Wilhelm v. Brewer

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,

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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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