Supreme Court explains reasons Prop 208 returned to ballot

Trial judges cannot keep voter-proposed initiatives off the ballot just because the description doesn’t mention every provision, the Arizona Supreme Court ruled Monday, a conclusion that should make it easier to put future initiatives to voters.

In an extensive decision, the justices rejected the idea that the legally required 100-word explanation on petition sheets must inform would-be signers of everything the proposed state law or constitutional amendment would do. As long as the verbiage does not provide “objectively false or misleading information” or obscures key provisions, it’s meets what’s legally required, wrote Justice Ann Scott Timmer for the unanimous court.

And if nothing else, Timmer said including every provision of a complex measure in that 100-word limit is just impractical. She said it’s sufficient for proponents to say in the description that those who want more information should read the actual text of the proposal.

Monday’s ruling is specifically explaining the court’s previously announced decision to give voters their say on a 3.5 percent surcharge on taxes of earnings above $250,000 for individuals and $500,000 for couples. Proposition 208 earmarks the proceeds mainly for K-12 education.

A trial judge had provided a litany of reasons he found the proposal legally unworthy to be on the Nov. 3 ballot.

More to the point, it sends a message to trial judges that they should not look for excuses to knock future proposals off the ballot as long as petition signers have reasonable notice of what the measure would do.

The unanimous decision is also a setback for initiative foes, particularly the Arizona Chamber of Commerce and Industry, which has routinely opposed efforts by voters to go around the decisions of the Republican-controlled Arizona Legislature in deciding what to enact and what issues to ignore. That, in turn, could ease the path for anticipated future ballot proposals including increasing Arizona’s unemployment benefits, providing for family leave and creation of more affordable housing, all of which could end up on the 2022 ballot.

Chamber spokesman Garrick Taylor, who believes initiatives are misused, noted some states require that a certain percentage of signatures to come from different areas of the state. Right now, circulators can get all the names they need only from one county.

Taylor also noted some states have a requirement for initiatives to be ratified at two successive elections to take effect. And he also cited a requirement for a 60 percent approval margin that exists elsewhere.

That latter hurdle, had it been in effect, would have resulted in the defeat of at least two proposals opposed by the Chamber: the 2010 initiative allowing the medical use of marijuana and the 2016 measure imposing a $12 minimum wage.

Garrick said both are merited, and not just because his organization traditionally opposes ballot measures. He said initiatives often are financed by out-of-state interests. And a constitutional amendment — itself proposed and approved by voters — bars lawmakers from tinkering with anything approval at the ballot.

Central to the ruling is the right of Arizonans to propose their own constitutional amendments and changes to state law by gathering sufficient signatures on petitions.

Maricopa County Superior Court Judge Christopher Coury had invalidated all the Prop 208 petitions saying that the 100-word description omitted five principal provisions. One was that the description listed which programs would benefit from the money raised by hiking taxes on high-wage earners, but not what percentage for each program.

Timmer said that is not a principal provision that has to be detailed for signers. And she said anyone who wanted that level of detail “could readily discover it by reading the initiative text appended to the petition.

The justices also rejected Coury’s claim that it was misleading and confusing to call the 3.5 percent hike on taxes of certain individuals a “surcharge.”

“Neither the definition of `surcharge’ nor other language in the description supports this finding,” Timmer wrote. “The term is commonly understood to mean an additional charge, not a temporary one.”

And the court also said Coury was wrong in quashing the initiative because it did not specifically point out that the effect on owners of certain kinds of small businesses who do not report corporate income but instead attribute any profits to their personal income taxes.

“What is taxable as income is dictated by state and federal law,” Timmer said.

The judge said the effect on small businesses is a point to be argued to voters, something the chamber is doing with its claim that half of the money raised would come from owners of small businesses who employ 58% of Arizonans.

The bottom line, said Timmer, is that nothing in the Arizona Constitution or state initiative laws throws as many hurdles in the path of petition circulators as foes of the process have suggested. And she specifically said that only the most important, consequential and primary features of the initiative have to be in that explanation.

“The 100-word description serves as the ‘elevator pitch’ that alerts prospective signatories to the measure’s key operative provisions, enabling them to decide in short order whether to sign the petition, refuse to do so, or make further inquiry about the measure,” she said.

Potentially more important, Timmer said that the description can, in fact, be a sales pitch as long as it’s not misleading.

“(The law) does not require the description to be impartial,” she said.

Finally, the justices told the trial judges to use common sense in deciding whether a description is misleading.

“Reasonable people can differ about the best way to describe a principal provision, but a court should not enmesh itself in such quarrels,” Timmer said. “Applying the reasonable person standard, the trial judge should ordinarily decide the sufficiency of a description without expert witness evidence.”

That last reference is to the fact that Coury did allow the attorneys for business foes of Prop 208 to bring in an economist to argue what is the definition of a “surcharge.”