                         SUPREME COURT OF ARIZONA

QUALITY EDUCATION & JOBS          )              Arizona Supreme Court
SUPPORTING I-16-2012, a           )              No. CV-12-0286-AP/EL
registered Arizona Political      )
Committee,                        )              Maricopa County
                                  )              Superior Court
             Plaintiff/Appellant, )              No. CV2012-011232
                                  )
                 v.               )
                                  )
KEN BENNETT, Arizona Secretary    )              O P I N I O N
of State and THOMAS HORNE,        )
Arizona Attorney General, both    )
in their official capacities,     )
                                  )
             Defendants/Appellees.)
                                  )
__________________________________)


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

              JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________

TORRES LAW GROUP                                         Phoenix
     By   James E. Barton II
Attorney for Quality Education & Jobs Supporting I-16-2012
Committee

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                Phoenix
     By   Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett and Thomas C. Horne
________________________________________________________________

P E L A N D E R, Justice

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

Committee”)     challenged    the    Secretary         of     State’s   descriptive

title   and     “yes/no”      language       used       for      that    initiative

(“Proposition     204”   or   “the       Act”)    in    the     Secretary’s   voter
information    guide    and     ballot        for       the       November       2012     general

election.     The superior court rejected that challenge, finding

the language was “not arbitrary or unquestionably inaccurate”

and   therefore    substantially        complied             with       A.R.S.     §    19-125(D)

(2012).     On August 28, 2012, we issued an order treating the

Committee’s    appeal    from        that    ruling          as    an    appellate        special

action, accepting jurisdiction but denying relief.                               This opinion

explains our reasoning.1

                                             I.

¶2          The    Committee     filed           this    matter          as   an       “expedited

election appeal,” contending that it could be filed directly in

this Court pursuant to Rule 8.1(h) of the Arizona Rules of Civil

Appellate   Procedure.          That        rule,       however,         “applies        only   to

election-related       cases     designated             by    statute         for       expedited

consideration on appeal.”             ARCAP 8.1 cmt. 1.                  This case does not

fall within that category.              Neither § 19-125(D), on which the

Committee’s       challenge     was         based,       nor        any       other       statute

authorizes an expedited appeal to this Court in this context.

Accordingly, we treat the matter as a special action and accept

jurisdiction      because      the     purely       legal          issue      raised      is    of

statewide importance, and there is no “equally plain, speedy,


1
     On    November    6,    2012,      the     voters    rejected
Proposition 204.    Ariz. Sec’y of State, State of Arizona
Official    Canvas   18    (Dec.   3,    2012),    available    at
www.azsos.gov/election/2012/General/Canvass2012GE.pdf.

                                             2
and adequate remedy by appeal.”                Ariz. R. P. Spec. Act. 1(a);

see Ariz. Legislative Council v. Howe, 192 Ariz. 378, 382 ¶ 10,

965 P.2d 770, 774 (1998).

                                      II.

¶3          Proposition     204’s    background        is       set     forth     in   our

opinion in Tobin v. Rea, No. CV-12-0273-SA (Jan. 17, 2013), also

filed    today.     In    short,    the       Committee     and        its     supporters

collected    approximately         290,000       signatures           to       place   the

initiative on the 2012 general election ballot as Proposition

204.    The Secretary prepared a descriptive title and summary of

the    measure’s   principal   provisions         pursuant        to       §   19-125(D),

which states, in relevant part:

                 There shall be printed on the official
            ballot immediately below the number of the
            measure and the official title of each measure a
            descriptive title containing a summary of the
            principal provisions of the measure, not to
            exceed fifty words, which shall be prepared by
            the secretary of state and approved by the
            attorney general and that includes the following
            or the ballot shall comply with subsection E of
            this section:

            A   “yes”   vote   shall            have      the         effect      of
            _________________.

            A   “no”   vote   shall             have      the         effect      of
            __________________.


                 The blank spaces shall be filled with a
            brief phrase, approved by the attorney general,
            stating the essential change in the existing law
            should the measure receive a majority of votes
            cast in that particular manner. In the case of a


                                          3
          referendum, a “yes” vote shall have the effect of
          approving the legislative enactment that is being
          referred.   The “yes” and “no” language shall be
          posted on the secretary of state’s website after
          being approved by the attorney general and before
          the date on which the official ballots and the
          publicity pamphlet are sent to be printed.

A.R.S. § 19-125(D).

¶4        After   consulting   with   the   Attorney   General   and

receiving input from the initiative’s proponents, the Secretary

settled on the following language for the general election guide

(or “publicity pamphlet”) and ballot:

                         Proposition _______
          PROPOSED BY INITIATIVE PETITION RELATING TO TAXATION.
                             [I-16-2012]

          EFFECTIVE JUNE 1, 2013, PERMANENTLY INCREASES THE
          STATE SALES TAX BY ONE CENT PER DOLLAR FOR THE
          PURPOSE OF FUNDING EDUCATIONAL PROGRAMS, PUBLIC
          TRANSPORTATION INFRASTRUCTURE PROJECTS, AND HUMAN
          SERVICES; FORBIDS REDUCTIONS TO CURRENT K-12 AND
          UNIVERSITY FUNDING LEVELS; AND FORBIDS REDUCTIONS
          TO THE CURRENT STATE SALES TAX BASE.

          A “yes” vote shall have the effect of permanently
          increasing the state sales tax by one cent per
          dollar, effective June 1, 2013, for the purpose
          of    funding    educational    programs,   public
          transportation infrastructure projects, and human
          services.   It forbids reductions to current K-12
          and   university   funding   levels   and  forbids
          reductions to the current state sales tax base.

          A “no” vote shall have the effect of not
          increasing the state sales tax by one cent per
          one dollar, beginning June 1, 2013.

¶5        The Committee argues that the Secretary’s description

violates § 19-125(D) by “falsely characterizing the Act as a tax




                                 4
increase” and “exaggerating the limitation on the Legislature

contained in the Act.”             The Committee’s preferred language would

have stated that the Act “replac[es] the temporary one cent per

dollar sales tax set to expire on June 1, 2013 with a permanent

one-cent      sales    tax,”     and    “forbids       reductions        to   the    current

sales   tax    base    applicable        to    the    one-cent      sales     tax.”         The

Committee      further     contends      that       the   superior       court      erred    by

failing to apply “the same substantial compliance review that

Arizona    courts      apply      to    the    Legislative        Council’s      analysis”

under A.R.S. § 19-124(B) (2012).                   We are not persuaded.

¶6            Of the cases the Committee cites, only Howe involved a

challenge      to    the   Secretary      of       State’s   descriptive         title      and

“yes/no”      language     used    in    the       publicity      pamphlet     and    ballot

regarding      a    referendum     proposal.           There,      the    superior     court

concluded that the Secretary “failed to comply with A.R.S. § 19-

125” in those respects.            Howe, 192 Ariz. at 382 ¶ 8, 965 P.2d at

774.      In overturning that ruling, this Court found that the

Secretary substantially complied with the statutory requirements

by using language that “can reasonably be regarded as an attempt

to provide necessary and appropriate information to the voting

public.”       Id.    at   384    ¶    22,    965    P.2d    at    776.       “Giving       due

deference” to the Secretary, we could not say that the chosen

language was, “as a matter of law, so overemphasized as to be

misleading,           inaccurate,            lacking         in      neutrality,             or


                                               5
argumentative.”         Id. ¶ 19.2

¶7          We    reach       the   same       conclusions          here    regarding         the

Secretary’s      descriptive        title      and       “yes/no”    language          used   for

Proposition 204.         We agree with the Committee that the Secretary

may not use language that is false or clearly misleading.                                     But

we disagree with the Committee’s assertion that the Secretary’s

description      of    the    Act   “as    a       tax   increase     is    unquestionably

inaccurate.”          As noted in Tobin, “[t]hough ‘fairly debatable,’

. . . the initiative’s proposed tax may fairly be described as a

‘new’ or additional ‘tax increase,’” and such a description “is

neither inaccurate nor partial.”                     Slip op. at 11 ¶ 17 (“[T]he

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.”).

¶8          In Tobin, we required modification of the Legislative

Council’s   analysis          not   because         it    characterized          the    Act    as

imposing a new tax increase, but only because it did not satisfy

§ 19-124(B)’s impartiality requirement, as explicated in this

Court’s case law.            Absent any explanatory context, the Council’s

analysis    was        “not     completely           ‘free    from         any    misleading


2
     For the same reasons, we rejected the challenge under
A.R.S. § 19-124(B) to the Legislative Council’s analysis of the
referendum proposal.  Howe, 192 Ariz. at 384 ¶¶ 18-20, 22, 965
P.2d at 776.

                                               6
tendency.’”          Id. ¶ 18 (quoting Fairness & Accountability in Ins.

Reform    v.       Greene,             180    Ariz.      582,    590,      886   P.2d       1338,     1346

(1994)).           Accordingly, the analysis could not be viewed as “a

completely neutral summary, without advocacy or argument.”                                             Id.

slip    op.    at        12    ¶ 19          (quoting        Citizens      for   Growth        Mgmt.    v.

Groscost, 199 Ariz. 71, 73 ¶ 11, 13 P.3d 1188, 1190 (2000)).

Nor did it lack any hint of “partisan coloring.”                                        Id. slip op.

at 9 ¶ 13 (quoting Greene, 180 Ariz. at 590, 886 P.2d at 1346).

¶9             The       statute             at   issue       here,    §     19-125(D),        does    not

expressly          require             an    “impartial         analysis”        of     the    proposed

measure,      as     does          §    19-124(B).             And    although    the       Legislative

Council’s          analysis            “shall       be       written    in    clear      and    concise

terms,” it is not subject to any word or page limit.                                             A.R.S.

§ 19-124(B).              In           contrast,         the    Secretary        is     obligated      to

summarize,          in        no       more       than       fifty     words,        “the     principal

provisions of the measure,” followed by a “brief phrase . . .

stating the essential change in the existing law” should the

measure       be    approved.                 Id.    §    19-125(D).           The    measure        here,

Proposition          204,          spanned          fourteen         single-spaced          pages      and

contained detailed and relatively complicated language regarding

state     sales       tax          and       related         provisions.          The       length     and

complexity of the initiative, and the constraints prescribed in

§    19-125(D),          are       factors          in   assessing         compliance         with    that

statute.


                                                         7
¶10         The        Committee         aptly       notes    that,    compared            to   the

Council’s analysis, the Secretary’s ballot language arguably is

more important because it might be the last or only description

the electorate sees before voting on the measure.                               But given the

different requirements and purposes of §§ 19-124 and 19-125, we

are    disinclined       to   equate       the        statutory     standards         or    import

wholesale our jurisprudence relating to the former statute in

interpreting the latter.                  Although § 19-125(D) does not permit

the Secretary to use false or clearly misleading language, the

“tax increase” language he used in the publicity pamphlet and

ballot cannot be characterized as such.

¶11         We likewise do not find false or clearly misleading

the Secretary’s statement that the Act “forbids reductions to

the current state sales tax base.”3                           The Committee challenges

that    language        as    incorrectly            “describ[ing]         a    measure         that

prohibits   altering          a    portion       of    the    tax   base       as    prohibiting

altering the entire tax base.”                       According to the Committee, the

Secretary’s “yes/no” language suggests that the Act “limits all

alterations       to    the       tax    base”        and,    therefore,        violates        the

statutory     requirement           by    failing        to    “stat[e]        the     essential

change in the existing law should the measure receive a majority


3
     The   Committee  does   not  challenge   as  inaccurate or
misleading the Secretary’s statement that the Act “forbids
reductions to current K-12 and university funding levels.”



                                                 8
of votes cast in that particular manner.”                      A.R.S. § 19-125(D).

¶12            As   with      the    Secretary’s       “tax   increase”   language     to

which the Committee objects, the meaning of his “sales tax base”

language       is      fairly       debatable        and    potentially   subject      to

differing interpretations.                  But that does not mean the language

fails   to     comply      with      §     19-125(D).       The   Secretary’s    summary

begins by stating that the Act “permanently increases the state

sales tax by one cent per dollar.”                          In context, the language

that follows, regarding the “current state sales tax base” to

which the Act forbids reductions, could be read as referring to

the aforementioned “one cent per dollar” portion of the sales

tax base.4          Our task is not to determine whether that is the

only,     or    even     the        most    reasonable,       interpretation    of   the

language       used.       Rather,         because    the   Secretary’s   language     is

neither      false      nor     clearly       misleading,      and   because    it   “can

reasonably be regarded as an attempt to provide necessary and

appropriate information to the voting public,” we find that it

substantially complies with § 19-125(D).                          Howe, 192 Ariz. at


4
      In Tobin, although we found the issue “close,” the
Legislative Council was required to modify its description of
restrictions on adjusting the sales tax base.    Slip op. at 14
¶ 22.    But we found “particularly significant” that “the
Council’s analysis refer[red] to ‘sales tax’ as broadly meaning
‘the transaction privilege tax and the use tax,’ without
limiting it to the additional one percent sales tax that the
initiative would impose.” Id. slip op. at 13–14 ¶ 21. No such
misleading and fatal flaw appears in the Secretary’s language at
issue here.

                                                9
384 ¶ 22, 965 P.2d at 776.

                                        III.

¶13         We have no more appetite for enmeshing ourselves in

quarrels regarding the Secretary’s compliance with § 19-125(D)

than in disputes over the Council’s compliance with § 19-124(B).

As the superior court correctly observed regarding the areas of

contention here, however, the parties each raised “legitimate

points,”    and        neither    side’s      position     “is    irrational     or

frivolous.”    The court did not abuse its discretion or otherwise

err   in   finding      that     the   Secretary’s     language    substantially

complies with § 19-125(D).              See Ariz. R. P. Spec. Act. 3(c).

Accordingly,      we    accept    special     action     jurisdiction   but    deny

relief.



                                  ___________________________________
                                  A. John Pelander, Justice

CONCURRING:


___________________________________
Scott Bales, Vice Chief Justice


___________________________________
Robert M. Brutinel, Justice




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