ARIZONA COURT OF APPEALS

DIVISION ONE
MATTHEW G. MADONNA, an Arizona ) No. 1 CA-CV 17-0550
citizen; SANDRA L. BAHR, an Arizona )
citizen; ANIMAL DEFENSE LEAGUE OF ) Maricopa County Superior Court
ARIZONA, an Arizona non-profit corporation; ) No. CV2017-007407
FRIENDS OF ASBA, INC., an Arizona non- )
profit corporation; ARIZONA ADVOCACY )
NETWORK, an Arizona non-profit, )
corporation; PLANNED PARENTHOOD )
ADVOCATES OF ARIZONA, an Arizona )
non-profit corporation, )
)
Plaintiffs/Appellants, )
v. )
)
STATE OF ARIZONA, )
)
Defendant/Appellee, )
and )
)
STEVE YARBROUGH; and J.D. MESNARD, )
in their official capacities, respectively, as )
President of the Arizona Senate and Speaker )
of the Arizona House of Representatives, )
Intervenor Defendants/Appellees. ))

APPELLANTS COMBINED OPENING BRIEF AND APPENDIX

Roopali H. Desai (024295) Timothy M. Hogan (004567)

Keith Beauchamp (012434)
D. Andrew Gaona (028414)
COPPERSMITH BROCKELMAN PLC
2800 North Central Avenue, Suite 1200
Phoenix, Arizona 85004
Telephone: (602) 381-5490
rdesai@cblawyers.com
kbeauchamp@cblawyers.com
agaona@cblawyers.com
Attorneys for Plaintiffs/Appellants
ARIZONA CENTER FOR LAW
IN THE PUBLIC INTEREST
514 West Roosevelt Street
Phoenix, Arizona 85003
Telephone: (602) 258-8850
thogan@aclpi.org

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 TABLE OF CONTENTS
Introduction ................................................................................................................1

Statement of the Case.................................................................................................5

Statement of Facts ......................................................................................................6

Issues Presented for Review ....................................................................................20

Argument..................................................................................................................22
I. The Initiative Proponents Claims Are Ripe. ................................................22

A. The Initiative Proponents Claims Are Prudentially Ripe. .................24

1. The claims are prudentially ripe under Arizona law. ...............24

2. The claims are prudentially ripe under federal law. .................28

B. The Initiative Proponents Claims Are Ripe Because They
Have Already Suffered Injuries...........................................................32
C. The Ruling Sets Forth a Novel and Burdensome Ripeness
Standard. ..............................................................................................33

II. HB 2244 Invades the Province of the Judiciary and Violates the
Separation of Powers. ....................................................................................35

A. The Substantial Compliance Standard Is Based on the

Judiciarys Interpretation of the Arizona Constitution. ......................36
B. HB 2244 Fails Under Each of the San Carlos Factors. ......................39

1. The essential nature of the power exercised is

judicial. ......................................................................................39

2. The Legislatures degree of control in exercising the

power is non-existent. .............................................................41

3. The Legislatures stated objective in enacting HB

2244 evidences its unconstitutional motives. ...........................45

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 4. The practical consequences of HB 2244 render it
unconstitutional. ........................................................................47

C. HB 2244 Violates Article III. ..............................................................47

III. HB 2244 Violates Article IV Because It Unreasonably Restricts the

Exercise of the Initiative Power.....................................................................48
Notice Under Rule 21(a) ..........................................................................................50
Conclusion ...............................................................................................................50

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 TABLE OF CITATIONS

Page(s)

Cases
Arizona Assn of Providers for Persons with Disabilities v. State,
223 Ariz. 6 (App. 2009) ......................................................................................32
Arizona Early Childhood Dev. & Health Bd. v. Brewer,
221 Ariz. 467 (2009) ...........................................................................................46

Arizona Right to Life Political Action Comm. v. Bayless,

320 F.3d 1002 (9th Cir. 2003) ............................................................................33
Arnold v. Ariz. Dept of Health Servs.,
160 Ariz. 593 (1989) ...........................................................................................50

Baresma v. Susong,
156 Ariz. 309 (1988) ...........................................................................................45
Bennett v. Brownlow,
211 Ariz. 193 (2005) .....................................................................................28, 34
California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088 (9th Cir. 2003) ............................................................................33

Canyon del Rio Invrs, L.L.C. v. City of Flagstaff,

227 Ariz. 336 (App. 2011) ..................................................................................26
State v. Casey,
205 Ariz. 359 (2003) ...........................................................................................40
State ex rel. Davis v. Osborne,
14 Ariz. 185 (1912) .............................................................................................46

Dickerson v. United States,

530 U.S. 428 (2000) ..................................................................................2, 40, 41
Direct Sellers Assn v. McBrayer,
109 Ariz. 3 (1972) ...............................................................................................42

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Dobson v. State ex rel. Commn on Appellate Court Appointments,
233 Ariz. 119 (2013) .....................................................................................26, 27

In re Estate of Stewart,
230 Ariz. 480 (App. 2012) ......................................................................20, 24, 25

Florida State Conference of N.A.A.C.P. v. Browning,

522 F.3d 1153 (11th Cir. 2008) ..........................................................................32

State v. Forde,
233 Ariz. 543 (2014) ...........................................................................................44

Forty-Seventh Legislature v. Napolitano,

213 Ariz. 482 (2006) ...........................................................................2, 21, 35, 40

Glidden Co. v. Zdanok,

370 U.S. 530 (1962) ............................................................................................40
Goodyear Farms v. City of Avondale,
148 Ariz. 216 (1986) ...........................................................................................34
Governale v. Lieberman,
226 Ariz. 443 (App. 2011) ..................................................................................44

Initiative and Referendum Institute v. Walker,

450 F.3d 1082 (2006) (en banc) ...................................................................30, 31
Keggi v. Northbrook Prop. & Cas. Ins. Co.,
199 Ariz. 43 (App. 2000) ....................................................................................25
Kerby v. Griffin,
48 Ariz. 434 (1936) .......................................................................................37, 41

United States v. Klein,

80 U.S. 128 (1871) ..............................................................................................40

Kromko v. Superior Court,

168 Ariz. 51 (1991) .......................................................................................38, 49

State v. McMahon,
201 Ariz. 548 (App. 2002) ..................................................................................20

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Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ..............................................................................32

Meyer v. Grant,
486 U.S. 414 (1988) ........................................................................................3, 30

Miranda v. Arizona,
384 U.S. 436 (1966) ............................................................................................41

United States v. Morrison,

529 U.S. 598 (2000) ............................................................................................45

State v. Osborn,
16 Ariz. 247 (1914) ...............................................................................................1

Pedersen v. Bennett,
230 Ariz. 556 (2012) ...............................................................................27, 37, 38
Phelps Dodge Corp. v. Ariz. Elec. Power Co-op., Inc.,
207 Ariz. 95 (App. 2004) ....................................................................................23
Pool v. Superior Court,
139 Ariz. 98 (1984) .............................................................................................40

Rios v. Symington,
172 Ariz. 3 (1992) ...............................................................................................34
San Carlos Apache Tribe v. Superior Court,
193 Ariz. 195 (1999), HB 2244 ...................................................................passim
Sears v. Hull,
192 Ariz. 65 (1998) .............................................................................................34

Seisinger v. Siebel,
220 Ariz. 85 (2009) .................................................................................43, 44, 45

Sklar v. Town of Fountain Hills,

220 Ariz. 449 (App. 2008) ..................................................................................27

State Farm Mut. Auto. Ins. Co. v. Peaton,

168 Ariz. 184 (App. 1990) ..................................................................................35

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Town of Gilbert v. Maricopa Cty.,
213 Ariz. 241 (App. 2006) ..................................................................................22

Turley v. Bolin,
27 Ariz. App. 345 (1976) .............................................................................passim

In re U.S. Currency in Amount of $26,980.00,

199 Ariz. 291 (App. 2000) ..............................................................................7, 20

U.S. West Commcns, Inc. v. Ariz. Corp. Commn,

197 Ariz. 16 (App. 1999) ..............................................................................23, 25

W. Devcor, Inc. v. City of Scottsdale,

168 Ariz. 426 (1991) ...........................................................................................37

Whitman v. Moore,
59 Ariz. 211 (1942) .............................................................................1, 37, 38, 41
Wilhelm v. Brewer,
219 Ariz. 45 (2008) .............................................................................................39
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ................................................................28, 29, 30

Constititional Provisions and Statutes

Ariz. Const. art. III ............................................................................................passim

Ariz. Const. art. IV ............................................................................................passim

Ariz. Const. art. VI, 5(5) .......................................................................................43

Ariz. Const. art. XXI ................................................................................................47

A.R.S. 12-341........................................................................................................50
A.R.S. 12-1832......................................................................................................25

A.R.S. 12-1841(D) ..................................................................................................5

A.R.S. 12-2101(A)(1) .............................................................................................6

A.R.S. 19-102........................................................................................................42

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A.R.S. 19-112........................................................................................................19
A.R.S. 19-112(B) ..................................................................................................42

A.R.S. 19-112(D) ..................................................................................................42

House Bill 2244 ................................................................................................passim

Other Authorities
Ariz. R. Civ. App. P. Rule 21(a) ..............................................................................50

Ariz. R. Civ. P. Rule 12(b)(6) ....................................................................................5

Ariz. R. Civ. P. Rule 15(c) .........................................................................................5

Ariz. R. Civ. P. Rule 52(c) ...................................................................................6, 20

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 Introduction

1 The people of Arizona have [a]s great as the power of the Legislature

to legislate. State v. Osborn, 16 Ariz. 247, 250 (1914) (citing Article IV of the

Arizona Constitution (Article IV)). Given the fundamental nature of this power

and its importance to our States founders, the Arizona Supreme Court (Supreme

Court) has held that courts [must] liberally construe initiative requirements and do

not interfere with the peoples right to initiate laws unless the Constitution expressly

and explicitly makes any departure from initiative filing requirements fatal.

Whitman v. Moore, 59 Ariz. 211, 218 (1942). Put another way, Article IV requires

only substantial compliance with the constitutional and statutory requirements

governing the initiative process. This has been the constitutional rule announced by

the judiciary for decades, historically respected by the other branches of State

government, and which the Supreme Court has repeatedly declined to abandon.

2 But that constitutional harmony is no more. Admittedly agitated by the

extraordinary power of the people to legislate and bind[] the will of the

legislature, the Legislature took matters into its own hands to limit the right of

Arizona citizens to directly govern through the initiative process. Specifically, the

Legislature enacted House Bill 2244 (HB 2244), which (1) imposes a strict

compliance standard of review for initiative petitions, (2) overturns years of

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Supreme Court precedent, and (3) prescribes a new constitutional standard going

forward.

3 HB 2244 violates the separation of powers enshrined in Article III of

the Arizona Constitution (Article III) because it unreasonably limits the

judiciarys performance of its duties by superseding its interpretation of the Arizona

Constitution. [C]ourts bear ultimate responsibility for interpreting the Arizona

Constitution, Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 8

(2006), and thus the Legislature may not legislatively supersede [judicial] decisions

interpreting and applying the Constitution, Dickerson v. United States, 530 U.S.

428, 437 (2000). Here, HB 2244 supersedes judicial decisions interpreting the

Constitution and, therefore, it violates Article III. It also directly violates Article IV

by unduly restricting the peoples right to legislate by initiative, and by failing to

reasonably supplement the constitutional purpose of that power.

4 Plaintiffs/Appellants (collectively, the Initiative Proponents) are two

individuals and four non-profit organizations that have been involved in the initiative

process in the past, and that intend to utilize the initiative process in the next election

cycle and beyond. As the trial court correctly found, each established that HB 2244

is already causing them harm and will continue to cause them harm in the future if

the law remains on the books. This injury is most fundamentally in the form of the

loss of their constitutional right to have their initiative efforts subjected to the

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substantial compliance standard, but does not end there. Indeed, HB 2244 will

also impose additional costs on (or suppress altogether) the Initiative Proponents

exercise of their right to circulate petitions, which is rightfully characterized by the

U.S. Supreme Court as involving core political speech. Meyer v. Grant, 486 U.S.

414, 421 (1988). Based on the foregoing, the Initiative Proponents challenged the

constitutionality of HB 2244 and sought declaratory and injunctive relief to preserve

their constitutional rights.

5 Despite finding that the Initiative Proponents have suffered and will

continue to suffer various injuries, the trial court nonetheless concluded that their

claims were not ripe for judicial review because the strict compliance standard

imposed by HB 2244 has not been applied to any matter related to any pending

initiative measure. [ROA 82 at 17] The trial courts holding is erroneous for three

reasons.

6 First, Arizona law does not require an initiative proponent to suffer

constitutional and financial harm before seeking judicial relief, particularly where

the underlying constitutional challenge at issue is a straightforward question of law.

Indeed, the ripeness doctrine is not as rigid as the trial courts holding implies (nor

is it jurisdictional), and it does not require actual enforcement of a provision

affecting a partys rights; the mere threat of enforcement is sufficient, particularly

where (as here) parties seek declaratory relief. Further, in cases such as this that

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implicate First Amendment rights, pre-enforcement review of a statute is the norm

to avoid the chilling of speech.

7 Second, even if the ripeness doctrine requires more, the Initiative

Proponents satisfied the threshold requirement by establishing existing injury. The

indisputable fact supported by the record below is that the strict compliance

standard of review affects every aspect of the initiative process and has already

harmed the Initiative Proponents because, among other reasons, HB 2244 makes it

more expensive (and therefore more difficult) to commence an initiative effort.

8 Third, the trial court erred by pronouncing a novel (if not, unclear)

formulation of the ripeness doctrine one that is not rooted in established Arizona

law and that imposes additional, unnecessary burdens on plaintiffs seeking relief

against unconstitutional legislative action. Specifically, the trial court held that this

matter is not ripe for judicial review because [n]o plaintiff has a pending initiative

measure[,] HB 2244 is not yet law and has not been applied to any matter related

to any pending initiative measure[,] and [n]o party has been affected by HB 2244

in a concrete manner. Putting aside its lack of clarity, the trial courts requirements

that Initiative Proponents have a pending initiative and that HB 2244 be in effect and

be applied to a pending initiative measure is incorrect as a matter of law.

9 Because the judgment below cannot be squared with either governing

law or the trial courts own factual findings, it should be reversed. The Initiative

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Proponents claims are ripe, and this Court can and should decide in the first instance

that HB 2244 violates Article III and Article IV. The principles upon which our

State was founded demand no less.

Statement of the Case

10 This action was brought by Matthew Madonna, Sandra L. Bahr, the

Animal Defense League of Arizona (ADLA), Friends of ASBA, Inc. (FOA),

Arizona Advocacy Network (AzAN), and Planned Parenthood Advocates of

Arizona (PPAA), who sought a judgment against the State declaring HB 2244 as

unconstitutional and enjoining its enforcement or implementation. [Index of Record

on Appeal (ROA) 17-18] The President of the Arizona Senate and the Speaker of

the Arizona House of Representatives intervened pursuant to A.R.S. 12-1841(D).

[ROA 12] Collectively, the State Defendants opposed the Initiative Proponents

Application for Preliminary Injunction, and concurrently filed a motion to dismiss

pursuant to Rule 12(b)(6), Ariz. R. Civ. P., on several grounds. [ROA 32]

11 The parties stipulated to the consolidation of the hearing on the

Application for Preliminary Injunction with the trial on the merits, and the trial court

held a bench trial on July 12-13, 2017. [ROA 76-77] At trial, Appellants moved to

conform the pleadings to the evidence pursuant to Rule 15(c), Ariz. R. Civ. P., to

include a claim under Article IV of the Arizona Constitution, a request granted by

the trial court. [ROA 82 at 3 (APPX_084)] After hearing all of the evidence, the

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trial court took under advisement the State Defendants motion for judgment as a

matter of law pursuant to Rule 52(c), Ariz. R. Civ. P. [ROA 77]

12 On August 8, 2017, the trial court issued detailed findings of fact and

conclusions of law. [ROA 82 (the Ruling)] In its Ruling, the trial court accepted

in large part the testimony and evidence offered by the Initiative Proponents.

However, the trial court granted in part the State Defendants Motion to Dismiss and

Motion for Judgment as a Matter of Law, concluding that the matter was not ripe

for judicial review. [Id. at 17] Final judgment was entered on August 16, 2017

[ROA 92], and Appellants filed a timely notice of appeal on August 22, 2017 [ROA

93]. This Court has jurisdiction over this appeal pursuant to A.R.S. 12-2101(A)(1).

Statement of Facts

13 On April 14, 2017, Governor Doug Ducey signed into law HB 2244,

which in Sections 1 and 2, provides as follows:

19-102.01. Initiative petitions; standard of review

A. CONSTITUTIONAL AND STATUTORY REQUIREMENTS FOR
STATEWIDE INITIATIVE MEASURES MUST BE STRICTLY
CONSTRUED AND PERSONS USING THE INITIATIVE PROCESS
MUST STRICTLY COMPLY WITH THOSE CONSTITUTIONAL AND
STATUTORY REQUIREMENTS.

B. THE SECRETARY OF STATE SHALL MAKE AVAILABLE A

SAMPLE INITIATIVE PETITION THAT STRICTLY COMPLIES WITH
THE REQUIREMENTS OF SECTION 19-121. ANY COMMITTEE
THAT USES THE SAMPLE INITIATIVE PETITION PROVIDED BY
THE SECRETARY OF STATE SHALL BE PRESUMED TO HAVE
STRICTLY COMPLIED WITH THE REQUIREMENTS OF SECTION 19-
121.

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 19-119.02. Initiative, referendum and recall handbook; secretary of state
EACH ELECTION CYCLE THE SECRETARY OF STATE SHALL
PREPARE AND PUBLISH AN INITIATIVE, REFERENDUM AND
RECALL HANDBOOK THAT PROVIDES GUIDANCE ON
INTERPRETING, ADMINISTERING, APPLYING AND ENFORCING
THE LAWS RELATING TO INITIATIVE, REFERENDUM AND
RECALL. THE SECRETARY OF STATE SHALL MAKE THE
HANDBOOK AVAILABLE TO THE PUBLIC ON THE SECRETARY OF
STATE'S WEBSITE.

[ROA 18 (APPX_054] Section 3 of HB 2244 contains a series of legislative findings

purporting to justify the new requirements imposed by that bill, including:

The Voter Protection Act greatly impairs the ability of the

legislature, representing the will of the people, to implement
changes to or corrective measures for voter-approved
initiatives.

The initiative process has evolved into an extraordinary power,

effectively holding up and binding the will of the legislature and
future majorities of the people by preventing the enactment of
new laws and amendments that may well represent the wishes of
the current majority of the people.

Strict compliance with the constitutional and statutory

requirements for the initiative process and in the application and
enforcement of those requirements provides the surest method
for safeguarding the integrity and accuracy of the initiative
process, while still recognizing the historical importance of
initiatives in this state.

[Id. (case citations omitted)] This case turns on HB 2244, and the effect it has (and

will continue to have) on the Initiative Proponents.

14 The trial court made a series of detailed factual findings with respect to

the Initiative Proponents, which this Court accept[s] . . . unless they are clearly

erroneous. In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 295 9

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(App. 2000). We do not repeat them all below, but endeavor to summarize those

most relevant by witness.

Matthew Madonna

15 Mr. Madonna is the former President and CEO of the American Cancer

Society Southwest Division, Inc., a role he fulfilled for approximately 14 years

before retiring in 2003. [Ruling at 4 4 (APPX_085); ROA 68 at 4:9-22

(APPX_071)] Over the past 24 years, Mr. Madonna has been involved in at least

three statewide initiatives, and numerous county and municipal initiatives. [Ruling

at 4 4 (APPX_085); ROA 68 at 5:21-8:24 (APPX_072-075)] At present, he is

seriously contemplating being involved with an initiative drive to place a measure

on the November 2018 ballot, and believes that HB 2244 will make it more difficult

to qualify that measure for the ballot. [Ruling at 4 4 (APPX_085); ROA 68 at

14:12-15:4 (APPX_076-077)] Mr. Madonna testified that as a direct result of HB

2244, there will be significant additional expenses in the gathering of signatures

and the recruitment and the training of volunteers, and the determination of, whether

in fact, volunteers can legitimately . . . be used in this process. [Ruling at 4 4

(APPX_085); ROA 68 at 40:3-41:7, 44:2-15, 46:5-13 (APPX_078-080)]

Sandra L. Bahr

16 Ms. Bahr is the Chapter Director for the Grand Canyon Chapter of the

Sierra Club, a nationwide nonprofit organization dedicated to protection of the

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environment. [Ruling at 6 6 (APPX_087); Tr. Day 1 (PM) at 21:23-4, 22:2-5

(APPX_115-116)] She has been actively involved with both statewide initiatives

and referendum efforts since the early 1990s, including an initiative to ban steel jaw

traps on public lands, a growth management initiative that appeared on the ballot in

2000, the Clean Elections initiative in 1998, a state trust land measure for the 2008

ballot, and other initiative efforts including the establishment of the Independent

Redistricting Commission, and a ban on gestation crates. [Ruling at 6 6

(APPX_087); Tr. Day 1 (PM) at 23:17-25:10 (APPX_117-119)] Ms. Bahrs

involvement with each of these initiative efforts varied, but is overall wide-ranging.

[Ruling at 6 6 (APPX_087)] Specifically, she has: (1) interacted with volunteers

and helped to train them on collecting signatures and notarizing petitions, (2) been

involved in developing language for the initiative and the collection of signatures,

(3) assisted with contracting for paid petition circulators, and (4) gathered signatures

herself for initiative petitions. [Ruling at 6 6 (APPX_087); Tr. Day 1 (PM) at 25:3-

26:3 (APPX_119-120)] Ms. Bahr is currently involved in two initiative efforts that

may culminate in measures being placed on the November 2018 ballot: one that

would limit trophy hunting, and another related to voting rights. [Ruling at 6 6

(APPX_087); Tr. Day 1 (PM) at 32:15 (APPX_123)] For one of these initiatives,

she is part of a group that convened to strategize, plan, budget, draft language,

{00317695.5 } 9
circulate petitions, gather signatures, and campaign for voter approval. [Ruling at 6

6 (APPX_087)]

17 Based on her years of experience with the initiative process, Ms. Bahr

is familiar with the distinction between substantial compliance and strict

compliance, and testified that HB 2244 will make it more difficult for Arizona

citizens to exercise their right of initiative under the Arizona Constitution. [Ruling

at 6 6 (APPX_087); Tr. Day 1 (PM) at 27:22-25 (APPX_121)] Most

fundamentally, HB 2244s heightened standard of review will materially increase

the likelihood that initiative efforts are not successful, but it will also make the

initiative process more time consuming and expensive in several ways. [Ruling at 6

6 (APPX_087); Tr. Day 1 (PM) at 30:19-24 (APPX_122), 33:19-22 (APPX_124)]

First, initiative proponents will need to gather more signatures in order to

ensure that there are a sufficient number to qualify for the ballot, and will

increase the cushion (i.e., signatures above the constitutional minimum)

from 30% to 50%. [Ruling at 7 6 (APPX_088); Tr. Day 1 (PM) at 34

(APPX_125), 37-38 (APPX_127-128)] Because the vast majority of

signatures will be gathered by paid circulators, that also significantly

increases the cost of qualifying an initiative measure for the ballot. [Id.]

Second, a strict compliance standard requires more time in terms of

training petition circulators (both paid and volunteer) and reviewing

{00317695.5 } 10
 initiative petitions to check validity rates. [Ruling at 7-8 6 (APPX_088-

089); Tr. Day 1 (PM) at 40-41 (APPX_130-131)]

Third, because of the diminished likelihood of success under the strict

compliance standard, it will be more difficult to secure funds from

foundations, donors and other contributors to support the effort. The

increased amount of funds needed, coupled with the difficulty in raising

funds due to the uncertainty surrounding the application of HB 2244, will

make it more difficult for nonprofit organizations like the Sierra Club to

secure the funding necessary to sustain an initiative effort. [Ruling at 8 6

(APPX_089); Tr. Day 1 (PM) at 42 (APPX_132)]

ADLA

18 ADLA is an Arizona non-profit corporation, the mission of which is to

protect Arizonas animals. [Ruling at 5 5 (APPX_086); ROA 67 at 10:5-12

(APPX_062)] One of its primary goals is to protect the right of Arizonas citizens

to legislate by initiative because the initiative has been one of the most important

tools for animal protection in the State. [Id.] It has been involved in several

statewide initiative campaigns (most recently the humane farming initiative that was

on the ballot in 2006), and is in serious discussions with potential partners about an

initiative drive that would seek to place a measure on the November 2018 ballot.

[Ruling at 5 5 (APPX_086); ROA 67 at 6-8 (APPX_059-061)] At least one

{00317695.5 } 11
campaign consultant is already involved in those discussions. [Id.] Based on

ADLAs past experience with statewide initiative campaigns, it will be harmed by

HB 2244 in a number of ways. Specifically, ADLA will be forced to spend

additional time preparing petitions, obtain additional legal advice up front, devote

more resources to reviewing the petition form itself, and gather additional petition

signatures in order to ensure that its initiative makes the ballot. [Ruling at 5 5

(APPX_086); ROA 67 at 13:2-14:8 (APPX_063-064), 17:5-13 (APPX_065), 20:20-

21:5 (APPX_066-067), 33:2-12 (APPX_068)]

Friends of ASBA, Inc.

19 FOA is a nonprofit organization committed to filling the need for

trusted information on state-level K-12 education issues. It provides access to

information and resources on high-priority, high-impact policy issues related to

education and the success of public school students in Arizona. [Ruling at 8 7

(APPX_089); Tr. Day 1 (PM) at 64:20-65:10 (APPX_133-134)] FOA has been

involved in a statewide initiative in the past; specifically, Proposition 204 in 2012.

FOA contributed funds to the committee formed to run that initiative, being directly

involved in the committees decision-making structure. [Ruling at 8 7

(APPX_089); Tr. Day 1 (PM) at 66:2-22 (APPX_135)] At present, FOA is seriously

contemplating sponsoring a statewide initiative related to education funding (the

{00317695.5 } 12
FOA Initiative) that would appear on the ballot in November 2018. [Ruling at 8

7 (APPX_089); Tr. Day 1 (PM) at 67:4-6 (APPX_136)]

20 Days after HB 2244 went into effect, representatives of FOA met with

Chuck Coughlin, Paul Bentz, and Patrick Cunningham of HighGround Public

Affairs Consultants (HighGround) to discuss potential electoral strategies,

including the FOA Initiative. [Ruling at 8 7 (APPX_089); Tr. Day 1 (PM) at 68-

69 (APPX_137-138)] Based on the meeting with HighGround and advice it has

received from others with experience and expertise with respect to initiatives and

referenda, FOA understands that successfully running the FOA Initiative will be

more expensive as a result of HB 2244. It also wishes to ensure that its contemplated

initiative is evaluated under the substantial compliance standard to maximize its

chances at qualifying that measure for the ballot. [Ruling at 8 7 (APPX_089)]

AzAN

21 AzAN is a non-profit, non-partisan organization devoted to defending

and deepening Arizonas commitment to democracy. [Ruling at 8-9 8

(APPX_089-090); Tr. Day 2 at 113-114 (APPX_163-164)] It believes the

cornerstones of such a democracy are meaningful voting rights and access to the

ballot, political decisions driven by voters instead of money, and a fair and

independent judiciary. [Id.] AzAN has been involved in initiative efforts in Arizona

in the past, most recently, a coalition effort chaired by AzANs former executive

{00317695.5 } 13
director known as the Arizona Clean and Accountable Elections Act. [Ruling at 9

8 (APPX_090); Tr. Day 2 at 114:7-115:3 (APPX_164-165)] AzAN carefully

tracked HB 2244 as it made its way through the Legislature, and its Executive

Director, Joel Edman, testified in the Senate Appropriations Committee against the

passage of HB 2244. [Ruling at 9 8 (APPX_090); Tr. Day 2 at 117:9-12

(APPX_166)]

22 At present, AzAN is working with several other organizations to place

a statewide initiative related to direct democracy/voting rights on the ballot in

November 2018 (the AzAN Initiative). [Ruling at 9 8 (APPX_090); Tr. Day 2

at 118 (APPX_167)] AzAN would be involved in leading and organizing the efforts

to qualify the AzAN Initiative for the ballot, and joined this litigation as a Plaintiff

in order to protect its constitutional right to have the AzAN Initiative evaluated under

the substantial compliance standard. [Ruling at 9 8 (APPX_090)] As the

proponent of the AzAN Initiative, it would be AzANs goal to comply with relevant

statutory and constitutional requirements at all times in the process of gaining access

to the ballot. But if the standard of review is strict compliance, there is a higher

likelihood that inadvertent errors of this nature will result in the disqualification of

petition sheets or individual signatures. [Ruling at 9 8 (APPX_090); Tr. Day 2 at

135:10-23 (APPX_174)]

{00317695.5 } 14
23 At the time of trial, AzAN was already being injured by HB 2244

because the looming prospect of the effective date had an adverse effect on its

fundraising efforts. [Ruling at 9 8 (APPX_090); Tr. Day 2 at 123:16-124:4

(APPX_170-171)] More specifically, the heightened standard of review makes it

more difficult to raise funds and overcome the concerns of potential donors and

partners who are aware of the difficulties associated with strict compliance.

[Ruling at 9 8 (APPX_090)] Beyond that, AzAN will incur additional costs as a

direct result of HB 2244, a conclusion based on: (1) AzANs independent research

into the risks associated with proceeding under a strict compliance standard, and

(2) conversations AzANs representatives have had with others who have worked

on ballot measure campaigns, elections attorneys, and national organizations that

have worked in various states and under various legal regimes. [Ruling at 10 8

(APPX_091); Tr. Day 2 at 119:1-120:5 (APPX_168-169), 130:13-22 (APPX_173)]

Beyond that, and with respect to petition signatures, AzAN already had a

conversation with Andrew Chavez of AZ Petition Partners, LLC (a prominent

signature gathering firm discussed further below), who informed AzAN about the

increased costs associated with HB 2244. [Ruling at 10 8 (APPX_091); Tr. Day 2

at 119:6-8 (APPX_168)]

24 In addition, if AzAN and its partners are unable to secure the additional

funding needed to ensure that the AzAN Initiative qualifies for the ballot under the

{00317695.5 } 15
strict compliance standard, AzAN may have to decide that it cannot be involved

anymore, and thus HB 2244 will have a chilling effect on its exercise of the

constitutional right to legislate by initiative. [Id.] As Mr. Edman testified, this

would be wholly inconsistent with AzANs mission. [Tr. Day 2 at 124:13-125:4

(APPX_171-172)]

Andrew Chavez

25 The concerns regarding cost expressed by the Initiative Proponents

were confirmed by the testimony of Andrew Chavez, the CEO and owner of AZ

Petition Partners (Petition Partners), which has been providing petition collection

services in Arizona for 17 years. [Ruling at 11 17 (APPX_092); Tr. Day 1 (AM)

at 66:6-11 (APPX_100)] Over the last 10 years, Petition Partners has collected

signatures for approximately 19 statewide initiative measures and approximately 10

referenda matters (both local and statewide). [Ruling at 11 17 (APPX_092);

Tr. Day 1 (AM) at 66:24-67:1 (APPX_100-101), 70:24-71:5 (APPX_103-104),

71:9-12 (APPX_104); Trial Exhibit (Tr. Ex.) 10] Mr. Chavez has testified more

than two dozen times in litigation concerning the validity of Arizona ballot

measures, and has significant practical experience with the Courts application of

the strict compliance and substantial compliance standards. [Ruling at 11 17

(APPX_092); Tr. Day 1 (AM) at 68 (APPX_102), 72:19-24 (APPX_105)]

{00317695.5 } 16
26 As Mr. Chavez noted, petition gathering costs are higher for referenda

because the baseline cushion for the number of signatures is 20-30% higher than

what is needed for an initiative matter due to application of the strict compliance

standard. [Ruling at 12 17 (APPX_093); Tr. Day 1 (AM) at 72-74 (APPX_105-

107)] The heightened standard also increases the costs for legal compliance (apart

from litigation expenses), and costs attributable to the random sampling and quality

control measures that are employed during the petition collection process. [Ruling

at 12 17 (APPX_093); Tr. Day 1 (AM) at 75-76 (APPX_108-109)] These

increased costs are not abstract; indeed, Mr. Chavez was asked by a client for which

he ran a 2016 statewide initiative to estimate the impact that HB 2244 would have

for running a similar statewide initiative. [Ruling at 12 17 (APPX_093); Tr. Day 1

(AM) at 80-82 (APPX_110-112)] He concluded that the cost of running a similar

initiative for that client would increase from $700,000 in 2016 to $1.2 million in

2018 or 2020, due to the impact of HB 2244 and HB 2404 (which relates to petition

circulator regulation). [Id.] But HB 2244, standing alone, will raise petition

gathering expenses (not including legal expenses) by approximately 25%-30%. [Id.]

J. Charles Coughlin

27 That HB 2244 will cause the Initiative Proponents to incur additional

costs was also confirmed by J. Charles Coughlin, the founder and president of

HighGround who has over 30 years of experience in Arizona public affairs,

{00317695.5 } 17
lobbying, politics and strategic messaging. [Ruling at 13 19 (APPX_094)] Mr.

Coughlins experience leaves no doubt in his mind that opponents of initiative efforts

will use HB 2244s heightened standard to prevent initiative measures that have

significant public support from gaining access to the ballot. [Ruling at 13 19

(APPX_094)] In April 2017, Mr. Coughlin met with representatives from FOA who

asked for advice about the impact that HB 2244 would have on attempting to run a

statewide initiative measure. [Ruling at 13-14 19 (APPX_094-095); Tr. Day 1

(PM) at 90-91 (APPX_140-141)] Based on his knowledge, experience and

expertise, Mr. Coughlin advised the group that upon taking effect, HB 2244 would

require FOA to increase the number of signatures collected (and the associated

expense) by approximately 25% to 30%, and would further increase the legal budget

by as much as 50%. [Id.]

Eric Spencer

28 Eric Spencer is the State Elections Director for the Arizona Secretary

of State, and testified that HB 2244s imposition of a strict compliance standard

will have no effect on the tasks carried out by the Secretary of States office in the

context of a statewide initiative. [Tr. Day 1 (PM) at 130-134 (APPX_143-147)] But

notwithstanding the Secretary of States review, Mr. Spencer acknowledged that the

Initiative Proponents could be involved in litigation brought by their opponents

based on, among other things: (a) the legal sufficiency of a statement of organization

{00317695.5 } 18
filed by an initiative proponent [Tr. Day 2 at 19:20-23 (APPX_150)], (b) whether

the title and text of the proposed measure that is submitted to the Secretary of States

office is legally sufficient [id. at 24:2-25:15 (APPX_151-152)], (c) the size of the

top margin on circulated petition sheets [id. at 25:19-28:4], (d) the sufficiency of the

title and text attached to circulated petition sheets [id. at 29:12-31:3 (APPX_153-

154)], (e) the location of the petition serial number on circulated petition sheets [id.

at 31:7-32:16 (APPX_154-155)], (f) the sufficiency of petition circulator

registrations [id. at 32:19-34:22 (APPX_155-157)], (g) the legality of the Secretary

of States decision to strike (or not strike) petition signatures for omitting

information required by A.R.S. 19-112 [id. at 36:22-37:4 (APPX_158-159)], and

(h) the legal sufficiency of petition circulator affidavits found on circulated petition

sheets [id. at 37:5-40:10 (APPX_159-162)]. And with respect to nearly all of these

scenarios, Mr. Spencer agreed that under current law, the standard of review would

be substantial compliance, and that under HB 2244, the standard of review would

be strict compliance.

Trial Courts Ruling

29 After holding a two-day trial on the merits, the trial court issued a

Ruling, which held as follows:

The Court finds this matter is not ripe for judicial review. No plaintiff has a
pending initiative measure. HB 2244 is not yet law and has not been applied
to any matter related to any pending initiative measure. No party has been
affected by HB 2244 in a concrete manner. Plaintiffs believe HB 2244 will

{00317695.5 } 19
 affect their future initiative efforts but this Court finds that expectation is not
sufficient to make this matter ripe for judicial review of the constitutionality
of HB 2244.

For the reasons stated herein,

IT IS ORDERED granting the defendants Motion to Dismiss for Failure to

State a Claim, granting the motion for judgment as a matter of law under Rule
52(c), Ariz.R.Civ.P., and denying the relief requested in the First Amended
Complaint.

[ROA 82 at 17]

Issues Presented for Review

30 This appeal raises three separate questions of law that this Court

reviews de novo.1 See In re Estate of Stewart, 230 Ariz. 480, 483-84 11 (App.

2012) (ripeness); State v. McMahon, 201 Ariz. 548, 550 5 (App. 2002)

(constitutionality of a statute). Specifically:

Ripeness is a prudential doctrine that does not preclude a court from

hearing and adjudicating a pre-enforcement action to enjoin the

enforcement of an unconstitutional statute that has (or will) adversely

affect a plaintiffs rights. Did the trial court err by dismissing the Initiative

Proponents challenge to the constitutionality of HB 2244 on ripeness

grounds where each suffered the loss of a constitutional right upon the

1
Again, this Court defers to the trial courts factual findings unless they are
clearly erroneous. In re U.S. Currency in Amount of $26,980.00, 199 Ariz. at 295
9.

{00317695.5 } 20
 effective date of that legislation, and further will suffer financial and other

injury in the immediate future?

The Supreme Court bear[s] ultimate responsibility for interpreting the

Arizona Constitution, Forty-Seventh Legislature, 213 Ariz. at 485 8, and

for decades, has interpreted that foundational document to require only

substantial compliance with constitutional and statutory requirements

for citizen initiatives. Did the Legislature violate the separation of powers

by purporting to overrule constitutional decisions of the Supreme Court

and prescribing a heightened standard of review for citizen initiatives

going forward?

Under Article IV, the Legislature cannot regulate the initiative process if

such regulation (1) unreasonably hinder[s] or restrict[s] that fundamental

constitutional right, or (2) does not reasonably supplement the

constitutional purpose behind Article IV. Turley v. Bolin, 27 Ariz. App.

345, 348 (1976). Does HB 2244 violate Article IV by placing significant

burdens on the Initiative Proponents and removing their constitutional

right to have their efforts evaluated under the substantial compliance

standard?

{00317695.5 } 21
 Argument

31 Since statehood, the people have enjoyed a fundamental right to

legislate by initiative, one they have not hesitated to exercise time and time again.

Disturbed by this reality, the Legislature enacted HB 2224 to impose a strict

compliance standard on the people generally, and the Initiative Proponents

specifically, knowing well that this heightened standard would make it more difficult

for initiatives to qualify for the ballot. But HB 2244 violates Article III by invading

the exclusive province of the judiciary, its very existence has already caused injury

to the Initiative Proponents, and its effects will continue to injure the Initiative

Proponents. As a consequence and as detailed below the trial court erred in

dismissing their claims on the ground that they were not ripe, and further by not

reaching the merits of those claims. The Judgment below should therefore be

reversed.

I. THE INITIATIVE PROPONENTS CLAIMS ARE RIPE.

32 The Initiative Proponents claims challenging the constitutionality of

HB 2244 were (and are) ripe for adjudication, and the trial courts conclusion to the

contrary was in error.

33 The ripeness doctrine is intended to prevent[] a court from rendering

a premature judgment or opinion on a situation that may never occur, Town of

Gilbert v. Maricopa Cty., 213 Ariz. 241, 244-45 8 (App. 2006) (citation omitted),

{00317695.5 } 22
but its contours have not been extensively-developed by Arizona courts. And so, as

they often do, our courts look to federal law for guidance. See, e.g., Phelps Dodge

Corp. v. Ariz. Elec. Power Co-op., Inc., 207 Ariz. 95, 118 94 (App. 2004); U.S.

West Commcns, Inc. v. Ariz. Corp. Commn (U.S. West), 197 Ariz. 16, 20 (App.

1999). No matter the lens through which the Initiative Proponents claims are

viewed, the constitutional claims of statewide importance at issue are ripe for

adjudication.

34 Specifically, the Ruling is erroneous because not only did HB 2244

cause irreparable constitutional injury to each of the Initiative Proponents, but as the

trial court correctly held, the mere threat of its enforcement had actually caused

injury to at least some of them at the time of trial. And beyond that, the trial courts

factual findings to which this Court must give deference make plain that HB

2244 will, in fact, harm the Initiative Proponents going forward, both financially and

by its threat to the exercise of their core political speech; that is, the circulation of

initiative petitions.

35 Finally, the Ruling is in error because it sets forth a ripeness standard

that requires plus factors, which are not entirely clear but require further action

such as the filing of an initiative petition or actual application of an unconstitutional

law. This heightened requirement is not rooted in Arizona law and runs afoul of the

Initiative Proponents right to have HB 2244 declared unconstitutional on its face.

{00317695.5 } 23
 A. The Initiative Proponents Claims Are Prudentially Ripe.
36 The trial court erred by concluding that the Initiative Proponents

claims were not ripe either because none of the Initiative Proponents had applied

for a petition serial number or because there was no petition challenge invoking HB

2244. 2 Existing Arizona law, as well as analogous principles of federal law, make

clear that the mere threat of enforcement of a statute or other provision that

violates a parties rights is sufficient.

1. The claims are prudentially ripe under Arizona law.

37 Arizonas flexible view of the ripeness doctrine manifested itself most

notably in Stewart, where a party contended that that a dispute over the validity of

an in terrorem clause in a will was unripe because it had not actually been enforced.

230 Ariz. at 484 12. This Court rejected this argument, noting that the clauses

very existence served to deter beneficiaries from cooperating in ongoing litigation,

and that [i]t was not necessary to enforce the clauses to make their validity ripe for

adjudication; the threat of enforcement was sufficient. Id.

38 Stewart is no outlier. More than a decade prior, this Court also rejected

the rigid view of the ripeness doctrine urged by the State Defendants and adopted by

2
Initially, the Initiative Proponents note that under the Ruling, it is unclear
when the trial court believed that a claim to challenge the constitutionality of HB
2244 would ripen. As discussed in more detail in Section I.C, infra, this is further
reason to reverse the trial court.

{00317695.5 } 24
the trial court. U.S. West, 197 Ariz. at 19 6. U.S. West was a case involving a

decision of the Arizona Corporation Commission that affected what a

telecommunications provider viewed as an exclusive contract with the State of

Arizona. There, the court rejected the Commissions argument that the providers

claim was not ripe because it had not requested rate relief, in part because the pure

legal issue would be the same in either case, and would cause the provider to

needlessly incur expenses and consume time. Id. at 20 15.

39 Stewart and U.S. West demonstrate this Courts common-sense

application of Arizonas non-jurisdictional ripeness doctrine. More importantly,

those cases are consistent with the Uniform Declaratory Judgments Act (UDJA),

which allows any person . . . whose rights, status or other legal relations are affected

by a statute to seek relief therefrom. A.R.S. 12-1832. The declaratory judgments

act is interpreted liberally, and a justiciable controversy exists if there is an

assertion of a right, status, or legal relation in which the plaintiff has a definite

interest and a denial of it by the opposing party. Keggi v. Northbrook Prop. &

Cas. Ins. Co., 199 Ariz. 43, 45 10 (App. 2000). The trial courts Ruling is entirely

inconsistent with these principles. As this Court has made clear, [w]hen a

justiciable controversy exists here, a dispute over the constitutionality of HB 2244

and the effect it has already had and will in the future have on the Initiative

Proponents efforts the Act allows adjudication of rights before the occurrence of

{00317695.5 } 25
a breach or injury. Canyon del Rio Invrs, L.L.C. v. City of Flagstaff, 227 Ariz.

336, 341 18 (App. 2011). The Initiative Proponents pre-enforcement action was

thus entirely proper, and the trial courts holding to the contrary improperly turns the

liberal construction of the UDJA on its head. There is not, as the trial courts

Ruling implies, an exception to the UDJA for parties affected by statutes that touch

on the initiative process. Like all others, they can seek relief before the occurrence

of . . . injury.

40 Lastly, there is no support in Arizona law for the trial courts apparent

suggestion (and the State Defendants vigorous argument) that a party must wait

until it is directly confronted with what it believes to be an unconstitutional statute

before challenging it. In Dobson v. State ex rel. Commission on Appellate Court

Appointments, 233 Ariz. 119 (2013), for example, several members of the

Commission on Appellate Court Appointments brought an original special action in

the Supreme Court challenging a statute that they claimed would compel them to

execute directives they believe run afoul of their constitutional obligations as

Commission members. Id. at 122 11. It did not matter that those Commission

members had not yet been confronted with a situation that would require them to

violate their constitutional obligations (that is, the threat was enough), and the court

proceeded to both find that they had standing, and to sustain their facial

constitutional challenge to the statute at issue. Id. at 122-23 11-12; 124 20.

{00317695.5 } 26
41 Consistent with Dobson, the trial courts suggestion in this regard is

both wrong and dangerous. The notion that the standard of review applied to petition

circulation efforts is not relevant to an initiative proponent until her petitions are

filed and a challenge brought ignores the indisputable fact that the governing

standard can affect every aspect of the initiative process. See, e.g., Pederson, 230

Ariz. at 559 14 (applying substantial compliance to the title and text submitted

by a committee along with its application for a serial number); Sklar v. Town of

Fountain Hills, 220 Ariz. 449 (App. 2008) (applying strict compliance standard to

the 100-word description, which must be on the application for serial number and

petition forms). Indeed, the prospect of trying to pass an initiative under the strict

compliance regime is so daunting that proponents may be unable to obtain funds and

other support in the first place. Knowing whether she will have to satisfy the lower

substantial compliance standard is critical to an initiative proponent, and as the trial

court found, factors heavily into fundraising and budgeting. And it is particularly

important when gauging the likelihood (and likelihood of success) of litigation,

which can be brought on any number of theories [See APPX_150-162], and which

is more likely to result in disqualification if the governing standard of review is

strict compliance

42 In sum, a justiciable controversy exists between the Initiative

Proponents and the State Defendants over the constitutionality of HB 2244 and the

{00317695.5 } 27
effects it will have on their contemplated initiative efforts, and the Initiative

Proponents need not wait until they suffer all possible injuries before seeking judicial

relief. The trial court thus misapplied existing principles of Arizona law in

dismissing their claims on ripeness grounds, and should be reversed.

2. The claims are prudentially ripe under federal law.

43 As a matter of federal law, the ripeness doctrine has two distinct bases:

one that is jurisdictional (arising out of Article IIIs Case or Controversy

requirement), and the other sounding in mere prudential reasons for refusing to

exercise jurisdiction. Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010)

(citation omitted). Because the Arizona Constitution does not require a party to

assert an actual case or controversy, Bennett v. Brownlow, 211 Ariz. 193, 195 14

(2005), ripeness like standing is not jurisdictional.

44 In Arizona, therefore, the ripeness requirement is more accurately

described as prudential ripeness, an inquiry that turns on the fitness of the issues

for judicial decision and the hardship to the parties of withholding court

consideration. Wolfson, 616 F.3d at 1060 (citation omitted). The Initiative

Proponents easily satisfy both of these requirements.

45 First, the Initiative Proponents constitutional claims are fit for judicial

decision. A claim meets this requirement if the issues raised are primarily legal,

do not require further factual development, and the challenged action is final. Id.

{00317695.5 } 28
(citing US West Commcns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir.

1999)). That is precisely the case with the constitutional challenges the Initiative

Proponents raise under Article III and Article IV; that is, they are purely legal

questions that require no further factual development. Wolfson, 616 F.3d 1060

(finding that facial challenges to judicial canons under the First Amendment were fit

for decision).

46 Second, based on the trial courts extensive factual findings, the

Initiative Proponents will suffer significant hardship if their constitutional claims are

not resolved in this litigation. To meet the hardship requirement, a litigant must

show that withholding review would result in direct and immediate hardship and

would entail more than possible financial loss. Id. (citation omitted). A proper

evaluation of hardship requires the Court to consider whether the regulation

requires an immediate and significant change in plaintiffs conduct of their affairs

with serious penalties attached to noncompliance. Id. (citation omitted).

47 Here, the trial court made factual findings that the Initiative Proponents

would suffer injury if forced to proceed under a cloud of legal uncertainty with

respect to whether HB 2244 will (or will not) ultimately apply to their contemplated

initiative efforts. Though some of that harm is financial in the form of significant

increased expenses, the more fundamental harm is the impediment that HB 2244

creates to their exercise of their right to legislate by initiative. Because the

{00317695.5 } 29
circulation of initiative petitions is a form of core political speech, Meyer, 486

U.S. at 421, that impediment implicates First Amendment rights. The Supreme

Court has repeatedly pointed out the necessity of allowing pre-enforcement

challenges to avoid the chilling of speech. Wolfson, 616 F.3d at 1059-60. Put

another way, courts apply the principle that one need not await consummation of

threatened injury before challenging a statute restricting speech, to guard the risk

that protected conduct will be deterred. Id. at 1058 (citation omitted).

48 In Wolfson, the court rejected an argument that bears a striking

resemblance to that adopted by the trial court in this case: that a judicial candidate

seeking relief against judicial canons that he believed violated his First Amendment

rights should be adjudicated in the future, if and when he is again a candidate for

judicial office and subject to enforcement proceedings. Id. at 1060. This, the court

explained, ask[ed] too much because the candidate had alleged self-censorship of

his speech both in the past and in the future. Id. at 1060-61.

49 Even more on point is the Tenth Circuits decision in Initiative and

Referendum Institute v. Walker, 450 F.3d 1082 (2006) (en banc), a case where

wildlife and advocacy groups challenged, under the First Amendment, a state

constitutional provision imposing a supermajority requirement for the passage of

wildlife-related initiatives. The plaintiffs standing and the ripeness of their claims

(under the more stringent requirements imposed by Article III of the U.S.

{00317695.5 } 30
Constitution) were challenged on similar grounds as here; specifically, that they had

not suffered injury because [t]here must be a currently pending initiative proposal

involving wildlife management issues, or at least the Plaintiffs must have a specific

or immediate intent to bring any such initiative. Id. at 1089. If not, the defendants

argued, it is too speculative and conjectural to evaluate the fitness of the claims for

judicial resolution. Id.

50 The Tenth Circuit, en banc, squarely rejected that argument, holding

that plaintiffs had standing. It also held that:

The ripeness challenge fails here because the Plaintiffs alleged injury
is already occurring. According to the Complaint, the supermajority
requirement for wildlife initiatives, by its very existence, chills the
exercise of the Plaintiffs First Amendment rights. The injury is not the
defeat of a particular initiative, or even the greater difficulty faced by
groups like the Plaintiffs who decide to mount an initiative campaign,
but the dampening effect of the supermajority requirement on
advocacy of a wildlife initiative. Assuming for the moment that the
Plaintiffs legal theory is correct, their alleged injury does not depend
on any uncertain, contingent future events, and the courts would gain
nothing by allowing the issues in the case to develop further.
Accordingly, the controversy is ripe for adjudication.

Id. at 1098 (emphasis added). The same holds true with the Initiative Proponents,

who should not have to incur significant expense before having their claims

adjudicated.

51 The Initiative Proponents claims are prudentially ripe, as there is no

good reason to delay the adjudication of their constitutional claims, particularly

{00317695.5 } 31
because those claims affect the peoples right to legislate by initiative on the brink

of an election year that is sure to feature many proposed initiatives.

B. The Initiative Proponents Claims Are Ripe Because They Have

Already Suffered Injuries.
52 In the alternative, if Initiative Proponents claims are not prudentially

ripe, they are ripe because HB 2244 has already caused harm to the Initiative

Proponents. This comes primarily in the form of the loss of a constitutional right

that is, the Initiative Proponents right to have their contemplated initiative efforts

evaluated under the substantial compliance standard. Melendres v. Arpaio, 695

F.3d 990, 1002 (9th Cir. 2012) ([T]he deprivation of constitutional rights

unquestionably constitutes irreparable injury.). But the trial court further found

current harm in the case of at least one Initiative Proponent, AzAN, for which the

looming prospect of the effective date already had an adverse effect on its

fundraising efforts. [APPX_170-171] More specifically, the heightened standard

of review makes it more difficult to raise funds and overcome the concerns of

potential donors and partners who are aware of the difficulties associated with strict

compliance. [Id.; see also Arizona Assn of Providers for Persons with Disabilities

v. State, 223 Ariz. 6, 13 18 (App. 2009) (plaintiffs established harm by showing

they would be affected by rate reductions); see also Florida State Conference of

N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165-66 (11th Cir. 2008) (finding concrete

injury based on a showing that plaintiffs reasonably anticipate that they will have

{00317695.5 } 32
to divert personnel and time to educating volunteers and voters on compliance with

a law affecting voting rights).

53 Where a party has suffered an injury resulting from a statute it claims

to be unconstitutional, its claim is necessarily ripe for review. California Pro-Life

Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003) (citation omitted);

Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1007 n.6

(9th Cir. 2003) ([O]ur conclusion that [Plaintiff] has suffered actual harm dispenses

with any ripeness concerns.). That is precisely the case with all Initiative

Proponents because they have suffered a loss of their constitutional right to have

their efforts subjected to the less-exacting substantial compliance standard.

Further, the unrefuted evidence demonstrates that AzAN is already being financially

harmed by the mere prospect of HB 2244. This alone is sufficient to reverse the trial

court.

C. The Ruling Sets Forth a Novel and Burdensome Ripeness

Standard.
54 The trial courts Ruling is also erroneous and should be reversed

because it requires more than the well-established ripeness standard demands, to say

nothing of the fact that it is entirely unclear when this case becomes ripe. Are the

claims ripe when an initiative is filed, when the first signature is gathered, when a

lawsuit is brought challenging the initiative, or when the strict compliance standard

is applied to invalidate an initiative? Under the trial courts formulation of ripeness,

{00317695.5 } 33
Initiative Proponents would have to file and refile their claims until they achieve

some magic status, or they must wait to bring their claims until they risk

disqualification, all the while suffering mounting injury. The trial court clearly erred

by imposing a heightened ripeness standard. Rather, the trial court should have

exercised its discretion and waived the ripeness requirement altogether in order to

resolve the issues of statewide importance raised by the Initiative Proponents.

55 Indeed, and as described above, the Arizona Constitution does not

require a party to assert an actual case or controversy Bennett, 211 Ariz. at 195

14, which means that ripeness is a requirement that can be waived by courts when

appropriate. Cf. Sears v. Hull, 192 Ariz. 65, 71 25 (1998) (courts can as a matter

of discretion . . . waive the requirement of standing, which they have done in cases

involving issues of great public importance that are likely to recur.); Rios v.

Symington, 172 Ariz. 3, 5 n.2 (1992) (overlooking potential standing issues where

a case involved a dispute at the highest levels of state government related to the

separation of powers); Goodyear Farms v. City of Avondale, 148 Ariz. 216, 217 n.1

(1986) (overlooking potential standing issues in case involving the constitutionality

of a zoning ordinance).

56 Here, and if the Court concludes that the Initiative Proponents claims

are not ripe based on the authorities detailed above (which it should not), the Court

should exercise its discretion to waive the ripeness requirement in recognition not

{00317695.5 } 34
only of the importance of the peoples reserved power to legislate by initiative, but

also of the fact that HB 2244 is a dangerous affront to the judiciarys power to

declare what the constitution requires. Forty-Seventh Legislature, 213 Ariz. at

485 8.

II. HB 2244 INVADES THE PROVINCE OF THE JUDICIARY AND

VIOLATES THE SEPARATION OF POWERS. 3
57 HB 2244 violates Article III because it purports to overturn decisions

of the Supreme Court interpreting Article IV of the Arizona Constitution and

prescribe to the judiciary a particular constitutional interpretation (in the form of a

standard of review) going forward. Article III is violated at the point where [a]

legislative enactment unreasonably limits the judiciarys performance of its duties,

San Carlos Apache Tribe v. Superior Court (San Carlos), 193 Ariz. 195, 211 37

(1999), HB 2244 is just such an enactment, and it is unconstitutional and

unenforceable as a result.

58 Article III provides that [t]he powers of the government of the state of

Arizona shall be divided into three separate departments, the legislative, the

3
That the trial court did not pass on this purely-legal issue is of no consequence.
See State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 194 (App. 1990)
([B]ecause this case is already properly before us we can determine whether there
are any disputed issues of material fact. If there are none, and one party is shown to
be entitled to judgment as a matter of law, we may direct the trial court to enter such
a judgment.). The Court can and should decide the issue now, as [t]o refuse to
consider this issue would be to foster piecemeal litigation. Id.

{00317695.5 } 35
executive, and the judicial; and . . . no one of such departments shall exercise the

powers properly belonging to either of the others. Whether a particular law violates

Article III turns on the application of four factors: (1) the essential nature of the

power exercised; (2) the Legislatures degree of control in exercising the power; (3)

the Legislatures objective; and (4) the practical consequences of the action. San

Carlos, 193 Ariz. at 211 37. A proper consideration of the historical importance

of the initiative power and these factors leads to only one conclusion: HB 2244

usurps the judiciarys exclusive authority to interpret the provisions of the Arizona

Constitution or prescribe judicial standards of review.

A. The Substantial Compliance Standard Is Based on the

Judiciarys Interpretation of the Arizona Constitution.
59 As a threshold matter, there can be no serious question that the

governing substantial compliance standard is based on the Supreme Courts

interpretation of the Arizona Constitution. The historical development of that

standard is critical context to understand HB 2244s unabashed attempt to violate

the separation of powers.

60 The framers of the Arizona Constitution were advocates of th[e]

method of popular government known as the initiative and referendum, and the

records of the constitutional convention, together with the language of the []

constitution, show clearly that it was the opinion of the delegates who adopted and

signed it that its provisions setting forth these principles were among the most

{00317695.5 } 36
important to be found therein. Whitman, 59 Ariz. at 218. Relevant here, the

peoples reserved power to legislate by initiative is enshrined in Article IV, pt. 1,

1(2) of the Arizona Constitution, and in interpreting that provision, the Supreme

Court has emphasized that it is bound to take . . . into consideration the importance

of this power to our framers and the voters who overwhelmingly approved it. Id.;

see also Pedersen v. Bennett, 230 Ariz. 556, 558 7 (2012) (Arizona has a strong

policy supporting the peoples exercise of this power.).

61 Applying these fundamental principles of public policy, the Supreme

Court interprets Article IV, pt. 1, 1(2) of the Arizona Constitution to require only

substantial compliance with constitutional and statutory requirements relevant to

the initiative process.4 This constitutional interpretation has its roots in Kerby v.

Griffin, 48 Ariz. 434, 459 (1936), but was articulated most clearly in Whitman:

It is, of course, a mere platitude to say that the people are the superior
power in our system of government. The history of our Constitution and
its adoption, to which we have previously referred, shows beyond the
possibility of contradiction that the people themselves deliberately and
intentionally announced that, by its adoption, they meant to exercise
their supreme sovereign power directly to a far greater extent than had
been done in the past, and that the legislative authority, acting in a
representative capacity only, was in all respects intended to be
subordinate to direct action by the people. We, therefore, think that
when there is any doubt as to the requirements of the Constitution
going only to the form and manner in which the power of an initiative
should be exercised, every reasonable intendment is in favor of a

4
In contrast, the Arizona Supreme Court has applied the more exacting strict
compliance standard to referendum petitions. W. Devcor, Inc. v. City of Scottsdale,
168 Ariz. 426, 428-29 (1991).

{00317695.5 } 37
 liberal construction of those requirements and the effect of a failure
to comply therewith, unless the Constitution expressly and explicitly
makes any departure therefrom fatal.
59 Ariz. at 220 (emphasis added). There the Supreme Court cited approvingly to a

decision of the Oklahoma Supreme Court that explained the reason behind this liberal

constitutional interpretation:

The people who circulate a petition to submit for the consideration of

their fellow citizens, constitutional and statutory provisions for the most
part are unquestionably animated by a purpose which to them and the
signers thereof, at least, appears good. Those who circulate the petition
will necessarily be drawn from the ranks of volunteers or those who,
for a very small consideration, call attention to their fellow citizens to
the measure proposed, and solicit their interest therein. Necessarily
even with the best safeguards that can be thrown around the
circulation of petitions, where such a large number of names are
required, inaccuracies and technical departure from prescribed forms
are certain to occur every time a petition is circulated.
Id. at 221-22 (emphasis added) (citation omitted).

62 In Kromko v. Superior Court, 168 Ariz. 51, 57-58 (1991), the Supreme

Court again held that requirements as to the form and manner in which citizens

exercise their power of initiative should be liberally construed. The constitutional

origins of the substantial compliance standard were again emphasized in

Pedersen, 230 Ariz. at 558 7-8, where the Supreme Court rejected the argument

that it should abandon its longstanding interpretation of pt. 1, 1(2) to require only

substantial compliance. Id. at 559 13 ([W]e conclude that our current test

strikes the appropriate balance between protecting our citizens right to initiate laws

and the integrity of the election process.). And just five years prior, the Supreme

{00317695.5 } 38
Courts refusal to abandon that constitutional interpretation was more detailed and

express:

[W]e decline Wilhelms invitation to revisit our standard of substantial

compliance review . . . . Wilhelm argues that this Courts standard for
evaluating initiative petitions has eroded such that the 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.

Wilhelm v. Brewer, 219 Ariz. 45, 49 19 (2008) (emphasis added).

63 In short, the substantial compliance standard is unquestionably based

on an interpretation of the Arizona Constitution, a fact that the State Defendants had

no choice but to admit below. [Tr. Day 1 (AM) 55:7-9 (APPX_0XX) ([T]he

Arizona Supreme Court interpreted the Constitution as allowing substantial

compliance with initiative petitions.)] With this in mind, we turn to the application

of the San Carlos factors, all of which support the conclusion that HB 2244 violates

Article III.

B. HB 2244 Fails Under Each of the San Carlos Factors.

1. The essential nature of the power exercised is judicial.
64 The first San Carlos factor requires the Court to analyze the essential

nature of the power exercised by HB 2244, and here, the power exercised by the

Legislature through HB 2244 specifically, overturning decades of judicial

{00317695.5 } 39
precedent interpreting the Arizona Constitution and prescribing a constitutional

standard of review going forward is judicial in nature.

65 Although each branch of government must apply and uphold the

constitution, our courts bear ultimate responsibility for interpreting its provisions.

Forty-Seventh Legislature, 213 Ariz. at 485 8; see also State v. Casey, 205 Ariz.

359, 362 8 (2003) ([I]nterpretation of the state constitution is, of course, our

province.); Pool v. Superior Court, 139 Ariz. 98, 108 (1984) (same). And though

HB 2244s particular variety of usurpation of the judiciarys constitutionally-

committed authority is of recent vintage in Arizona, it is not in the federal system. 5

As the U.S. Supreme Court has explained, Congress may not legislatively

supersede our decisions interpreting and applying the Constitution. Dickerson v.

United States, 530 U.S. 428, 437 (2000); Glidden Co. v. Zdanok, 370 U.S. 530, 541

(1962) (Of course, Congress may not by fiat overturn the constitutional decisions

of this Court).

66 Dickerson is instructive and nearly on all fours with the case at hand.

At issue there was a federal statute that purported to define as voluntary certain

statements made to law enforcement regardless of whether the party making the

5
In the absence of a state decision directly on point, Arizona courts look to
federal decisions regarding the separation of powers for guidance. See, e.g., San
Carlos Apache Tribe, 193 Ariz. at 210 33 (applying United States v. Klein, 80 U.S.
128 (1871)).

{00317695.5 } 40
statements had been given warnings pursuant to Miranda v. Arizona, 384 U.S. 436,

441-42 (1966). The defendant argued that because the statute purported to supersede

Miranda, it was an unconstitutional exercise of legislative power. The U.S. Supreme

Court unsurprisingly agreed, holding that Miranda announced a constitutional rule

that Congress may not supersede legislatively. 530 U.S. at 444.

67 The same holds true here. That is, because the substantial compliance

standard arises out of the Arizona Supreme Courts decisions interpreting the

Arizona Constitution in Kerby, Whitman, and their progeny, the Legislatures

attempt to overturn those decisions of the Arizona Supreme Court and prescribe a

standard of review going forward is an essential power of the judiciary. This factor

thus weighs heavily in favor of the conclusion that HB 2244 violates Article III.

2. The Legislatures degree of control in exercising the power

is non-existent.
68 The second San Carlos factor turns on the legislatures degree of

control in exercising the power at issue in HB 2244, which as detailed above, is

non-existent because the Legislature simply lacks the power to declare what the

Arizona Constitution requires. By removing the judiciarys power to declare what

Article IV requires, the Legislature unconstitutionally took complete control over

that power. San Carlos, 193 Ariz. at 212 39.

69 Below, the State Defendants posited that HB 2244 was a valid exercise

of the Legislatures lawmaking authority because the fact that a constitutional

{00317695.5 } 41
provision is self-executing does not forever bar legislation on the subject, and that

[i]f such legislation does not unreasonably hinder or restrict the constitutional

provision and if the legislation reasonably supplements the constitutional purpose,

then the legislation may stand. Direct Sellers Assn v. McBrayer, 109 Ariz. 3, 5

(1972). According to the State Defendants, HB 2244 reasonably supplements the

constitutional purpose behind Article IV, pt. 1, 1(2).

70 No doubt, the Legislature has properly enacted a host of statutes that

regulate the initiative process, regulations found primarily in Title 19 of the

Arizona Revised Statutes. By way of example, the Legislature has prescribed

(among many other things) the text that must be included on an initiative petition

sheet (A.R.S. 19-102), the font size of the title and text that must be attached to an

initiative petition (A.R.S. 19-112(B)), and the text of the affidavit that must be

completed by the circulator (A.R.S. 19-112(D)). Nothing about these requirements

conflicts with the Arizona Constitution, so they constitute a legitimate exercise of

the Legislatures authority. See, e.g., Direct Sellers Assn, 109 Ariz. at 5 (holding

that a statute requiring that those signing referendum petitions be qualified electors

was a valid supplement to Article IV of the Arizona Constitution).

71 But these requirements contrast starkly with those that infringe on

constitutional rights, a situation illustrated well in Turley v. Bolin, 27 Ariz. App. 345

(1976). Before this Court in Turley was a statute that purported to shorten the

{00317695.5 } 42
constitutionally-required timeframe for the submission of petition signatures from

four months prior to election day to five months. As this Court held, the statute

could not stand because th[e] constitutional filing limitation must be considered in

the context of the important legislative rights reserved in the peoplerights which

are not to be considered as being subordinate to any legislative rights vested in the

legislature. Id. at 350 (emphasis added). And because that right was not subject

to . . . derogation by the legislature, the statute was unconstitutional. Id. HB 2244

is no different. Here, not only does HB 2244 derogat[e] the right to legislate by

initiative, but it also infringes on the judiciarys exclusive right to declare what is

required by the Arizona Constitution. As detailed above, the Legislature simply has

no degree of control in this arena.

72 Nonetheless, the State Defendants further argued that [j]udge-made

common law may be displaced by legislative acts when the common law is

substantive in nature; that is, when it creates, defines, and regulates rights[.]

They cited to Seisinger v. Siebel, 220 Ariz. 85 (2009), as supporting this argument.

In that case, the Arizona Supreme Court considered the validity of a statute that

conflicted with the then-existing version of Arizona Rule of Evidence 702, relating

to the qualifications of expert witnesses. In discussing the underlying separation of

powers issue specifically, that the Arizona Constitution vests the judiciary with

[p]ower to make rules relative to all procedural matters in any court, Ariz. Const.

{00317695.5 } 43
art. VI, 5(5) the court explained that the legislature and this Court both have

rulemaking power, but that in the event of irreconcilable conflict between a

procedural statute and a rule, the rule prevails. Id. at 89 8. There, though a

conflict existed, the statute prevailed because it touched primarily on substance,

rather than procedure. Id. at 95 38.

73 But the judiciarys interpretation of the Arizona Constitution is not

mere judge-made common law, and Seisinger cannot save HB 2244.6 On the

contrary, Seisinger highlights HB 2244s unconstitutionality. Indeed, because the

State Defendants label the substantial compliance and strict compliance

standards as being exclusively judicial standards of review, they bring to the

forefront a separate reason why HB 2244 runs afoul of Article III. Specifically,

standards of review are a matter of procedural, rather than substantive, law as [they]

provide[] a method for obtaining redress for the invasion of rights and do[] not

create, define, or regulate rights. State v. Forde, 233 Ariz. 543, 575-76 146

(2014). And so, even assuming that the judicially-declared substantial compliance

standard was nothing more than a judicially-prescribed standard of review without

constitutional origins (which it plainly is not), HB 2244 would intrude on the

6
Nor can Governale v. Lieberman, 226 Ariz. 443 (App. 2011), referenced by
the State Defendants in their closing argument in the trial court. That case did not
involve a separation of powers challenge, and its discussion of the Anti-Abrogation
Clause of the Arizona Constitution is irrelevant here.

{00317695.5 } 44
judiciarys exercise of its procedural rulemaking authority (as described in

Seisinger), would still violate Article III, and thus would still be unconstitutional.

See, e.g., Baresma v. Susong, 156 Ariz. 309, 314 (1988) (declaring unconstitutional

a statute purporting to define what is relevant in judicial proceedings).

74 At bottom, the Legislature has no degree of control over the

interpretation of the Arizona Constitution (or prescribing a procedural judicial

standard of review), and thus the second San Carlos factor also weighs in favor of

the conclusion that HB 2244 violates Article III.

3. The Legislatures stated objective in enacting HB 2244

evidences its unconstitutional motives.
75 The third San Carlos factor turns on the Legislatures objective in

enacting HB 2244, which here, involves no guesswork. This is a rare case where the

Legislature has enacted an unconstitutional statute while at the same time expressly

stating its unconstitutional motive. As Section 3 of HB 2244 states, it is the Voter

Protection Act (VPA) enacted nearly two decades ago that compels a departure

from decades of constitutional jurisprudence because it greatly impairs the ability

of the legislature, representing the will of the people, to implement changes to or

corrective measures for voter-approved initiatives. But of course, this Court need

not accept the Legislatures unsupported findings regarding the VPA. See, e.g.,

United States v. Morrison, 529 U.S. 598, 614 (2000) ([S]imply because [the

legislature] may conclude that a particular activity [does something] does not

{00317695.5 } 45
necessarily make it so.). And in any event, the Legislatures declarations in

HB 2244 reveal its true nefarious intent: to protect its own power at the expense of

the people to whom it is constitutionally-beholden.

76 To be clear, Section 3 of HB 2244 treats the VPA as a mere annoyance

that can be cast aside by the Legislature at its whim, while ignoring that it is a

constitutional limitation on the Legislatures power. Whatever impairments the

VPA may cause to the Legislature, they were an intended consequence of that

initiative. In enacting the VPA, the people were concerned with precisely the

mischief about which the Legislature complains in Section 3 of HB 2244. See

Arizona Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 469 7 (2009)

(explaining that the VPAs backers were concerned that the legislature was abusing

its power to amend and repeal voter-endorsed measures.). In consequence, the very

basis of HB 2244 is offensive to a fundamental concept of Arizona law: that the

peoples authority is supreme. State ex rel. Davis v. Osborne, 14 Ariz. 185, 191

(1912) (The sovereign people speak in the language of their Constitution. Their

will expressed in the Constitution is the will of the sovereign itself. The legislature

may speak but only within the limitations of the fundamental law.).

77 Whatever the Legislature says, its true purpose in enacting HB 2244

was its frustration with the peoples check on its power via their enactment of the

VPA. And if the Legislature believes strongly enough in its position regarding the

{00317695.5 } 46
wisdom of the VPA, Article XXI of the Arizona Constitution provides it with two

avenues through which to seek the peoples approval to repeal that constitutional

provision. But what is not proper is the end-run around those procedures and

protections embodied in HB 2244. The Legislatures objective in enacting

HB 2244 thus also weighs in favor of the conclusion that the legislation violates

Article III.

4. The practical consequences of HB 2244 render it

unconstitutional.
78 The final San Carlos factor requires an analysis of the practical

consequences of the Legislatures enactment of HB 2244, which as detailed above,

disrupts the constitutional balance of powers between the branches of government.

It also weighs in favor of the conclusion that the legislation violates Article III.

C. HB 2244 Violates Article III.

79 The Legislature has the power to enact and create law within

constitutional bounds. San Carlos Apache Tribe, 193 Ariz. at 211 37. HB 2244

fails under all four factors of San Carlos. As a result, HB 2244 is facially

unconstitutional because it violates Article III; there are simply no circumstances

under which the Legislature can constitutionally overturn constitutional decisions

and interpretations of the Arizona Supreme Court.

{00317695.5 } 47
III. HB 2244 VIOLATES ARTICLE IV BECAUSE IT UNREASONABLY
RESTRICTS THE EXERCISE OF THE INITIATIVE POWER. 7

80 HB 2244s constitutional infirmities do not end with Article III, as that

legislation also constitutes a direct violation of Article IV for two reasons, either of

which standing alone would be sufficient: (i) HB 2244 unreasonably hinder[s] or

restrict[s] Plaintiffs rights under that constitutional provision, and (ii) it does not

reasonably supplement[] the constitutional purpose. Turley, 27 Ariz. App. at 348.

81 HB 2244 violates the first prong of the Turley test by unduly restricting

the rights of the Initiative Proponents, and those who will exercise their right to

circulate initiative petitions in the future. As discussed above, the trial court found

that HB 2244 makes it far more difficult to raise funds and garner support for

initiative efforts. In addition, it will significantly increase the number of signatures

needed to qualify a measure for the ballot, resulting in additional expense that, in the

words of Mr. Chavez, will prevent many grassroots citizens groups from being able

to exercise initiative rights that they currently enjoy. [Tr. Day 1 (am) at 80] It

indisputably will result in more litigation challenges, and therefore higher litigation

expenses. And it will also significantly increase the likelihood that litigation

challenges will be successful. These, no doubt, constitute undue (and unjustified)

restrictions on the Initiative Proponents constitutional right to legislate by initiative,

7
See n.3, supra.

{00317695.5 } 48
and in fact strip them of a constitutional right they enjoyed pre-HB 2244 the right

under Article IV to have their initiative efforts reviewed under a substantial

compliance standard. See, e.g., Kromko, 168 Ariz. at 57-58 (requirements as to

the form and manner in which citizens exercise their power of initiative should be

liberally construed.).

82 HB 2244 also violates the second prong of the Turley test; it does not

supplement the constitutional purpose. Indeed, the legislative findings in Section 3

of HB 2244 make clear that the Legislature passed HB 2244 to make it more difficult

for initiative measures to qualify for the ballot, so that there will be fewer measures

protected by the VPA. The State Defendants admitted as much below when they

explained that HB 2244 was intended to ensure that Arizonans are not harmed by

. . . initiatives that cannot be undone by their legislative representatives. [IR 79 at

12] To intentionally curtail the exercise of a fundamental constitutional right is

plainly not to supplement it (reasonably or otherwise), and HB 2244 thus cannot

survive scrutiny under Article IV.

83 Based on the trial courts findings of fact, the Initiative Proponents

established that HB 2244 violates Article IV, which is an independent basis upon

which to declare that law unconstitutional and enjoin its enforcement.

{00317695.5 } 49
 Notice Under Rule 21(a)

84 Pursuant to Rule 21(a), Ariz. R. Civ. App. P., the Initiative Proponents

request their costs on appeal pursuant to A.R.S. 12-341. They further request an

award of attorneys fees under the private attorney general doctrine, an equitable

rule which permits courts in their discretion to award attorneys fees to a party who

has vindicated a right that: (1) benefits a large number of people; (2) requires private

enforcement; and (3) is of societal importance. Arnold v. Ariz. Dept of Health

Servs., 160 Ariz. 593, 609 (1989). The purpose of the doctrine is to promote the

vindication of important public rights. Id. The Initiative Proponents protection of

the right to legislate by initiative through this litigation benefits the entire state

electorate, requires private enforcement, and is of societal importance. For these

reasons, an award of attorneys fees is appropriate in this case. 8

Conclusion

85 By enacting HB 2244, the Legislature violated Article III by telling

courts to interpret Article IV in a manner that the Supreme Court has expressly

rejected for decades. Article III does not permit this intrusion into the province of

the judiciary. The Legislature cannot require the judiciary to interpret the Arizona

8
The Initiative Proponents further request that the scope of this Courts remand
to the superior court include an express direction that it award reasonable attorneys
fees incurred for the now-completed proceedings before that court.

{00317695.5 } 50
Constitution according to its want and whim, particularly when doing so would

directly violate the Initiative Proponents constitutional rights.

86 Thankfully for the people of Arizona, both the Constitution and this

Court stand in the Legislatures way. The Legislature has plainly overstepped its

bounds, and this Court as part of a long and proud judicial tradition of protecting

the peoples rights under Article IV should not hesitate to intervene. The Judgment

below should be reversed, and the matter remanded to the superior court for the entry

of judgment in favor of the Initiative Proponents.

Respectfully submitted this 1st day of November, 2017.

COPPERSMITH BROCKELMAN PLC

By /s/ Roopali H. DesaI

Roopali H. Desai
Keith Beauchamp
D. Andrew Gaona

ARIZONA CENTER FOR LAW IN THE

PUBLIC INTEREST
Timothy M. Hogan

Attorneys for Plaintiffs/Appellants

{00317695.5 } 51