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’ REPLY BRIEF

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

Keith Beauchamp (012434) ARIZONA CENTER FOR LAW
D. Andrew Gaona (028414) IN THE PUBLIC INTEREST
COPPERSMITH BROCKELMAN PLC 514 West Roosevelt Street
2800 North Central Avenue, Suite 1900 Phoenix, Arizona 85003
Phoenix, Arizona 85004 Telephone: (602) 258-8850
Telephone: (602) 381-5490
thogan@aclpi.org
rdesai@cblawyers.com
kbeauchamp@cblawyers.com
agaona@cblawyers.com
Attorneys for Plaintiffs/Appellants

{00341390.1 }
 TABLE OF CONTENTS
Table of Citations ..................................................................................................... iii

Introduction ................................................................................................................1

Argument....................................................................................................................3

I. The Initiative Proponents’ Claims Are Ripe. ..................................................3

A. The Trial Court’s Findings Of Fact Are Entitled To
Deference...............................................................................................3

B. The Initiative Proponents’ Claims Are Prudentially Ripe. ...................7

1. The claims are prudentially ripe under Arizona law. .................8

2. The claims are prudentially ripe under analogous

principles of federal law............................................................12

C. The Initiative Proponents’ Claims Are Ripe Because They

Have Already Suffered Injuries...........................................................14

D. The Court Should Waive The Ripeness Requirement To

Resolve An Issue Of Statewide Importance........................................18

II. This Court Should Consider The Underlying Constitutional

Claims. ...........................................................................................................18

III. HB 2244 Invades The Province Of The Judiciary And Violates

The Separation Of Powers. ............................................................................19

A. The Legislature Has No Power To Alter The

Constitutionally-Based “Substantial Compliance” Standard
Announced By The Judiciary. .............................................................19

B. A Constitutional Rule Is Not Mere “Common Law” To Be

Replaced At The Legislature’s Whim. ................................................23

C. The Legislature’s Conclusion That HB 2244 Is “Good

Policy” Is Irrelevant.............................................................................25

D. HB 2244 Violates Article III. ..............................................................25

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IV. HB 2244 Violates Article IV Because It Unreasonably Restricts
The Exercise Of The Initiative Power. ..........................................................25

V. The State Defendants Do No Dispute The Initiative Proponents’

Entitlement To Attorneys’ Fees.....................................................................28

Conclusion ...............................................................................................................28

{00341390.1 } ii
 TABLE OF CITATIONS
Page
Cases
Bennett v. Brownlow,
211 Ariz. 193 (2005) .......................................................................................8, 18

Canyon del Rio Inv’rs, L.L.C. v. City of Flagstaff,

227 Ariz. 336 (App. 2011) ..............................................................................2, 10

State v. Casey,
205 Ariz. 359 (2003) ...........................................................................................21
Chalpin v. Snyder,
220 Ariz. 413 (App. 2008) ............................................................................13, 28

City of Tucson v. Consumers for Retail Choice Sponsored by Wal-Mart,

197 Ariz. 600 (App. 2000) ............................................................................26, 27
Dickerson v. United States,
530 U.S. 428 (2000) ............................................................................1, 16, 20, 23
Dobson v. State,
233 Ariz. 119 (2013) ...........................................................................................28

Escamilla v. Cuello,
230 Ariz. 202 (2012) ...........................................................................................11

In re Estate of Stewart,
230 Ariz. 480 (App. 2012) ................................................................................8, 9

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

522 F.3d 1153 (11th Cir. 2008) ..........................................................................17

State v. Forde,
233 Ariz. 543 (2014) .......................................................................................3, 24

Forty-Seventh Legislature v. Napolitano,

213 Ariz. 482 (2006) ...........................................................................................20

In re Gen. Adjudication of All Rights to Use Water in Gila River Sys.

& Source, 198 Ariz. 330 (2000) ...................................................................3, 4, 5

{00341390.1 } iii
Glidden Co. v. Zdanok,
370 U.S. 530 (1962) ......................................................................................15, 21
Gorman v. City of Phoenix,
76 Ariz. 35 (1953) ...............................................................................................16

Arizona Bd. of Regents v. Harper,

108 Ariz. 223 (1972) ...........................................................................................16
Harris v. Cochise Health Sys.,
215 Ariz. 344. (App. 2007) .................................................................................19

Initiative and Referendum Institute v. Walker,

450 F.3d 1082 (10th Cir. 2006) ..............................................................12, 13, 14

Keggi v. Northbrook Prop. & Cas. Ins. Co.,

199 Ariz. 43 (App. 2000) ....................................................................................10
Marquez v. Indus. Comm’n,
110 Ariz. 273 (1974) ...........................................................................................16
McElhaney Cattle Co. v. Smith,
132 Ariz. 286 (1982) ...........................................................................................21
Meyer v. Grant,
486 U.S. 414 (1988) ............................................................................................11

Miller v. Board of Supervisors of Pinal County,

175 Ariz. 296 (1993) .........................................................................................4, 6
Miranda v. Arizona,
384 U.S. 436 (1966) ............................................................................................16
Moore v. Bolin,
70 Ariz. 354 (1950) .......................................................................................10, 11
Nunez by Nunez v. City of San Diego,
114 F.3d 935 (9th Cir. 1997) ..............................................................................15
Orca Communications Unlimited, LLC v. Noder,
236 Ariz. 180 (2014) ...........................................................................................23

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Pederson v. Bennett,
230 Ariz. 556 (2012) ...............................................................................12, 23, 25
Phelps Dodge Corp. v. Arizona Elec. Power Co-op., Inc.,
207 Ariz. 95 (App. 2004) ....................................................................................12

State v. Rios,
225 Ariz. 292 (App. 2010) ..................................................................................17
Robinson v. Hotham,
211 Ariz. 165 (App. 2005) ..................................................................................21

San Carlos Apache Tribe v. Superior Court,

193 Ariz. 195 (1999) .....................................................................................20, 25

Sears v. Hull,
192 Ariz. 65 (1998) .............................................................................................18
Seisinger v. Siebel,
220 Ariz. 85 (2009) .............................................................................................24
State Farm Mut. Auto. Ins. Co. v. Peaton,
168 Ariz. 184 (App. 1990) ............................................................................18, 19
Turley v. Bolin,
27 Ariz. App. 345 (1976) ....................................................................................26

U.S. West Communications, Inc. v. Arizona Corporation Commission,

197 Ariz. 16 (App. 1999) ......................................................................................9
Valerie M v. Arizona Department of Economic Security,
219 Ariz. 331 (2009) ...........................................................................................24
Western Devcor, Inc. v. City of Scottsdale,
168 Ariz. 426 (1991) ...........................................................................................27
Whitman v. Moore,
59 Ariz. 211 (1942) ...........................................................................11, 15, 16, 22
Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ............................................................................12

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Constitutional Provisions and Statutes
Ariz. Const. Art. III ...........................................................................................passim

Ariz. Const. Art. IV...........................................................................................passim

A.R.S. § 12-1832......................................................................................................10

{00341390.1 } vi
 Introduction
¶1 The Initiative Proponents and State Defendants can agree on at least

one thing: “This appeal turns on a simple question.” [Answering Brief (“AB”) at 1]

That question, however, is not one of “ripeness,” but rather whether the Legislature

may constitutionally overrule an unbroken line of judicial precedent interpreting

Article IV of the Arizona Constitution (“Article IV”) to require only “substantial

compliance” with the requirements governing the citizen initiative process. The

answer is equally simple; the Legislature “may not legislatively supersede [judicial]

decisions interpreting and applying the Constitution.” Dickerson v. United States,

530 U.S. 428, 437 (2000).

¶2 Yet HB 2244 does just that, and thus violates Article III of the Arizona

Constitution (“Article III”). The Initiative Proponents sought relief to prevent this

legislative overreach, and did so because each had been involved in the initiative

process in the past and plans to utilize that process in 2018 and beyond. HB 2244

not only deprives the Initiative Proponents of their constitutional right to have their

initiative efforts subjected to the “substantial compliance” standard, but also imposes

additional costs on (or precludes entirely) their plans to circulate petitions. These

injuries satisfy Arizona’s prudential standing and ripeness requirements.

¶3 Despite this, the trial court held that the Initiative Proponents’

constitutional challenges were not ripe because “[n]o plaintiff has a pending

{00341390.1 } 1
initiative measure[,]” and “HB 2244 is not yet law and has not been applied to any

matter related to any pending initiative measure[.]” [ROA 82 at 17] On appeal, the

State Defendants take the trial court’s holding further and argue that the Initiative

Proponents cannot seek relief until they: (1) complete the additional work required

under HB 2244, (2) incur the additional expenses resulting from HB 2244, (3) collect

the additional signatures required to survive the Secretary of State’s scrutiny under

HB 2244, and (4) face litigation. In other words, the State Defendants contend that

the Initiative Proponents must suffer the harm that HB 2244 will inflict before they

can seek relief from the unconstitutional legislation that causes that harm.

¶4 That is not, and cannot be, the law. In fact, neither the trial court’s

ruling nor the State Defendants’ added flourish align with well-established principles

of prudential standing, which permit a pre-enforcement action of this nature. Nor

can they be squared with the liberally-construed Uniform Declaratory Judgments

Act (“UDJA”), which “allows adjudication of rights before the occurrence of a

breach or injury.” Canyon del Rio Inv’rs, L.L.C. v. City of Flagstaff, 227 Ariz. 336,

341 ¶ 18 (App. 2011) (emphasis added). The indisputable fact is that HB 2244’s

imposition of a “strict compliance” standard of review affects every aspect of the

initiative process and has already harmed the Initiative Proponents by making it

more expensive (and difficult) to exercise their fundamental constitutional right.

{00341390.1 } 2
¶5 The Initiative Proponents’ claims are ripe, the trial court’s order

dismissing the case should be reversed, and this Court should declare that HB 2244

violates Article III and Article IV.

Argument
I. THE INITIATIVE PROPONENTS’ CLAIMS ARE RIPE.
¶6 The Initiative Proponents’ claims challenging the constitutionality of

HB 2244 were (and are) ripe for adjudication, the trial court’s conclusion to the

contrary was in error, and nothing the State Defendants say changes that result.

Arizona’s prudential ripeness requirement is not – and should not be – the near-

insurmountable burden the State Defendants urge.

A. The Trial Court’s Findings Of Fact Are Entitled To Deference.

¶7 This Court “defer[s] to the trial court’s findings of fact unless they are

clearly erroneous.” State v. Forde, 233 Ariz. 543, 556 ¶ 28 (2014). Indeed, “[t]he

trial court, not this court, weighs the evidence and resolves any conflicting facts,

expert opinions, and inferences therefrom.” In re Gen. Adjudication of All Rights to

Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340 ¶ 25 (2000). Here, the

trial court’s findings of fact are entitled to deference. However, the findings do not

support the trial court’s ruling; they demand a different result. Because this Court is

not bound by the trial court’s conclusions of law and must review the trial court’s

ruling de novo, it should properly apply the findings to hold that the Initiative

Proponents’ claims are ripe.

{00341390.1 } 3
¶8 The State Defendants ignore the deference owed to the trial court.

Instead, they claim that this Court should ignore numerous findings in favor of

preserving the ultimate conclusion, which is otherwise unsupported by those

findings. Their arguments regarding ripeness turn, in large part, on a restrictive

reading of the trial court’s findings of fact [AB at 19-23], one that quite literally casts

aside all of the testimony of the Initiative Proponents and the unrefuted testimony of

their expert witnesses. Citing Miller v. Board of Supervisors of Pinal County, 175

Ariz. 296 (1993), the State Defendants posit that “a court’s findings of fact include

only that evidence the court found persuasive, or at least indicate what evidence it

credits,” and that because the trial court’s findings are allegedly “contradictory,” this

Court should accept only those that favor them. But Miller says no such thing. There

is no requirement that a trial court expressly “credit” the evidence it utilizes to make

its findings and, here, the trial court accurately recounted and adopted the evidence

presented to it by the Initiative Proponents.

¶9 To be clear, under the heading “FINDINGS OF FACT” [APPX_085],

the trial court painstakingly described the evidence adduced over the course of a

two-day trial. It did so by making specific citations to the trial transcript (or

deposition designations) for the key points provided by each witness. The Opening

Brief [at 7-19], summarizes the key facts, none of which the State Defendants claim

are clearly erroneous. In short, the trial court found that:

{00341390.1 } 4
 • The Initiative Proponents had extensive past experience with the initiative

process [see, e.g., Ruling at 4 ¶ 4; 5 ¶ 5; 6 ¶ 6; 8 ¶ 7; 8-9 ¶ 8];

• The Initiative Proponents are seriously contemplating being involved in the

initiative process in 2018, and were at various stages in their preparations [id.];

• Based on the Initiative Proponents’ past experience and information provided

to them, HB 2244 will impose additional costs on their efforts [id.];

• According to the leading petition signature gathering firm in Arizona, the

baseline “cushion” for the number of signatures under a “strict compliance”

standard is 20-30% higher than what is needed under “substantial

compliance,” and HB 2244 will raise petition gathering expenses by

approximately 25%-30% [id. at 12 ¶ 17 (APPX_093); Tr. Day 1 (AM) at 72-74

(APPX_105-107); Tr. Day 1 (AM) at 80-82 (APPX_110-112)];

• AZAN was already being injured by HB 2244 because the looming prospect

of the effective date was having an adverse effect on its preliminary

fundraising conversations [Ruling at 9 ¶ 8 (APPX_090); Tr. Day 2 at 123:16-

124:4 (APPX_170-171)]; and

• The additional costs associated with HB 2244 may prevent AzAN from

proceeding with its initiative effort [Ruling at 10 ¶ 8 (APPX_091); Tr. Day 2

at 119:6-8 (APPX_168)].

{00341390.1 } 5
¶10 These findings are “sufficient” under the rule set forth in Miller. There

is not – as the State Defendants contend – any requirement that the trial court

expressly state that it “credits” the evidence utilized to support its findings of fact.

On the contrary, the trial court’s inclusion of trial testimony in its findings of fact is

the best evidence that it did “credit” that testimony.

¶11 The State Defendants go on to argue that there are “contradictions” in

the trial court’s findings of fact that can be resolved only by “tak[ing] as the actual

findings . . . those paragraphs that are unambiguously statements of the trial court,

rather than summations of various individuals’ testimony.” [AB at 20]

Unsurprisingly, this construct leaves only “findings” that support the State

Defendants’ position. But because this Court does not accept findings that are

clearly erroneous, the most critical of these alleged “contradictions” is, in fact, no

contradiction at all.

¶12 Specifically, the State Defendants make a great deal out of Finding 13,

which states:

HB 2244 does not alter the process or increase the cost of hiring, nor
alter the expected scope of engagement, of a circulator company to
gather signatures. Trial Day 1 PM, (Sandra Bahr testimony) at 58:14-
59:1; Trial Day 2, (Kory Langhofer testimony) at 194:2-195:4.

The problem, however, is that the cited portions of the trial transcript do not support

this “finding,” and ignore the testimony of the owner of Arizona’s leading petition

circulation company. Indeed, the cited provisions of Ms. Bahr’s testimony say

{00341390.1 } 6
absolutely nothing that is relevant to this alleged “finding”; instead, Ms. Bahr merely

testified that the initiative efforts in which she was involved had not yet incurred any

costs related to petition circulation, and elsewhere testified that those costs will

significantly increase. [Ruling at 7-8 ¶ 6] And Mr. Langhofer’s testimony on the

subject was limited by its own terms (it says nothing about the cost associated with

gathering an increased number of signatures) and his narrow expertise as an election

lawyer (and not as the owner of a petition circulation company).

¶13 The truth is that all credible evidence on this point was to the contrary.

Andrew Chavez – whom Mr. Langhofer himself called “the best in the state” at

circulating petitions [Tr. Day 2 at 236:10-13] – testified that the baseline “cushion”

for the number of signatures under a “strict compliance” standard is 20-30% higher

than what is needed under “substantial compliance,” and that as a result, HB 2244

will raise petition gathering expenses (not including legal expenses) by

approximately 25%-30%. [Ruling at 12 ¶ 17 (APPX_093] This uncontroverted

expert testimony belies any claim that there is a “contradiction” in the trial court’s

findings on a critical issue in this case; whether HB 2244 will cause harm to the

Initiative Proponents by making their efforts more expensive.

B. The Initiative Proponents’ Claims Are Prudentially Ripe.

¶14 With the threshold factual issue determined by the trial court, it is clear

why the Initiative Proponents’ constitutional claims are prudentially ripe. In short,

{00341390.1 } 7
the non-jurisdictional ripeness requirement does not compel the Initiative

Proponents to apply for a petition serial number or be sued for violating HB 2244 to

seek relief from its unconstitutional command.

1. The claims are prudentially ripe under Arizona law.

¶15 Unlike the U.S. Constitution, the Arizona Constitution does not contain

a “case or controversy” requirement that renders principles of standing and ripeness

as jurisdictional barriers to maintaining a cause of action. See Bennett v. Brownlow,

211 Ariz. 193, 195 ¶ 14 (2005). Those requirements are thus prudential only, and as

a consequence, are flexible in their application. This is particularly true when

considered alongside the UDJA.

¶16 The State Defendants disregard this flexible construction, and attempt

to distinguish [AB at 23-26] each of the Arizona decisions cited in the Opening Brief

which establish that the ripeness requirement is not rigid. For example, the State

Defendants argue that In re Estate of Stewart, 230 Ariz. 480 (App. 2012), is

inapposite because despite this Court’s holding that the “threat of enforcement” of

the in terrorem clauses in litigation was sufficient to ripen a dispute over their

enforceability, “the litigant had done everything necessary for the in terrorem

clauses . . . to be enforced against him.” [AB at 23] But that is simply untrue; at the

time the litigant in Stewart challenged the clauses, he had neither propounded any

written discovery nor noticed a deposition in which the clauses could be invoked as

{00341390.1 } 8
a shield. As this Court made clear, it was not even clear that the clauses would ever

be invoked. Id. at 483 ¶ 10 (noting that a potential line of discovery “would likely

involve inquiries made to other family members”) (emphasis added). Nonetheless,

this Court held that the dispute over the clauses’ enforceability was ripe because of

the mere “threat of enforcement,” which is precisely the nature of the Initiative

Proponents’ claims.

¶17 The State Defendants [AB at 24] also dismiss U.S. West

Communications, Inc. v. Arizona Corporation Commission, 197 Ariz. 16 (App.

1999), yet say nothing of this Court’s conclusion that the claim at issue was ripe, in

part, because it presented a pure issue of law, and a contrary conclusion would cause

a litigant to needlessly “incur expenses” and “consume time.” Id. at 20 ¶ 15. Again,

this is precisely the case with respect to the Initiative Proponents’ constitutional

claims, which are pure issues of law. To not decide those claims now would require

the Initiative Proponents to needlessly spend time and incur expenses, a reality that

is inconsistent with principles of judicial economy and the fundamental right of the

people of Arizona to legislate by initiative.

¶18 Lastly, the State Defendants give short shrift to the impact of the UDJA

on their ripeness arguments. They argue that even under the UDJA, the Initiative

Proponents’ claims would not be ripe until “(1) [they] submit[] paperwork to

circulate an initiative petition, (2) [they] circulat[e] the petition and gather[]

{00341390.1 } 9
sufficient signatures to qualify their initiative for the ballot; and, (3) a court challenge

[is] filed against Plaintiffs’ initiative petitions.” [AB at 25] In the State Defendants’

view, because the Initiative Proponents have not yet satisfied any of these supposed

requirements, their claims are improperly based on facts “which may or may not

arise in the future.” [Id. (citation omitted)] The State Defendants are simply wrong.

¶19 This unworkable and inequitable standard turns the remedial purpose

of the UDJA, which allows adjudication of rights before the occurrence of a breach

or injury,” Canyon del Rio Inv’rs, L.L.C., 227 Ariz. at 341 ¶ 18 (emphasis added),

completely on its head. It cannot be that the Initiative Proponents must wait until

after they have suffered the financial and other harm that HB 2244 will cause them

(e.g., expending the additional funds and time necessary to secure the 25%-30% of

additional signatures that will be required) in order to seek judicial relief from that

facially-unconstitutional statute. Both the plain language and liberal construction of

the UDJA forbid such a farcical result. Keggi v. Northbrook Prop. & Cas. Ins. Co.,

199 Ariz. 43, 45 ¶ 10 (App. 2000). That is, there is no question that the Initiative

Proponents are “person[s] . . . whose rights, status or other legal relations are affected

by” HB 2244’s unconstitutional directive, and thus they can seek relief therefrom.

A.R.S. § 12-1832.

¶20 Knowing these more modern developments of the UDJA, the State

Defendants [AB at 12-13] hang their hat on Moore v. Bolin, 70 Ariz. 354 (1950).

{00341390.1 } 10
There, the Arizona Supreme Court held that a dispute over a statute that affected the

ability of a sitting tax commissioner to run for governor presented a nonjusticiable

controversy because the commissioner “ha[d] done nothing to bring himself within

the operation of” the challenged statute. Moore, 70 Ariz. at 358.

¶21 But the commissioner’s claim in Moore and the Initiative Proponents’

claims are apples and oranges; while “there is no general constitutional right to seek

or hold public office,” Escamilla v. Cuello, 230 Ariz. 202, 207 ¶ 24 (2012), there is

a clear constitutional right both to legislate by initiative and to have such legislative

efforts subjected to review under “substantial compliance.” Ariz. Const. art. IV, pt.

1, § 1(2); Whitman v. Moore, 59 Ariz. 211, 218 (1942) (“courts [must] liberally

construe initiative requirements and do not interfere with the people’s right to initiate

laws unless the Constitution expressly and explicitly makes any departure from

initiative filing requirements fatal.”); see also Section I.C, infra. These

constitutional implications cry out for early judicial intervention, particularly when

the failure to intervene may well have the effect of precluding the Initiative

Proponents from exercising a form of “core political speech,” Meyer v. Grant, 486

U.S. 414, 421 (1988), in the form of circulating petitions. [See Ruling at 10 ¶ 8

(APPX_091); Tr. Day 2 at 119:6-8 (APPX_168)]

¶22 At bottom, the trial court’s holding and the State Defendants’

burdensome formulation of the ripeness doctrine are both wrong and dangerous. The

{00341390.1 } 11
standard of review applied to petition circulation efforts affects every aspect of the

initiative process, including the very act of beginning such an effort. See, e.g.,

Pederson v. Bennett, 230 Ariz. 556, 559 ¶ 14 (2012) (applying “substantial

compliance” to the title and text submitted by a committee along with its application

for a serial number). A justiciable controversy thus exists between the Initiative

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

effects it will have on their contemplated initiative efforts. The trial court misapplied

existing principles of Arizona law in dismissing the Initiative Proponents’ claims on

ripeness grounds, and should be reversed.

2. The claims are prudentially ripe under analogous principles

of federal law.
¶23 The State Defendants do not respond to – and therefore concede – the

Initiative Proponents’ arguments [OB at 28-32] under the line of federal decisions 1

that describe “prudential ripeness” as an inquiry that turns on “the fitness of the

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

consideration.” Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010). The

Initiative Proponents easily satisfy both queries. Indeed, the State Defendants fail

to address, much less attempt to distinguish, either Wolfson or Initiative and

1
Arizona courts often look to the federal system for guidance on issues of
ripeness and standing. See, e.g., Phelps Dodge Corp. v. Arizona Elec. Power Co-
op., Inc., 207 Ariz. 95, 118 ¶ 94 (App. 2004).

{00341390.1 } 12
Referendum Institute v. Walker (“Walker”), 450 F.3d 1082 (10th Cir. 2006), both of

which reject ripeness arguments that bear a striking resemblance to that raised by

the State Defendants here. This failure to respond is a confession of error that,

standing alone, should dispose of the State Defendants’ argument. Chalpin v.

Snyder, 220 Ariz. 413, 423 n.7 (App. 2008) (“Failure to respond in an answering

brief to a debatable issue constitutes confession of error.”). The State Defendants’

silence aside, the Initiative Proponents do, in fact, meet both of the requirements of

prudential ripeness: their claims are “fit for judicial decision,” and they would suffer

cognizable hardship (in the form of the loss of a constitutional right, the potential

chilling of their initiative efforts, 2 and financial loss) absent a decision on the merits.

¶24 Although Walker is discussed in the Opening Brief, it bears repeating

here because it is nearly on all fours with the case at hand. There, the plaintiffs’

standing and the ripeness of their claims (under the more stringent requirements

imposed by Article III of the U.S. 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

2
Whether it is “speech” generically or the right to legislate by initiative more
specifically, there is constitutionally-protected conduct at issue here that may be
deterred or rendered more difficult as a direct consequence of HB 2244. That is
sufficient to meet the minimal requirements of prudential ripeness.

{00341390.1 } 13
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.

¶25 The Tenth Circuit, en banc, squarely rejected that argument:

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.

Id. at 1098 (emphasis added). So too here in the case of the Initiative Proponents.

Their claims are prudentially ripe because there is no good reason to delay the

adjudication of their constitutional claims, particularly because those claims affect

the right to legislate by initiative on the brink of a general election.

C. The Initiative Proponents’ Claims Are Ripe Because They Have

Already Suffered Injuries.
¶26 In the alternative, if the Initiative Proponents’ claims are not

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

Initiative Proponents, primarily in the form of the loss of their constitutional right to

have their contemplated initiative efforts evaluated under the “substantial

compliance” standard. [OB at 32] The State Defendants’ response is equal parts

stark and startling: they claim “there is no such right,” because when constitutional

{00341390.1 } 14
text “is silent as to the level of scrutiny,” it can be supplied by the courts and

subsequently displaced by the Legislature. [AB at 17-18] In their view, the Arizona

Supreme Court’s pronouncement of the “substantial compliance” standard of review

in Whitman “only reflected its opinion” and did not “announce a constitutional

requirement” because the court used the phrase “we think” in announcing that

standard. [Id. at 18; Whitman, 59 Ariz. at 218 (“We, therefore, think that . . . every

reasonable intendment is in favor of a liberal construction of those requirements and

the effect of a failure to comply therewith”).

¶27 This contention goes in large part to the merits of the Initiative

Proponents’ constitutional claims, discussed further in Section III. But in short, the

claim that a court is not interpreting a constitution when it prescribes a non-textual

level of scrutiny related to a right created by that constitution (and further, that the

legislature has free reign to change that level of scrutiny) has absolutely no basis in

law. In the most obvious of examples, the U.S. Constitution does not prescribe a

level of judicial scrutiny for governmental actions that infringe on fundamental

rights, the judiciary has interpreted the Constitution to mean that such infringements

must satisfy “strict scrutiny,” Nunez by Nunez v. City of San Diego, 114 F.3d 935,

944 (9th Cir. 1997), and Congress could never alter that level of scrutiny by statute,

Glidden Co. v. Zdanok, 370 U.S. 530, 541 (1962) (“Of course, Congress may not by

fiat overturn the constitutional decisions of this Court”).

{00341390.1 } 15
¶28 Similarly, the U.S. Constitution does not explicitly state which

statements to law enforcement are “voluntary” for purposes of the Fifth Amendment,

the U.S. Supreme Court announced the governing principles in Miranda v. Arizona,

384 U.S. 436, 441-42 (1966), and in turn invalidated a statute that purported to

supersede those principles. Dickerson, 530 U.S. at 444 (“Miranda announced a

constitutional rule that Congress may not supersede legislatively.”). The list goes

on and on, but the fundamental principle is constant; under the constitutional

separation of powers, neither Congress nor the Arizona Legislature may

“legislatively supersede . . . decisions interpreting and applying the Constitution.”

Id. at 437.

¶29 Nor is it relevant that the Supreme Court in Whitman stylistically

announced a constitutional rule with the introductory phrase “we think.” Even a

cursory review of Supreme Court decisions – which the State Defendants apparently

bypassed – reveals that in earlier times, the Supreme Court often utilized this

convention in discussing the requirements and application of the Arizona

Constitution. See, e.g, Marquez v. Indus. Comm’n, 110 Ariz. 273, 275 (1974) (using

the phrase when interpreting article XVIII, § 8); Arizona Bd. of Regents v. Harper,

108 Ariz. 223, 225 (1972) (“We think the language of the Constitution refutes this

contention.”); Gorman v. City of Phoenix, 76 Ariz. 35, 40 (1953) (“We think Article

7, Section 2 of the Arizona Constitution was never intended to so limit the power of

{00341390.1 } 16
the legislature over municipalities.”) To say, as the State Defendants do without any

legal support whatsoever, that the Legislature could legislatively overrule these

decisions because of the use of the words “we think” is completely baseless.

¶30 Just as the Supreme Court’s interpretation of a statute becomes part of

the statute, State v. Rios, 225 Ariz. 292, 301 ¶ 31 (App. 2010), so too does its

interpretation of the Arizona Constitution. And so, the Initiative Proponents had a

constitutional right to have their efforts evaluated under the “substantial compliance”

standard, a right that HB 2244 took away. Their claims are ripe on this basis alone.

¶31 Finally, the State Defendants quarrel with the Initiative Proponents’

claim that AzAN had also suffered injury because HB 2244 was already factoring

into its plans to raise funds. Specifically, AzAN was already raising the issue with

potential future funders so that they knew the effort was “going to be a little more

costl[y].” [APPX_170-171] As AzAN’s Executive Director put it, “it’s certainly

affected conversations until now.” [APP_171] Whether AzAN was actively raising

funds at the time is not, as the State Defendants posit [AB at 15-16], the question for

purposes of ripeness and standing. Rather, the relevant question is whether HB 2244

would have any effect on those efforts. Cf. Florida State Conference of N.A.A.C.P.

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

because plaintiffs “reasonably anticipate that they will have to divert personnel and

{00341390.1 } 17
time to educating volunteers and voters on compliance” with a new statute). On that

question, there is no dispute.

D. The Court Should Waive The Ripeness Requirement To Resolve

An Issue Of Statewide Importance.
¶32 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. 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”). If the Court concludes for some reason that the

Initiative Proponents’ claims are not ripe, it should exercise its discretion to waive

the ripeness requirement here. Given the time and resources invested by the parties

in both the trial court and before this Court, and the fact that this issue of statewide

importance is sure to recur, it makes no sense to forestall any further a decision on

the Initiative Proponents’ claims.

II. THIS COURT SHOULD CONSIDER THE UNDERLYING

CONSTITUTIONAL CLAIMS.
¶33 Next, the Court can and should consider the Initiative Proponents’

constitutional claims in the first instance because they are pure issues of law that

require no further factual development. State Farm Mut. Auto. Ins. Co. v. Peaton,

{00341390.1 } 18
168 Ariz. 184, 194 (App. 1990). Indeed, “[t]o refuse to consider th[ese] issue[s]

would be to foster piecemeal litigation.” Id.

¶34 The State Defendants do not distinguish Peaton, and instead proclaim

that “[t]he general rule is that appellate courts will not consider issues that were not

ruled on below.” [AB at 8] That is not a “general rule,” and the cases cited by the

State Defendants instead discuss the uncontroversial (yet inapposite here) rule that

appellate courts will generally not consider issues that were not raised in the trial

court. See, e.g., Harris v. Cochise Health Sys., 215 Ariz. 344, 349 ¶ 17. (App. 2007)

(“[A]n appellate court will not consider issues not raised in the trial court.”).

¶35 Here, the constitutionality of HB 2244 was raised and briefed in the

trial court. Contrary to the State Defendants’ misstatement of law, this Court not

only can, but in fact does rule on issues that have not been decided by the trial court

so long as they were properly raised. It should do so here as well.

III. HB 2244 INVADES THE PROVINCE OF THE JUDICIARY AND

VIOLATES THE SEPARATION OF POWERS.
A. The Legislature Has No Power To Alter The Constitutionally-
Based “Substantial Compliance” Standard Announced By The
Judiciary.
¶36 HB 2244 violates Article III because it overturns decisions of the

Supreme Court interpreting Article IV and prescribes to the judiciary a particular

constitutional interpretation (in the form of a standard of review) going forward. As

set forth in the Opening Brief [at 35-47], this much is true based on a straightforward

{00341390.1 } 19
application of the factors set forth in San Carlos Apache Tribe v. Superior Court

(“San Carlos”), 193 Ariz. 195 (1999). And the State Defendants do not – and indeed,

cannot – dispute with the underlying separation of powers principles that render HB

2244 unconstitutional; “courts 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, 530 U.S. at 437.

¶37 Instead, the State Defendants adopt a dizzying set of related arguments

previewed, at least in part, above. Specifically, they claim that: (1) because the

Constitution is silent as to the level of scrutiny to be given to initiative efforts, the

Legislature has free reign to “supply this direction” irrespective of the judiciary [AB

at 32-33], (2) the judicial “adoption of a particular level of scrutiny” related to a

constitutional right “does not create a constitutional requirement that the courts use

that level of scrutiny” [id. at 34],” and perhaps most incredibly (3) “the application

of a level of scrutiny for reviewing laws . . . is not a constitutional interpretation”

[id. at 35].

¶38 To be clear, the Legislature has no authority whatsoever to supersede

the judiciary’s interpretation of the Arizona Constitution, even if that interpretation

is one announcing new principles or a level of judicial scrutiny where the

Constitution does not specifically provide such direction. Dickerson, 530 U.S. at

{00341390.1 } 20
437 (“Congress may not legislatively supersede our decisions interpreting and

applying the Constitution”) (emphasis added); Glidden Co., 370 U.S. at 541 (“Of

course, Congress may not by fiat overturn the constitutional decisions of this

Court”). Not surprisingly, the Arizona Constitution does not prescribe the level of

judicial scrutiny to be given to a particular constitutional right (here, the right to

legislate by initiative under Article IV). Organic governing documents almost never

do such a thing, and in exercise of the judiciary’s duty to declare what the law is, it

falls on a reviewing court to examine the constitution and determine what is required.

State v. Casey, 205 Ariz. 359, 362 ¶ 8 (2003) (“[I]nterpretation of the state

constitution is, of course, our province.”). Surely, the State Defendants are not

suggesting that Congress could change the level of scrutiny for fundamental

constitutional rights to rational basis because the U.S. Constitution is silent on that

point. Yet that is precisely where the State Defendants’ dangerous arguments lead.

¶39 Relatedly, the suggestion that the “application of a level of scrutiny for

reviewing laws . . . is not a constitutional interpretation” [AB at 35], and that as a

result, HB 2244 poses no harm under Article III is so fundamentally wrong that it is

hardly worth mention. The only cases cited by the State Defendants – McElhaney

Cattle Co. v. Smith, 132 Ariz. 286 (1982) and Robinson v. Hotham, 211 Ariz. 165

(App. 2005) – say no such thing, and the lack of supporting authority is hardly

surprising. This claim also represents an inexplicable about-face by the State

{00341390.1 } 21
Defendants, who admitted below (via the same attorney who signed the Answering

Brief) that “the Arizona Supreme Court interpreted the Constitution as allowing

substantial compliance with initiative petitions.” [Tr. Day 1 (AM) 55:7-9 (opening

statement of J. La Rue) (emphasis added)]

¶40 But more fundamentally, to contend that the substantial compliance

standard is not based on an interpretation of the Arizona Constitution is to ignore

history. Indeed, in announcing that standard, the Supreme Court in Whitman went

to great lengths to begin its analysis by holding unequivocally that it is “bound to

take . . . into consideration” the importance of the initiative power to the framers of

our Constitution and the electorate that approved it. Whitman, 59 Ariz. at 218. And

so, “substantial compliance” was the constitutional rule announced by the Court:

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 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). Nothing the State Defendants say can change the

words of Whitman, or the fact that the constitutional roots of the standard announced

{00341390.1 } 22
in that decision have been reaffirmed by Arizona’s highest court time and time again.

See, e.g., Pedersen, 230 Ariz. at 558 ¶ 7.

¶41 Even if there were some truth to the State Defendants’ narrow view of

constitutional “interpretation” (which there is not), it means nothing. Dickerson

makes clear that under the separation of powers, legislative power does not extend

to “legislatively supersed[ing] [judicial] decisions interpreting and applying the

Constitution.” Dickerson, 530 U.S. at 437. Here, the State Defendants admit that

“[t]he Arizona Supreme Court historically applied substantial-compliance scrutiny

to initiative petitions” based on its reading of the Arizona Constitution [AB at 31],

which is only further proof that their arguments are without merit.

B. A Constitutional Rule Is Not Mere “Common Law” To Be

Replaced At The Legislature’s Whim.
¶42 As below, the State Defendants hang their hat on the idea that HB 2244

is constitutional because it merely “displaced . . . judge-made common law.” [AB

at 37] This notion is based on the State Defendants’ erroneous conclusion that the

“substantial compliance” standard is a run-of-the-mill common law rule which the

Legislature can abrogate or vary when it so pleases. But as detailed in the Opening

Brief [at 41-45] and above, the judiciary’s interpretation of the Arizona Constitution

is not mere “judge-made common law,” but rather a constitutional rule. That fact

alone distinguishes the “substantial compliance” standard from the displacement of

common-law causes of action at issue in Orca Communications Unlimited, LLC v.

{00341390.1 } 23
Noder, 236 Ariz. 180 (2014), the criteria for expert witnesses at issue in Seisinger v.

Siebel, 220 Ariz. 85 (2009), the burden of proof at issue in Valerie M v. Arizona

Department of Economic Security, 219 Ariz. 331 (2009), and the standard of review

at issue in Forde. [AB at 38] That is, none of the common law rules overruled or

altered in those decisions were based on the Supreme Court’s interpretation or

application of the Arizona Constitution like the “substantial compliance” standard

that HB 2244 discards.

¶43 In the end, the constitutional roots of the substantial compliance

standard moot the State Defendants’ remaining arguments about whether that

standard is “procedural” or “substantive.” [AB at 39-44] In a few words, however,

there is no principled reason to distinguish between an appellate standard of review

and one that happens to also be utilized by trial courts. [AB at 39-40] The fact that

“substantial compliance” applies at every stage of judicial review does not move the

needle in determining whether it is “procedural” or “substantive”; Arizona law is

clear that this is a distinction between rules that “provide[] a method for obtaining

redress for the invasion of rights” and those that “create, define, or regulate rights.”

Forde, 233 Ariz. at 575-76 ¶ 146. Just as an appellate standard of review is

procedural because it does not create or define rights, so too is a standard of review

that a trial court must utilize. The State Defendants’ conclusion to the contrary [AB

at 40] is simply wrong.

{00341390.1 } 24
 C. The Legislature’s Conclusion That HB 2244 Is “Good Policy” Is
Irrelevant.
¶44 The State Defendants’ defense of HB 2244 under Article III ends –

quite fittingly – with the improper and unconstitutional motivation behind that

legislation, which they describe as “good policy.” [AB at 44-48] Here, it bears

repeating that HB 2244 is a rare case where the Legislature has enacted an

unconstitutional statute while at the same time expressly stating its unconstitutional

motive. [OB at 45-47] Whatever concerns the Legislature claims to have about the

“integrity” of the initiative process cannot justify HB 2244. As the Supreme Court

has held, substantial compliance “strikes the appropriate balance between protecting

our citizens’ right to initiate laws and the integrity of the election process.”

Pedersen, 230 Ariz. at 559 ¶ 13.

D. HB 2244 Violates Article III.

¶45 The Legislature has the power to enact and create law within

constitutional bounds.” San Carlos, 193 Ariz. at 211 ¶ 37. HB 2244 fails under all

four factors of San Carlos, and thus cannot withstand constitutional scrutiny under

Article III.

IV. HB 2244 VIOLATES ARTICLE IV BECAUSE IT UNREASONABLY

RESTRICTS THE EXERCISE OF THE INITIATIVE POWER.
¶46 HB 2244 also constitutes a direct violation of Article IV for two

reasons, either of which standing alone would be sufficient: (1) HB 2244

“unreasonably hinder[s] or restrict[s]” the Initiative Proponents’ rights under that

{00341390.1 } 25
constitutional provision, and (2) it does not “reasonably supplement[] the

constitutional purpose.” Turley v. Bolin, 27 Ariz. App. 345, 348 (1976).

¶47 First, HB 2244 violates Article IV by unduly restricting the rights of the

Initiative Proponents. As the trial court found, 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]

¶48 The State Defendants disagree, and cite to City of Tucson v. Consumers

for Retail Choice Sponsored by Wal-Mart (“Consumers”), 197 Ariz. 600 (App.

2000) for the proposition that “[h]arder does not equal unreasonable hindrance.”

[AB at 53] At issue in Consumers were the City of Tucson’s additional requirements

for referendum petitions, which certain referendum proponents challenged as

“impermissibly conflict[ing] with . . . state statutes,” and not as constituting a Turley

violation. Id. at 602 ¶ 4. This Court rejected the challenge, and further noted that

the challenger “produced no evidence that compliance with Tucson’s referendum

procedures would prevent or hinder a citizen from circulating a petition or would

unduly burden the right of referendum.” Id. at 604 ¶ 10 (emphasis added). It did

not hold – as the State Defendants misleadingly suggest [at 53] – that “[h]arder does

{00341390.1 } 26
not equal unreasonable hindrance” as a matter of law. And unlike the challenger in

Consumers, the Initiative Proponents adduced a panoply of evidence at trial

demonstrating the burdens that HB 2244 will impose.

¶49 Equally unpersuasive is the State Defendants’ contention that because

no court has ever suggested that the “strict compliance” standard that applies to the

referendum power creates an unreasonable hindrance, it “cannot create one on the

initiative power.” [AB at 51] Perhaps there is also a challenge to be made to that

standard in the specific context of the referendum power, but that is not this case.

The Supreme Court treats the two powers differently (as described in Western

Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426 (1991)), and in drawing that

distinction, has held that the statutes and constitutional provisions governing the

initiative power must be given a liberal construction. The consequences of doing so

will not only unreasonably hinder or restrict the Initiative Proponents’ right to

legislate by initiative, but will also prevent many grassroots citizens’ groups from

being able to exercise that right. [Tr. Day 1 (am) at 80]

¶50 Second, HB 2244 also violates Article IV because it does not

supplement the constitutional purpose. 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. To intentionally curtail the exercise of a fundamental

{00341390.1 } 27
constitutional right is plainly not to “supplement” it (reasonably or otherwise), and

HB 2244 thus cannot survive scrutiny under Article IV. The State Defendants

provide no response to this axiomatic argument, which again constitutes a binding

confession of error. Chalpin, 220 Ariz. at 423 n.7.

¶51 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.

V. THE STATE DEFENDANTS DO NO DISPUTE THE INITIATIVE

PROPONENTS’ ENTITLEMENT TO ATTORNEYS’ FEES.
¶52 In their Opening Brief [at 50], the Initiative Proponents argue that they

are entitled to an award of attorneys’ fees under the private attorney general doctrine

(“PAGD”), a claim the State Defendants do not dispute. As a result, those fees

should be awarded both for work in this Court and in the trial court. See Dobson v.

State, 233 Ariz. 119, 124 ¶¶ 18-19 (2013) (awarding PAGD fees where “[t]he State

[did] not dispute that a fee award would be appropriate if Petitioners prevail.”).

Regardless, the Initiative Proponents are entitled to fees under PAGD for the reasons

set forth in their Opening Brief.

Conclusion
¶53 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. The Judgment below should be reversed and judgment,

{00341390.1 } 28
including an award of attorneys’ fees, should be entered in favor of the Initiative

Proponents.

Respectfully submitted this 16th day of January, 2018.

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

{00341390.1 } 29