles discussed above.                 Neither side has urged us

to overrule or deviate from those cases.                   In concluding that the

Legislative Council’s analysis did not comply with § 19-124(B)’s

requirements in three respects, the superior court, contrary to

the Council’s argument, properly adhered to our case law and

applied     the    correct          legal    standards.           Based     on     those

authorities, we cannot say that the superior court erred in its

ruling.

                                            IV.

¶16          Two of the Committee’s challenges, which the superior

court upheld, relate to the first paragraph of the Legislative

Council’s    analysis.          The     first     sentence    of    that     paragraph

accurately      stated       that     Proposition     204     “would       permanently

increase the transaction privilege tax and the use tax (‘sales

tax’) by one cent per one dollar.”                 The paragraph then referred

three   times     to   the    “tax    increase”     that    the    initiative      would

impose.     The Council rejected a proposed amendment that would

have deleted the word “increase” and would have instead inserted

the   following,       new   second    sentence:       “Currently,         there   is   a

three-year      temporary      one-cent-per-dollar          sales    tax    that    will

expire on the date this permanent tax goes into effect.”                             The


                                            10
superior court found the phrase “tax increase,” absent some such

explanatory context, not impartial.

¶17           Though       “fairly        debatable,”        as     the       superior        court

remarked, the initiative’s proposed tax may fairly be described

as a “new” or additional “tax increase.”                           The Council’s use of

those phrases is neither inaccurate nor partial.                                Under current

law, the state sales tax rate on most business classifications

will be 5.6 percent of the tax base on June 1, 2013.                                     A.R.S.

§ 42-5010(A)(1), (G) (2012).                     The initiative would impose an

additional one percent tax from that date forward, to raise the

rate    to    6.6     percent.            Contrary      to        the     superior       court’s

statement, Proposition 204 would not “continue a temporary tax

that would otherwise expire.”                    Rather, the initiative proposes

statutory      changes       that     would      impose      a     new,       permanent,        and

legislatively unalterable tax, the revenues of which would be

directed      to    different       and    broader    uses        than       those    under     the

current, constitutionally-imposed temporary tax.

¶18           Nonetheless,          by      omitting         that        the        initiative’s

proposed      new    tax     increase       is     equivalent           in    amount     to     the

current, temporary tax increase and would take effect only when

the latter expires, the Council’s analysis is not completely

“free from any misleading tendency.”                      Greene, 180 Ariz. at 590,

886    P.2d    at    1346.      Without          providing        any        such    explanatory

context, the Council’s repeated reference to a “tax increase” in


                                              11
the first paragraph of the analysis “attempts to persuade the

reader at the very outset” that the initiative is contrary to

his or her financial interests.                CGM, 199 Ariz. at 72 ¶ 6, 13

P.3d at 1189.

¶19        Although the Council is not statutorily required to

include “background information” in its analysis, A.R.S. § 19-

124(B), omission of significant contextual information may be

misleading and thus violate the statute, CGM, 199 Ariz. at 73

¶ 10, 13 P.3d at 1190; Healthy Ariz. Initiative PAC v. Groscost,

199 Ariz. 75, 77 ¶ 4, 13 P.3d 1192, 1194 (2000); Sotomayor v.

Burns, 199 Ariz. 81, 82 ¶¶ 4-5, 13 P.3d 1198, 1199 (2000).

Here, absent any such information about the timing and identical

amount of the existing, albeit temporary, sales tax vis-à-vis

the   initiative’s     proposed      sales          tax    increase,    the      first

paragraph of the analysis is not “a completely neutral summary,

without   advocacy   or     argument,”        but   rather   “appears    to    be    an

attempt to affect the outcome of the public vote.”                          CGM, 199

Ariz. at 73–74 ¶¶ 11, 13, 13 P.3d at 1190–91.                      Therefore, the

superior court did not err in ordering revision or deletion of

that paragraph.

¶20        We    likewise    find   no    error       in   the   superior     court’s

upholding the Committee’s challenge to a second aspect of that

same paragraph.      Section 11 of the initiative proposes to add a

new   statute,    A.R.S.    §   42-5029.02,          which   would     include      the


                                         12
following subsection, in relevant part:

            G.   The tax base under this title shall not be
            adjusted in any manner that causes a reduction to
            the annual amount collected and distributed under
            this section to be less than the amount that was
            collected and distributed in the prior fiscal
            year increased by six per cent unless the
            reduction in the tax base is offset by a
            corresponding  change   in  the  tax   base  that
            effectively results either in no change in the
            annual amount collected or an increase in the
            amount collected.

(emphasis added).         Subsections (A) through (C) of proposed § 42-

5029.02,   in     turn,     refer   to   monies      collected    pursuant    to   two

other    proposed     new     statutes,     A.R.S.       §§   42-5010(H)     and   42-

5155(E), both of which provide for the one percent additional

sales tax rate increment that the initiative would impose on

certain business classifications specified in § 42-5010(A)(1).

¶21         The     first      paragraph        of     the    Council’s     analysis,

however, states that

            the sales tax base cannot be adjusted in a way
            that causes the amount of sales tax collected to
            be less than the amount collected in the prior
            year, plus six per cent, unless there is a
            corresponding change in the tax base that results
            in no reduction in the amount of sales tax
            collected.

The Council considered and rejected a proposed amendment that

would have added the phrase “applicable to the one-cent sales

tax”    after   the   words     “sales     tax       base.”      In   addition,    and

particularly      significant       to    us,    the     first   sentence     of   the

Council’s analysis refers to “sales tax” as broadly meaning “the


                                          13
transaction privilege tax and the use tax,” without limiting it

to    the   additional     one    percent     sales   tax   that   the   initiative

would impose.

¶22          The superior court ruled that the Council’s analysis

misleadingly suggested the Act would more broadly limit tax base

adjustments and impermissibly amounted to “rhetorical strategy

that tends to favor one side over the other.”                         Although the

issue is close, we agree.

¶23          Subsection (G) of proposed § 42-5029.02 is not a model

of clarity.     But it does not prohibit any and all adjustments to

the sales tax base, as a whole, if the total amount of sales tax

collected is less than the amount collected in the prior year,

as the Council’s analysis suggests.                Rather, subsection (G) only

limits changing the tax base in such a way as to cause a net

reduction in the taxes collected under § 42-5029.02, that is,

the initiative’s new one percent sales tax.

¶24          As the Committee points out, the initiative bars the

legislature from defunding the Act by manipulating the sales tax

base related to taxes collected under the Act, but explicitly

applies this restriction to only those taxes.                       Thus, changes

affecting     the   tax    base    of   the     transient   lodging      and   mining

classifications,          see    A.R.S.     §    42-5010(A)(2)–(3),        business

classifications not listed in § 42-5010(A)(1), would not impact

the amount collected under proposed §§ 42-5010(H) or 42-5155(E)


                                          14
and therefore could be changed without requiring an offset.

¶25          Subsection       (G),   contrary      to     the    Council’s    analysis,

prescribes the relationship between the tax base under Title 42,

the   tax    code     (“tax    base”),       and    the     amount     collected       and

distributed        “under     this     section      [§      42-5029.02]”       (“amount

collected”),        meaning    the     one      percent     tax     enacted     by     the

initiative.          This     provision      forbids        the    legislature       from

adjusting the tax base to effect a reduction in that amount

collected to be less than the amount collected and distributed

(under this section) plus six percent.                    The only exception is a

reduction in the tax base (under this Title) offset by a change

in the tax base (under this Title) that would either not change

the amount collected (under this section) or increase it.

¶26          The    Council’s       analysis      instead       describes    subsection

(G) as meaning “the sales tax base cannot be adjusted in a way

that causes the amount of sales tax collected to be less than

the   amount   collected       in    the   prior    year,       plus   six    per    cent,

unless there is a corresponding change in the tax base that

results in no reduction in the amount of sales tax collected.”

The analysis suggests that the overall sales tax can never be

reduced, and total collections will need to be increased by six

percent each year.           The provision says neither about the total

sales tax.     By not modifying the phrase “the amount of sales tax

collected”     to     make     clear       that    it     applies      only     to     the


                                           15
initiative’s one percent tax, the analysis misleadingly suggests

that the legislature may never adjust the sales tax base or

reduce Arizona’s sales tax.               Subsection (G), however, would not

affect the legislature’s power to reduce Arizona’s sales tax, as

long as the portion affected by the change in the sales tax base

is the 5.6 percent portion of the sales tax.

¶27         The Council’s analysis does not accurately explain, in

a     neutral,     evenhanded        manner,      the   initiative’s             qualified

limitation on adjustment of the sales tax base.                            Rather, the

analysis    overstates       that    limitation     and,   therefore,            tends    to

mislead.         Accordingly,       the    superior     court    did       not     err    in

ordering revision of that portion of the analysis.

¶28         Finally, the superior court did not err in upholding

the Committee’s challenge to a third aspect of the analysis.

Section 4 of the initiative adds a new statute, A.R.S. § 15-

1642.01, which would funnel a portion of the new tax revenues to

scholarships for state university students.                      That new statute

directs the Arizona Board of Regents to establish a scholarship

fund,    adopt    rules    to   govern     administration       of    the       fund,    and

annually allocate monies from the fund “to provide scholarships

to    resident     students     based      on   financial       need       or    academic

achievement.”

¶29         In    its     analysis    of   that    provision,        the    Legislative

Council added a sentence that says, “The proposition fails to


                                           16
define     who     qualifies    as     a    ‘resident’         for     purposes   of    the

scholarships.”          The    superior           court   upheld       the     Committee’s

challenge    to     that   statement,        finding      it    not    impartial.       The

court noted that the Council “singled out one undefined term for

emphasis,” even though many of the initiative’s other terms are

not defined, and “flag[ged]” a “highly controversial” issue by

suggesting that public funds might be used “for scholarships for

illegal immigrants,” when the initiative itself neither requires

nor suggests any such thing.

¶30          The    Council    correctly          indicates     that     the   challenged

statement is accurate and that the analysis does not mention

illegal     immigration.         But       even     accurate         statements   can    be

misleading, argumentative, “tinged with partisan coloring,” or

otherwise lack the impartiality § 19-124(B) requires.                             Greene,

180 Ariz. at 590, 886 P.2d at 1346 (quoting Plugge, 841 S.W.2d

at 140).

¶31          The statement in question was added to the analysis

only when a Council member offered an amendment at the public

meeting.         When   the    need    for    the     amendment         was    questioned,

concerns were expressed that, absent a definition of “resident,”

confusion might exist on whether “illegal aliens” could receive

scholarships.        The Council then adopted the amendment, including

the word “fails,” and rejected the following proposed wording

change: “The Act does not define resident student.”


                                             17
¶32          The initiative does not define many of its terms, such

as “school district,” “fiscal year,” “tax base adjustments,” and

“increase in the amount collected.”                   The Council’s analysis,

however, did not mention any of those definitional omissions.

Rather, the Council selectively emphasized that the initiative

does not define “resident” for student scholarship purposes and

referred to that omission as a “fail[ure],” thereby suggesting

that the initiative is flawed in that respect.                       The statement in

question also overlooks several Arizona statutes that, at least

implicitly, suggest that illegal immigrants would not qualify as

“resident students” for scholarship purposes.                       See A.R.S. § 15-

1626(A)(5) (2012) (directing Board of Regents to “differentiate”

between “residents” and other categories of university students

for   purposes    of    setting   tuition      and   fees);         id.   §   15-1803(B)

(providing    that      “a   person    who     was   not   a    citizen        or    legal

resident     of   the    United       States    or   who       is     without       lawful

immigration status is not entitled to classification as an in-

state   student      pursuant     to    section      15-1802         or   entitled     to

classification     as    a   county     resident     pursuant        to   section      15-

1802.01”).

¶33          The rather obvious purpose of the amended statement is

to inject the contentious topic of illegal immigration into an

already controversial tax measure and have voters infer from the

statement that new tax revenues could be used for illegitimate


                                         18
scholarship purposes because the initiative “fails” to define

who qualifies as a “resident.”                On its face, the statement is

true,    but       its   inclusion      and     provocative   phrasing        belie

neutrality and impermissibly advocate against the measure.                     See

CGM, 199 Ariz. at 72 ¶ 6, 13 P.3d at 1189.                  The superior court

did    not   err    in   upholding     the    Committee’s   challenge    on   this

point.

                                         V.

¶34          When Legislative Council analyses are challenged under

§ 19-124(B), we must evaluate them for statutory compliance,

though we do so reluctantly and with reservation.                    As we have

previously said, “[n]o member of this court has any particular

fondness for these challenges.”                Id. at 73 ¶ 12, 13 P.3d at

1190.    Nor can we “settle each of these disputes; our function

is    only   to    ensure   that   a   challenged    analysis   is   reasonably

impartial and fulfills the statutory requirements.”                     Howe, 192

Ariz. at 383 ¶ 17, 965 P.2d at 775.

¶35          Determinations of impartiality are not always easy or

clear-cut.         Based on our existing case law, however, we cannot

say that the superior court erred in finding the Legislative

Council’s analysis noncompliant with § 19-124(B)’s impartiality

requirement in the three respects discussed above.                We therefore

accept jurisdiction of the special action but deny relief.




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                         ___________________________________
                         A. John Pelander, Justice



CONCURRING:


___________________________________
Scott Bales, Vice Chief Justice


___________________________________
Robert M. Brutinel, Justice




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