Attorneys for Plaintiffs/Appellants

Transcription

1 ARIZONA COURT OF APPEALS DIVISION ONE MATTHEW G. MADONNA, an Arizona citizen; SANDRA L. BAHR, an Arizona citizen; ANIMAL DEFENSE LEAGUE OF ARIZONA, an Arizona non-profit corporation; FRIENDS OF ASBA, INC., an Arizona nonprofit corporation; ARIZONA ADVOCACY NETWORK, an Arizona non-profit, corporation; PLANNED PARENTHOOD ADVOCATES OF ARIZONA, an Arizona non-profit corporation, v. STATE OF ARIZONA, and Plaintiffs/Appellants, Defendant/Appellee, 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV Maricopa County Superior Court No. CV APPELLANTS COMBINED OPENING BRIEF AND APPENDIX Roopali H. Desai (024295) Keith Beauchamp (012434) D. Andrew Gaona (028414) COPPERSMITH BROCKELMAN PLC 2800 North Central Avenue, Suite 1200 Phoenix, Arizona Telephone: (602) rdesai@cblawyers.com kbeauchamp@cblawyers.com agaona@cblawyers.com Timothy M. Hogan (004567) ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST 514 West Roosevelt Street Phoenix, Arizona Telephone: (602) thogan@aclpi.org Attorneys for Plaintiffs/Appellants { }

2 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 A. The Initiative Proponents Claims Are Prudentially Ripe The claims are prudentially ripe under Arizona law The claims are prudentially ripe under federal law 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 II. HB 2244 Invades the Province of the Judiciary and Violates the Separation of Powers A. The Substantial Compliance Standard Is Based on the Judiciary s Interpretation of the Arizona Constitution B. HB 2244 Fails Under Each of the San Carlos Factors The essential nature of the power exercised is judicial The Legislature s degree of control in exercising the power is non-existent The Legislature s stated objective in enacting HB 2244 evidences its unconstitutional motives { } i

3 4. The practical consequences of HB 2244 render it unconstitutional C. HB 2244 Violates Article III 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 { } ii

4 TABLE OF CITATIONS Page(s) Cases Arizona Ass n of Providers for Persons with Disabilities v. State, 223 Ariz. 6 (App. 2009) Arizona Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467 (2009) Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002 (9th Cir. 2003) Arnold v. Ariz. Dep t of Health Servs., 160 Ariz. 593 (1989) Baresma v. Susong, 156 Ariz. 309 (1988) Bennett v. Brownlow, 211 Ariz. 193 (2005)... 28, 34 California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) Canyon del Rio Inv rs, L.L.C. v. City of Flagstaff, 227 Ariz. 336 (App. 2011) State v. Casey, 205 Ariz. 359 (2003) State ex rel. Davis v. Osborne, 14 Ariz. 185 (1912) Dickerson v. United States, 530 U.S. 428 (2000)... 2, 40, 41 Direct Sellers Ass n v. McBrayer, 109 Ariz. 3 (1972) { } iii

5 Dobson v. State ex rel. Comm n 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) State v. Forde, 233 Ariz. 543 (2014) Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482 (2006)... 2, 21, 35, 40 Glidden Co. v. Zdanok, 370 U.S. 530 (1962) Goodyear Farms v. City of Avondale, 148 Ariz. 216 (1986) Governale v. Lieberman, 226 Ariz. 443 (App. 2011) 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) Kerby v. Griffin, 48 Ariz. 434 (1936)... 37, 41 United States v. Klein, 80 U.S. 128 (1871) Kromko v. Superior Court, 168 Ariz. 51 (1991)... 38, 49 State v. McMahon, 201 Ariz. 548 (App. 2002) { } iv

6 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) Meyer v. Grant, 486 U.S. 414 (1988)... 3, 30 Miranda v. Arizona, 384 U.S. 436 (1966) United States v. Morrison, 529 U.S. 598 (2000) 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) Pool v. Superior Court, 139 Ariz. 98 (1984) Rios v. Symington, 172 Ariz. 3 (1992) San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195 (1999), HB passim Sears v. Hull, 192 Ariz. 65 (1998) Seisinger v. Siebel, 220 Ariz. 85 (2009)... 43, 44, 45 Sklar v. Town of Fountain Hills, 220 Ariz. 449 (App. 2008) State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184 (App. 1990) { } v

7 Town of Gilbert v. Maricopa Cty., 213 Ariz. 241 (App. 2006) 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 Commc ns, Inc. v. Ariz. Corp. Comm n, 197 Ariz. 16 (App. 1999)... 23, 25 W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426 (1991) Whitman v. Moore, 59 Ariz. 211 (1942)... 1, 37, 38, 41 Wilhelm v. Brewer, 219 Ariz. 45 (2008) 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) Ariz. Const. art. XXI A.R.S A.R.S A.R.S (D)... 5 A.R.S (A)(1)... 6 A.R.S { } vi

8 A.R.S A.R.S (B) A.R.S (D) House Bill passim Other Authorities Ariz. R. Civ. App. P. Rule 21(a) 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 { } vii

9 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 State s founders, the Arizona Supreme Court ( Supreme Court ) has held that 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. 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 { } 1

10 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 judiciary s 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, (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 people s 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 { } 2

11 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 court s 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 court s holding implies (nor is it jurisdictional), and it does not require actual enforcement of a provision affecting a party s rights; the mere threat of enforcement is sufficient, particularly where (as here) parties seek declaratory relief. Further, in cases such as this that { } 3

12 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 court s 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 court s own factual findings, it should be reversed. The Initiative { } 4

13 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 (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, [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 { } 5

14 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 (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: 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 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 { } 6

15 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, { } 7

16 (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 [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_ )] 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_ )] 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_ )] 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 { } 8

17 environment. [Ruling at 6 6 (APPX_087); Tr. Day 1 (PM) at 21:23-4, 22:2-5 (APPX_ )] 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_ )] Ms. Bahr s 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_ )] 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, { } 9

18 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 2244 s 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), (APPX_ )] 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 { } 10

19 initiative petitions to check validity rates. [Ruling at (APPX_ ); Tr. Day 1 (PM) at (APPX_ )] 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 Arizona s 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 Arizona s 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_ )] At least one { } 11

20 campaign consultant is already involved in those discussions. [Id.] Based on ADLA s 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_ ), 17:5-13 (APPX_065), 20:20-21:5 (APPX_ ), 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_ )] FOA has been involved in a statewide initiative in the past; specifically, Proposition 204 in FOA contributed funds to the committee formed to run that initiative, being directly involved in the committee s 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 { } 12

21 FOA Initiative ) that would appear on the ballot in November [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 (APPX_ )] 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 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 Arizona s commitment to democracy. [Ruling at (APPX_ ); Tr. Day 2 at (APPX_ )] 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 AzAN s former executive { } 13

22 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_ )] 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 [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 AzAN s 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)] { } 14

23 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_ )] 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) AzAN s independent research into the risks associated with proceeding under a strict compliance standard, and (2) conversations AzAN s 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_ ), 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 [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 { } 15

24 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 AzAN s mission. [Tr. Day 2 at 124:13-125:4 (APPX_ )] 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 (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 (APPX_092); Tr. Day 1 (AM) at 66:24-67:1 (APPX_ ), 70:24-71:5 (APPX_ ), 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 Court s application of the strict compliance and substantial compliance standards. [Ruling at (APPX_092); Tr. Day 1 (AM) at 68 (APPX_102), 72:19-24 (APPX_105)] { } 16

25 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 (APPX_093); Tr. Day 1 (AM) at (APPX_ )] 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 (APPX_093); Tr. Day 1 (AM) at (APPX_ )] 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 (APPX_093); Tr. Day 1 (AM) at (APPX_ )] 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, { } 17

26 lobbying, politics and strategic messaging. [Ruling at (APPX_094)] Mr. Coughlin s experience leaves no doubt in his mind that opponents of initiative efforts will use HB 2244 s heightened standard to prevent initiative measures that have significant public support from gaining access to the ballot. [Ruling at (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 (APPX_ ); Tr. Day 1 (PM) at (APPX_ )] 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 2244 s imposition of a strict compliance standard will have no effect on the tasks carried out by the Secretary of State s office in the context of a statewide initiative. [Tr. Day 1 (PM) at (APPX_ )] But notwithstanding the Secretary of State s 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 { } 18

27 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 State s office is legally sufficient [id. at 24:2-25:15 (APPX_ )], (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_ )], (e) the location of the petition serial number on circulated petition sheets [id. at 31:7-32:16 (APPX_ )], (f) the sufficiency of petition circulator registrations [id. at 32:19-34:22 (APPX_ )], (g) the legality of the Secretary of State s decision to strike (or not strike) petition signatures for omitting information required by A.R.S [id. at 36:22-37:4 (APPX_ )], and (h) the legal sufficiency of petition circulator affidavits found on circulated petition sheets [id. at 37:5-40:10 (APPX_ )]. 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 Court s 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 { } 19

28 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 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, (App. 2012) (ripeness); State v. McMahon, 201 Ariz. 548, (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 plaintiff s 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 court s factual findings unless they are clearly erroneous. In re U.S. Currency in Amount of $26,980.00, 199 Ariz. at { } 20

29 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? { } 21

30 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 court s 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, (App. 2006) (citation omitted), { } 22

31 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, (App. 2004); U.S. West Commc ns, Inc. v. Ariz. Corp. Comm n ( 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 court s 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. { } 23

32 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 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 Arizona s 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 This Court rejected this argument, noting that the clause s 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. { } 24

33 the trial court. U.S. West, 197 Ariz. at 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 Commission s argument that the provider s 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 Stewart and U.S. West demonstrate this Court s common-sense application of Arizona s 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 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, (App. 2000). The trial court s 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 { } 25

34 a breach or injury. Canyon del Rio Inv rs, L.L.C. v. City of Flagstaff, 227 Ariz. 336, (App. 2011). The Initiative Proponents pre-enforcement action was thus entirely proper, and the trial court s holding to the contrary improperly turns the liberal construction of the UDJA on its head. There is not, as the trial court s 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 court s 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 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 ; { } 26

35 41 Consistent with Dobson, the trial court s 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 (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_ ], 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 { } 27

36 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 III s 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, (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. { } 28

37 (citing US West Commc ns 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 court s 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 { } 29

38 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 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 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 Even more on point is the Tenth Circuit s 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. { } 30

39 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 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 { } 31

40 because those claims affect the people s 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_ ] 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 Ass n of Providers for Persons with Disabilities v. State, 223 Ariz. 6, (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, (11th Cir. 2008) (finding concrete injury based on a showing that plaintiffs reasonably anticipate that they will have { } 32

41 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 This alone is sufficient to reverse the trial court. C. The Ruling Sets Forth a Novel and Burdensome Ripeness Standard. 54 The trial court s 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 court s formulation of ripeness, { } 33

42 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 , which means that ripeness is a requirement that can be waived by courts when appropriate. Cf. Sears v. Hull, 192 Ariz. 65, (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 { } 34

43 only of the importance of the people s reserved power to legislate by initiative, but also of the fact that HB 2244 is a dangerous affront to the judiciary s power to declare what the constitution requires. Forty-Seventh Legislature, 213 Ariz. at II. HB 2244 INVADES THE PROVINCE OF THE JUDICIARY AND VIOLATES THE SEPARATION OF POWERS 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 judiciary s performance of its duties, San Carlos Apache Tribe v. Superior Court ( San Carlos ), 193 Ariz. 195, (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. { } 35

44 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 Legislature s degree of control in exercising the power; (3) the Legislature s objective; and (4) the practical consequences of the action. San Carlos, 193 Ariz. at A proper consideration of the historical importance of the initiative power and these factors leads to only one conclusion: HB 2244 usurps the judiciary s 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 Judiciary s 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 Court s interpretation of the Arizona Constitution. The historical development of that standard is critical context to understand HB 2244 s 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 { } 36

45 important to be found therein. Whitman, 59 Ariz. at 218. Relevant here, the people s 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, (2012) ( Arizona has a strong policy supporting the people s 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, (1991). { } 37

46 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 (emphasis added) (citation omitted). 62 In Kromko v. Superior Court, 168 Ariz. 51, (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 , 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 ( [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 { } 38

47 Court s refusal to abandon that constitutional interpretation was more detailed and express: [W]e decline Wilhelm s invitation to revisit our standard of substantial compliance review.... Wilhelm argues that this Court s 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, (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 { } 39

48 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, (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 2244 s particular variety of usurpation of the judiciary s constitutionallycommitted 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 (applying United States v. Klein, 80 U.S. 128 (1871)). { } 40

49 statements had been given warnings pursuant to Miranda v. Arizona, 384 U.S. 436, (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 The same holds true here. That is, because the substantial compliance standard arises out of the Arizona Supreme Court s decisions interpreting the Arizona Constitution in Kerby, Whitman, and their progeny, the Legislature s 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 Legislature s degree of control in exercising the power is non-existent. 68 The second San Carlos factor turns on the legislature s 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 judiciary s power to declare what Article IV requires, the Legislature unconstitutionally took complete control over that power. San Carlos, 193 Ariz. at Below, the State Defendants posited that HB 2244 was a valid exercise of the Legislature s lawmaking authority because the fact that a constitutional { } 41

50 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 Ass n 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 ), the font size of the title and text that must be attached to an initiative petition (A.R.S (B)), and the text of the affidavit that must be completed by the circulator (A.R.S (D)). Nothing about these requirements conflicts with the Arizona Constitution, so they constitute a legitimate exercise of the Legislature s authority. See, e.g., Direct Sellers Ass n, 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 { } 42

51 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 people rights 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 judiciary s 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. { } 43

52 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 There, though a conflict existed, the statute prevailed because it touched primarily on substance, rather than procedure. Id. at But the judiciary s interpretation of the Arizona Constitution is not mere judge-made common law, and Seisinger cannot save HB On the contrary, Seisinger highlights HB 2244 s 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, (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. { } 44

53 judiciary s 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 Legislature s stated objective in enacting HB 2244 evidences its unconstitutional motives. 75 The third San Carlos factor turns on the Legislature s 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 Legislature s 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 { } 45

54 necessarily make it so. ). And in any event, the Legislature s 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 Legislature s 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 See Arizona Early Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, (2009) (explaining that the VPA s 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 people s 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 people s check on its power via their enactment of the VPA. And if the Legislature believes strongly enough in its position regarding the { } 46

55 wisdom of the VPA, Article XXI of the Arizona Constitution provides it with two avenues through which to seek the people s approval to repeal that constitutional provision. But what is not proper is the end-run around those procedures and protections embodied in HB The Legislature s 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 Legislature s 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 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. { } 47

56 III. HB 2244 VIOLATES ARTICLE IV BECAUSE IT UNREASONABLY RESTRICTS THE EXERCISE OF THE INITIATIVE POWER HB 2244 s 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 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. { } 48

57 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 ( 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 court s 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. { } 49

58 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 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 attorney s 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. Dep t 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 Court s remand to the superior court include an express direction that it award reasonable attorneys fees incurred for the now-completed proceedings before that court. { } 50

59 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 Legislature s way. The Legislature has plainly overstepped its bounds, and this Court as part of a long and proud judicial tradition of protecting the people s 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, 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 { } 51

60 TABLE OF CONTENTS Excerpts of Record ROA Description Page Nos. 18 House Bill 2244 APPX_ Stephanie Nichols-Young Deposition Excerpts (06/09/17) 68 Matthew G. Madonna Deposition Excerpts (06/02/17) 82 Minute Entry Ruling Findings of Fact and Conclusions of Law (08/09/17) Transcript of Proceedings Day 1 (am) Transcript of Proceedings Day 1 (pm) Transcript of Proceedings Day 2 APPX_ APPX_ APPX_ APPX_ APPX_ APPX_ { } APPX_052

61 FILED MICHELE REAGAN SECRETARY OF STATE APPX_053

62 ~l [i H.B ~ t ~ 1 ~ 2 t t 3 < 4 5 ~ 6 ll 7 ~ 8 ~ 9 E ~~ i~ 15 :; "' 16 *: 17 ~~ 18. : ~ 21 '1 22 :1 l 23 ~ ~l 24., :: :: 25 ~: : ~ 31 :, :~ Be it enacted by the Legislature of the State of Arizona: Section 1. Title 19, chapter 1, article 1, Arizona Revised Statutes, is amended by adding section , to read: 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 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 Sec. 2. Title 19, chapter 1, article 2, Arizona Revised Statutes, is amended by adding section , to read: 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. Sec. 3. Legislative findings: purpose A. The legislature finds that: 1. The Constitution of Arizona provides voters with the ability to propose new laws or constitutional amendments through the initiative process. 2. Courts have required strict compliance where a legislative tool is considered an "'extraordinary' power... that permits a 'minority to hold up... legislation [that] may well represent the wishes of the majority."' See Perini Land & Dev. Co. v. Pima Cty., 170 Ariz. 380, 383 (1992) (quoting W. Devcor. Inc. v. City of Scottsdale, 168 Ariz. 426, 429 (1991)); see also Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5 (1972). 3. Arizona's Voter Protection Act, enacted in 1998 as Proposition 105, requires a three-fourths vote to amend any voter-approved initiative. 4. 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. 5. 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. See Perini Land & Dev. Co. v. Pima Cty., 170 Ariz. 380, (1992); see also Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5 (1972) APPX_054

63 -1 j.. -. H. B ~l : ~~ :~~ :: [~. ~= ~~. j [~ 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 i mportance of initiatives in this state. Cf. W. Devcor. Inc. v. City of Scottsdale, 168 Ariz. 426, 429 (1991) (citing Cottonwood Dev. v. Foothi 11 s Area Coal. of Tucson. Inc., 134 Ariz. 46, 49 (1982)). B. Based on the findings pr ovided in subsection A of this section, the legislature ' s purpose _in adopting this act includes the following : 1. Requiring that statewide initiative measures strictly comply with constitutional and statutory requirements. 2. Requiring that persons circulating and submitting initiative petitions be held to the same standard of constitutional and statutory compliance as those persons circulating and submitting referendum petitions. APPROVED BY THE GOVERNOR APRIL 14, IN THE OFFICE OF THE SECRETARY OF STATE APRIL 14, _ APPX_055

64 Passed the House ~ ~, Passed the Senate A? r; \ \ 2 ' 20...:... l '-=----- by the following vote: 5~f:f _. Ayes, by the following vote: /_.t... ~ Ayes, 0 Nays, \ Not Voting i. Nays, G"""J Not Voting ~~~ ~ D-k ECUTIVE DEPARTMENT OF ARIZONA OFFICE OF GOVERNOR :i at Secretary to the Governor ~day of 1 M EX TIVE DEPARTMENT OF ARIZONA OFFI F SECRETARY OF STATE H.B Secretary of State APPX_056

65 HOUSE CONCURS IN SENATE AMENDMENTS AND FINAL PASSAGE --#A ~~ ~'3~_,20 17, by the following vote: _ 3""' Ayes, a er of the House -}--U,. L EXECUTIVE DEPARTMENT OF ARIZONA OFFICE OF GOVERNOR This Bill was received by the Governor this _ I (S day of ftp V\,\,20 11, at 1 ~!)_ 3 o'clock r M ~-- Approved this._ f _Ll~_'tA... day of l\q4---'-- (('--"---- I _. 20R. secretary to the Governor at n~.~,k P. M. ---p~g.. '"'"CJ - Governor of Arizona EXECUTIVE DEPARTMENT OF ARIZONA OFFICE OF SECRETARY OF STATE This Bill was received by the Secretary of State H.B this \-\ day of ~ \ \, 201Z_, at L\:3'2- o'clock.\) M. M\~ ~/i. ~e~:;?,stato APPX_057

66 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY MATTHEW G. MADONNA, et al., ) ) Plaintiffs, ) ) v. ) No. CV ) STATE OF ARIZONA, ) ) Defendants, ) ) and ) ) STEVE YARBROUGH and J.D. MESNARD, ) in their official capacities ) respectively as President of the ) Arizona State Senate and Speaker of ) the Arizona House of ) Representatives, ) ) Statutory Intervenor ) Defendants. ) ) DEPOSITION OF STEPHANIE NICHOLS-YOUNG Phoenix, Arizona June 9, 2017; 1:31 p.m. Glennie Reporting Services, LLC 1555 East Orangewood Avenue Phoenix, Arizona Prepared by: Janet Hauck, RPR Arizona CR No APPX_058

67 Stephanie Nichols-Young - 06/09/ A. I am. 2 Q. And as an attorney do you provide legal advice 3 to ADLA? 4 A. Before I was president I did, and I suppose I 5 do on occasion, but I don't represent them in litigation. 6 Q. Okay. What about for -- well, let me lay a 7 little bit of foundation. Does ADLA participate in 8 initiative campaigns? 9 A. Yes. 10 Q. All right. For initiative campaigns do you 11 provide legal advice to ADLA? 12 A. I would say I'm on it -- yes, I guess I have. 13 And I apologize, but I've been involved in initiatives 14 involving different organizations. So I'm not sure the 15 one that I'm thinking of where I provided legal advice 16 whether I was the primary attorney. So that's why I'm 17 hesitating a little bit. 18 Q. I understand. Well, when was the last time 19 ADLA participated in an initiative campaign? 20 A. That would have been Humane Farming in -- it 21 was either 2004 or Q. And it was Humane Farming? 23 A. Mm-hmm. 24 Q. All right. And what role did ADLA take in that 25 initiative? Glennie Reporting Services, LLC APPX_059

68 Stephanie Nichols-Young - 06/09/ A. We were on the steering committee. We 2 recruited volunteers. We just were involved in day-to-day 3 efforts. 4 Q. All right. And did you provide legal advice to 5 ADLA in that capacity? 6 A. I suppose I did to ADLA, but I did not to the 7 committee. 8 Q. Okay. And with respect to ADLA, has it been 9 involved in any other initiative campaigns besides Humane 10 Farming in, say, the last ten years? 11 A. Okay. 12 Q. Okay. And is ADLA currently involved in any 13 initiative campaigns for future election cycles? 14 MS. DESAI: Objection. 15 Q. BY MR. BROWN: You can go ahead. 16 A. We are involved in discussions. Nothing has 17 been filed yet, but yes, we are involved in the planning 18 stages. 19 Q. And you just said that you're involved in the 20 planning stages. At what stage is ADLA at in terms of a 21 future initiative campaign? 22 A. We're in conversations, and I would call it the 23 planning stage. 24 Q. What role would ADLA take in this future 25 initiative? Glennie Reporting Services, LLC APPX_060

69 Stephanie Nichols-Young - 06/09/ A. That's part of the conversation that we're 2 having. 3 Q. All right. Is it fair to say that, for 4 purposes of this future initiative campaign, that you're 5 unaware of any professionals having been hired at this 6 point? 7 MS. DESAI: Objection. 8 THE WITNESS: I'm not sure I understand the 9 question. 10 Q. BY MR. BROWN: Well, let me take a step back. 11 Is ADLA the only group involved with this 12 initiative campaign that we're talking about? 13 A. No. 14 Q. All right. There are others? 15 A. Yes. 16 Q. Are you aware of whether any professionals have 17 been hired to provide advice to the initiative campaign? 18 A. Yes. 19 Q. Who has been hired? And let me say this. I 20 don't need names. What I want is, is it an attorney? Is 21 it a consultant? What are we talking about? 22 A. It's a consultant. 23 Q. All right. How many consultants have been 24 hired? 25 A. Well, I'm aware -- Glennie Reporting Services, LLC APPX_061

70 Stephanie Nichols-Young - 06/09/ campaign happens, when would it go on the ballot? 2 A Q. Okay. And it's a statewide initiative? 4 A. That's correct. 5 Q. For ADLA what is its mission? 6 A. To protect and defend Arizona's animals. 7 Q. Okay. Does it have any other missions? 8 A. No, but I should say, in order to protect 9 animals, a subgoal under that has always been to protect 10 initiative rights because we view it as one of the most 11 important tools to protect animals in Arizona because of 12 the history. 13 Q. What do you mean by because of the history? 14 A. Because of the changes that have been made to 15 Arizona law through initiative process. 16 Q. Okay. Have you reviewed the First Amended 17 Complaint? 18 A. I have reviewed it -- it's been a quick 19 review -- probably the day it was filed. So yeah. 20 MR. BROWN: Do you have a copy of the -- I 21 think we have it right here. 22 MS. DESAI: Well, these are our exhibits. 23 MR. BROWN: Oh, I'm sorry. I thought that 24 was the MS. DESAI: That's fine. Glennie Reporting Services, LLC APPX_062

71 Stephanie Nichols-Young - 06/09/ Q. Tell me why. 2 A. Well, it's a very arduous task to go out and 3 gather signatures. One of the things that right away 4 would happen is we carefully train volunteers to go 5 through the signatures on the initiatives, how they gather 6 them, making sure people are registered to vote, that they 7 break them down by county, that people sign and put all 8 their information, but -- 9 Again, I haven't done one for a while, but, 10 you know, there was a little bit of comfort knowing that 11 if a signature gatherer didn't realize that someone had 12 signed on the where-you-print-your-name block and printed 13 their name on the sign block or put their city where their 14 ZIP code should have been, at least you knew those would 15 be okay and those would be accepted under substantial 16 compliance. 17 Under strict scrutiny, I don't think that's 18 the case. So the degree of additional staff, just 19 additional time, frankly, the process of just preparing 20 the petitions -- or I mean, you know, preparing your 21 ballot to file and the petitions is a very nerve-wracking 22 process. 23 So also, even though we always would have 24 so many people review it for so many reasons, and one of 25 those reasons, of course, is making sure the font is Glennie Reporting Services, LLC APPX_063

72 Stephanie Nichols-Young - 06/09/ right, the margins are right, but that process will even 2 be more nerve wracking now. So I would think you would 3 need more legal advice up front, you would need more 4 people to review it, and you would want -- as far as just 5 the review for physical compliance, I'll call it, the font 6 size, the margins, all that stuff, you would have to find 7 the most anal retentive people you know, and you would 8 want about 30 of them. 9 Q. Anything else? 10 A. That's all I can think of off the top of my 11 head. 12 Q. If you can think of anything else as we're just 13 talking through this, interrupt and let me know that you 14 thought of another one, okay? 15 A. I will. 16 Q. I just want to be fair to you and make sure we 17 cover everything, okay? 18 All right. Now, let's talk about this. 19 First of all, let me ask you, you would agree with me that 20 you have had no specific discussions with any attorneys 21 that will be providing advice to this future initiative 22 campaign about the impact 2244 would have on their work 23 for the campaign, true? 24 MS. DESAI: Objection. 25 THE WITNESS: I believe that I have, and I Glennie Reporting Services, LLC APPX_064

73 Stephanie Nichols-Young - 06/09/ adequate expertise where I would be willing to take it 2 pro bono. I think I would have to refer it to someone who 3 has election expertise and practices in that area all the 4 time. 5 Q. When you prepare to work and when you work on 6 an initiative campaign you endeavor to comply with every 7 requirement set forth in the statutes, true? 8 MS. DESAI: Objection. 9 THE WITNESS: I do, but again, when you're 10 part of a team you kind of carve out where you feel your 11 expertise is and what niches you are taking. There are 12 less things I would be comfortable taking if this law goes 13 into effect. 14 Q. BY MR. BROWN: And we'll talk about those. 15 With respect to -- and let's break this 16 down into little pieces. What is the first thing you do 17 to kick off an initiative campaign? 18 MS. DESAI: Objection. 19 THE WITNESS: I don't know that there's a 20 first thing you do because there's so many moving parts 21 and there's so many things you have to do simultaneously. 22 I think you have to -- well, I'll leave it there and then 23 let you ask the next question. 24 Q. BY MR. BROWN: All right. What's the first 25 official thing you have to do to qualify for the ballot as Glennie Reporting Services, LLC APPX_065

74 Stephanie Nichols-Young - 06/09/ they're a qualified elector in Arizona. They may have 2 made some technical mistake, but they're still a 3 registered voter and they signed the petition. So that is 4 substantial compliance. 5 Q. BY MR. BROWN: And that's your understanding of 6 substantial compliance? 7 A. Well, I mean, there's all kinds of ways. I 8 mean, I haven't looked at those cases in years, but, you 9 know, there's tons of cases on it. There's all kinds of 10 ways that, as long as someone made a good faith effort and 11 they complied, the person is a qualified elector, the 12 premise is that citizen should have a right to have their 13 signature count. 14 Q. You would agree with me that under a 15 substantial compliance standard as a participant in an 16 initiative campaign, you make a good faith effort to 17 comply completely with every statutory requirement, true? 18 MS. DESAI: Objection. 19 THE WITNESS: Of course. 20 Q. BY MR. BROWN: All right. Now, with respect to 21 the application that's got to be filed with the Secretary 22 of State to kind of kick off the initiative campaign, 23 again, you've testified that you would do your best to 24 fill that out as completely as possible under any 25 standard, true? Glennie Reporting Services, LLC APPX_066

75 Stephanie Nichols-Young - 06/09/ MS. DESAI: Objection. 2 THE WITNESS: I testified I would do my 3 best, but I would also have other people involved and more 4 people involved under the higher standard because the 5 stakes are so high. 6 Q. BY MR. BROWN: All right. Let's talk about 7 after you file an application with the Secretary of State 8 you get a number. Were you aware of that? 9 A. I testified to that earlier if you were 10 listening. 11 Q. Did you? 12 A. Yes, I did. 13 Q. Okay. Well, I didn't remember you getting that 14 detailed, but thank you for the reminder. 15 What happens after that? 16 MS. DESAI: Objection. 17 THE WITNESS: I can't remember the exact 18 process, but the petitions are returned, and then the 19 campaign has to have them printed per the specifications 20 with the petition number on them. 21 Q. BY MR. BROWN: All right. So an initiative 22 petition is prepared, true? 23 A. Yes. 24 Q. How does HB 2244 deal with initiative 25 petitions? Glennie Reporting Services, LLC APPX_067

76 Stephanie Nichols-Young - 06/09/ You know, it just kind of depended on what we could get. 2 Q. BY MR. BROWN: All right. And is it fair to 3 say, Stephanie, that right now you're not really in the 4 know as it relates to what kind of cushion is needed to 5 qualify for the ballot? 6 MS. DESAI: Objection. 7 THE WITNESS: Well, I think -- a couple 8 things. With strict -- sorry. I always want to say 9 strict scrutiny. Have you guys found yourselves doing 10 that? 11 With strict compliance, you would have to 12 get more. You would just have to. 13 Q. BY MR. BROWN: All right. We'll talk about 14 that in a minute, but back to my question. 15 A. I'm sorry. I thought that was your question. 16 Q. It wasn't. My question was whether you're 17 currently in the know as to what the cushion needs to be 18 under current law. Because you'd agree with me, 2244 is 19 not law yet, right? 20 A. Right. 21 Q. You understand that? 22 A. I do understand that. 23 MS. DESAI: Objection. 24 Q. BY MR. BROWN: All right. So with respect to 25 the current law, what is the cushion that initiative Glennie Reporting Services, LLC APPX_068

77 54 1 STATE OF ARIZONA ) ) 2 COUNTY OF MARICOPA ) 3 BE IT KNOWN that I took the foregoing deposition pursuant to Notice; that the witness was duly sworn by 4 me; and that said transcript is a full, true, and accurate record of the proceedings; that the proceedings 5 were taken down by me in shorthand and thereafter reduced to print under my direction; that I have acted in 6 compliance with ACJA I CERTIFY that I am in no way related to any of the parties hereto nor am I in any way interested in the 8 outcome hereof. 9 Pursuant to request, notification was provided that the deposition is available for review and 10 signature. 11 Dated this 14th day of June, Janet Hauck, RPR Certified Reporter 15 Arizona CR No I CERTIFY that GLENNIE REPORTING SERVICES, LLC, has complied with the ethical obligations set forth in 18 ACJA GLENNIE REPORTING SERVICES, LLC Registered Reporting Firm 24 Arizona RRF No. R Glennie Reporting Services, LLC APPX_069

78 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY MATTHEW G. MADONNA, et al., ) ) Plaintiffs, ) ) v. ) No. CV ) STATE OF ARIZONA, ) ) Defendants, ) ) and ) ) STEVE YARBROUGH and J.D. MESNARD, ) in their official capacities ) respectively as President of the ) Arizona State Senate and Speaker of ) the Arizona House of ) Representatives, ) ) Statutory Intervenor ) Defendants. ) ) DEPOSITION OF MATTHEW G. MADONNA Phoenix, Arizona June 2, 2017; 1:30 p.m. Glennie Reporting Services, LLC 1555 East Orangewood Avenue Phoenix, Arizona Prepared by: Janet Hauck, RPR Arizona CR No APPX_070

79 Matthew G. Madonna - 06/02/ MATTHEW G. MADONNA, 2 called as a witness herein having been first duly sworn by 3 the Certified Reporter to tell the whole truth and nothing 4 but the truth, was examined and testified as follows: EXAMINATION 8 BY MR. CANTELME: 9 Q. Mr. Madonna, could you state your name for the 10 record, please. 11 A. Matthew G. Madonna. 12 Q. And address, sir, please. 13 A East Riviera Drive. 14 Q. Current employment? 15 A. Retired. 16 Q. What was your last occupation? 17 A. President and CEO of the American Cancer 18 Society Southwest Division, Inc. 19 Q. How many years did you spend there? 20 A. In that office '89 to '03. So about 14 years. 21 Q. When did you retire? 22 A Q. Let me go over a few ground rules, if I might. 24 I want to keep it as simple and straightforward as we can. 25 I will do my best to give you time to answer my questions, Glennie Reporting Services, LLC APPX_071

80 Matthew G. Madonna - 06/02/ and I would ask you to please give me time to articulate 2 my questions, because we can't be talking over each other 3 for benefit of the reporter. 4 If I ask you a question that's not clear to 5 you, do me a favor, please, and ask me to rephrase it. 6 I'd be happy to do that. If you feel as though you need 7 to take a break, that would be fine. Just let me know, 8 but I would ask that you answer any pending question 9 before we take a break, okay? 10 A. Mm-hmm. 11 Q. Are you good with all that? 12 A. Yes. 13 Q. The last rule, your answers have to be audible. 14 And that is a nod or a shake or uh-huhs, huh-uhs is hard 15 for her to record. 16 A. Got it. 17 Q. So better yes or no or otherwise verbally. 18 Okay. That said, sir, would you briefly 19 give me your experience and background in running 20 initiative campaigns? 21 A. For the last 24 years I've been involved in a 22 series of initiatives at the state level, at the county 23 level, and at the municipality level in Arizona. 24 Q. State, county, and municipality? 25 A. Correct. Glennie Reporting Services, LLC APPX_072

81 Matthew G. Madonna - 06/02/ Q. Have you ever, sir, in those 24 years, been the 2 manager or chief executive officer, the person that runs 3 the campaign? 4 A. No. 5 Q. Can you describe the roles that you have served 6 in such campaigns in the last 24 years? And what I'm 7 after, I'm trying to find your experience level in doing 8 this sort of thing. 9 A. The first two state-wide initiatives that I was 10 involved in I was a member of the campaign committee. The 11 third state-wide initiative I was a member of an advisory 12 board. The various municipal or county initiatives I 13 was -- in my capacity with the American Cancer Society I 14 was helping cities and counties to put initiatives 15 together, get them on the ballots and get them approved. 16 Q. Let me explore those two answers with you, if I 17 might. 18 So on the state-wide initiatives that you 19 have served, did you have any executive decision-making 20 responsibilities? 21 A. As part of the committee we voted on and made 22 decisions on the campaign. 23 Q. But you made those decisions collectively? 24 A. Yes. 25 Q. Okay. In those instances was there a chief Glennie Reporting Services, LLC APPX_073

82 Matthew G. Madonna - 06/02/ executive officer or manager for the campaigns? 2 A. Yes. 3 Q. Can you tell us who that was? 4 A. I can't. I have no recollection of the names 5 at this point. 6 Q. All right. Moving then to the third state-wide 7 where you were a member of the advisory board, again, same 8 question: Did you have any decision-making 9 responsibilities? 10 A. No. 11 Q. Okay. Now, on the county or municipals, your 12 role was not in any way related to qualifying the measure 13 for the ballot, true? 14 A. Indirectly it did. 15 Q. Well, let me rephrase that. I'll try to ask a 16 better question than that one. Signatures were not 17 gathered for those campaigns, true? 18 A. Signatures were gathered for those campaigns. 19 Q. Oh, they were? 20 A. Yes. 21 Q. All right. I misunderstood. I thought you 22 were saying that the county or the municipality placed the 23 measure on the ballot? 24 A. No. 25 Q. All right. That changes my understanding. So Glennie Reporting Services, LLC APPX_074

83 Matthew G. Madonna - 06/02/ you were trying to qualify measures for the county or 2 municipal ballots? 3 A. Yes. 4 Q. All right. In those capacities did you have 5 any executive decision-making responsibilities? 6 A. No. 7 Q. Again, were you a member of a committee or 8 something similar to that? 9 A. I provided, either directly or through my 10 staff, expertise to committees at the community level as 11 they were working their way through the process. 12 Q. Okay. Were you paid? 13 A. Not by the campaigns. 14 Q. Were you paid by anybody for such services? 15 A. No. 16 Q. Okay. You were presumably drawing a salary at 17 the same time though while you were still with the Cancer 18 Society? 19 A. Right, correct. 20 Q. Okay. Is that a fair description or summary of 21 your experience with initiative campaigns, or is there 22 something you would like to add to it? 23 A. In terms of initiatives that actually happened, 24 that's all I have to say. 25 Q. Okay. Now, we talked about initiatives. I Glennie Reporting Services, LLC APPX_075

84 Matthew G. Madonna - 06/02/ constitutional and statutory? 2 A. Yes. 3 Q. So those with the C are constitutional, those 4 with an I are just regular statutory. So if you would 5 check on those with a C and an I. The recalls and the 6 referendum I'm not concerned with. Is that clear to you 7 now? 8 A. Yes. 9 I read it. 10 Q. Okay. Are you involved with that? 11 A. No. 12 Q. Okay. Now, I promise I would not try to get 13 into any details relative to strategy or anything like 14 that, and I'm not really interested in that. But what I 15 would like to find out, if I may, and that is there are 16 initiatives that are planned, and I don't even want to 17 know the details of them, but what I would like to find 18 out is if you are contemplating being involved with any 19 initiative drive that we have not listed on Exhibit 2 as 20 of today? 21 A. Yes. 22 Q. Okay. But for those, no application has been 23 taken out yet? 24 A. That's correct. 25 Q. How many are we talking about? Glennie Reporting Services, LLC APPX_076

85 Matthew G. Madonna - 06/02/ A. One. 2 Q. Okay. And that would be statewide; is that 3 true? 4 A. Yes. 5 Q. Okay. Now, what I would like to do is try to 6 focus on what you would do differently as a person who may 7 be involved with an initiative campaign -- differently 8 under House Bill 2244 than you would under existing law, 9 okay? Now, you're aware, sir, that House Bill actually is not yet law, true? 11 A. Yes. 12 Q. And it won't become law until the 91st day 13 after the legislature adjourned sine die? 14 MR. GAONA: Objection. 15 THE WITNESS: Yes. 16 Q. BY MR. CANTELME: Okay. So just to be clear 17 about it, you're aware that the state constitution gives 18 the citizens a period of time in which to try to get 19 referendum petitions signed in order to put a proposal 20 onto the ballot? Are you with me there? 21 A. Yes. 22 Q. And you know that's a 90-day period, right? 23 A. Yes. 24 Q. And that's why I chose the 91st day. Are you 25 with me there? Glennie Reporting Services, LLC APPX_077

86 Matthew G. Madonna - 06/02/ exceptions, or additions, I should say? 2 A. Right. 3 Q. All right. How does it change as to what you 4 would want the lawyer to cover under the new law as 5 opposed to the old law, if at all? 6 A. Once again, I go back to the basic uncertainty 7 and the risks that are involved -- or potential risks that 8 are involved in the difference between substantial and 9 strict. And I don't know what those are, and I'm not sure 10 who does know what those are. 11 Q. Well, let me ask you this, sir. We've gone 12 through the statutory criteria for good signatures, we've 13 gone through some of the statutory criteria, at least the 14 fact that the Secretary of State reviews the sheets 15 themselves, and we've gone over whether or not you know 16 whether those criteria would change under the new law as 17 opposed to the old. 18 So that said -- and if you can't answer 19 this, say so -- what would change so far as what you would 20 expect from the lawyer under the new law as opposed to the 21 old law? 22 A. I believe that there has to be significant 23 speculation as to how the new law would be interpreted so 24 that we can take whatever actions we have to take to 25 compensate for those changes in interpretation and/or Glennie Reporting Services, LLC APPX_078

87 Matthew G. Madonna - 06/02/ law. And if you can't say, that's fair enough, also. 2 A. I will say. I mean, that's the basis of why 3 I'm sitting here. I believe that, in the implementation 4 of the strict compliance requirements of 2244, there will 5 be significant additional expenses in the gathering of 6 signatures and the recruitment and the training of 7 volunteers and the determination of, whether in fact, 8 volunteers can legitimately and legally be used in this 9 process and the fact that there will have to be, as you 10 used the word before, the buffer will have to be 11 significantly larger. Because what you're not addressing 12 in the law is the interpretation of the law and the 13 implementation of the law, and that is what creates the 14 uncertainty which, in my opinion, is the basis of why 15 we're sitting here. 16 Q. Okay. Let me explore that with you. If the 17 Secretary of State would interpret the specific criteria 18 that we've reviewed set forth in statute, the same under 19 the new law as under the old law, and if the County 20 Recorders would do the same, you would agree with me you 21 would have no increased cost whatsoever? 22 MR. GAONA: Form. 23 THE WITNESS: I don't agree with your basic 24 premise. 25 Q. BY MR. CANTELME: Well, maybe they will or Glennie Reporting Services, LLC APPX_079

88 Matthew G. Madonna - 06/02/ new law as under the old law? 2 A. Probably. 3 Q. In what respects? 4 A. I have no idea until we get into it. 5 Q. Okay. Do you expect a lawyer would charge you 6 more to give you advice under the new law as under the old 7 law? 8 A. I believe there will be the need for more legal 9 hours, so yes. 10 Q. Okay. Do you know that for a fact? 11 A. Of course not, nor do you know opposite of it. 12 And I'm the one that's going to have to raise the money to 13 make it happen. 14 Q. Okay. Let me look at the other identifications 15 that you've made in paragraph 1 of the First Amended 16 Complaint, Exhibit 1, as to what you think may be some 17 injuries that you might suffer under the new law as 18 opposed to the old. We talked about costs. Is there any 19 reason to think that expending additional resources is 20 different from costs? 21 A. Can you clarify that? 22 Q. Sure. Look at lines 21 and 22, please, on page 23 2, Exhibit 1. And do you see where it reads, "cause them 24 to incur additional costs and expend additional 25 resources"? Glennie Reporting Services, LLC APPX_080

89 51 1 STATE OF ARIZONA ) ) 2 COUNTY OF MARICOPA ) 3 BE IT KNOWN that I took the foregoing deposition pursuant to Notice; that the witness was duly sworn by 4 me; and that said transcript is a full, true, and accurate record of the proceedings; that the proceedings 5 were taken down by me in shorthand and thereafter reduced to print under my direction; that I have acted in 6 compliance with ACJA I CERTIFY that I am in no way related to any of the parties hereto nor am I in any way interested in the 8 outcome hereof. 9 Pursuant to request, notification was provided that the deposition is available for review and 10 signature. 11 Dated this 14th day of June, Janet Hauck, RPR Certified Reporter 15 Arizona CR No I CERTIFY that GLENNIE REPORTING SERVICES, LLC, has complied with the ethical obligations set forth in 18 ACJA GLENNIE REPORTING SERVICES, LLC Registered Reporting Firm 24 Arizona RRF No. R Glennie Reporting Services, LLC APPX_081