Judge rules Secretary of State wrong for refusing to process initiative petitions
PHOENIX -- Secretary of State Ken Bennett was wrong in refusing to process initiative petitions seeking to permanently extend the state's one-cent sales tax, a judge ruled Wednesday.
Maricopa County Superior Court Judge Robert Oberbillig rejected claims by Michele Forney, an assistant attorney general, that initiative backers did not submit a correct copy of the plan to Bennett's office when they began circulating the petitions.
Oberbillig agreed that the paper copy provided to Bennett in March is different than the version attached to the petitions signed by more than 290,000 people. And that difference affects how $350 million of anticipated tax proceeds is divided up.
Forney said that difference is significant.
She said state law requires that an accurate version of what initiative backers intend to circulate be filed with Bennett's office ahead of time. Forney said Bennett's staff accepted -- and stamped -- the paper version submitted as ``official.'
It was that paper version that Bennett's office scanned and put on his agency's web site, Forney said, so that individuals could read the actual text of the 15-page measure at their leisure -- and before they are asked to sign the petitions.
But the judge said the Quality Education and Jobs Committee also gave Bennett a correct version -- albeit on disk. He said there is nothing in state law which makes the paper version the ``official' one.
Oberbillig also noted that Bennett became aware of the discrepancy between the versions last month.
At that point, the judge said, Bennett could have simply recognized from talking with initiative backers that the paper version contained a ``photocopy error' and allowed them to substitute the filed electronic version as the official copy. But he refused to do that.
``Doesn't that seem arbitrary and capricious not to allow that change?' Oberbillig asked Forney. ``The secretary of state doesn't recognize human error?'
More to the point, Oberbillig said there is no evidence that anyone signing the petitions was misled.
He pointed out that the correct version was attached to each petition sheet, giving would-be signers a chance to read the full measure first if they wanted. He said that makes Bennett's bid to keep the measure off the ballot improper.
``Your proposal is you want to undo the validity of 290,000 signatures because of a photocopy error,' Oberbillig said.
Wednesday's ruling is not a guarantee that voters will, in fact, get a chance to vote on the plan.
Assistant Secretary of State Jim Drake said a decision will be made by the end of the week whether to appeal. And there is no guarantee the Arizona Supreme Court will disturb Oberbillig's ruling.
Legal issues aside, Forney pointed out that the signatures still need to be reviewed and verified by election officials in each county. But even with some names being declared invalid, backers appear to have enough of a cushion to meet the legal minimum of 172,809.
Voters approved a temporary one-cent hike in the state's 5.6 percent sales tax rate in 2010 as part of a plan to bridge a $3 billion deficit. The levy raised more than $900 million a year, with the balance achieved through spending cuts and borrowing.
The tax self-destructs at the end of this coming May without further action.
Initiative backers not only want to make the tax permanent but also want to spell out exactly where each dollar goes rather than leaving it up to the Legislature.
Of the first $1 billion a year, half would automatically go to state aid to schools, with another $100 million tied to whether schools were performing. There also is $100 million for construction projects, with the balance divided largely among health insurance for children, university scholarships and operations and a ``family stability and self-sufficiency fund.'
There is a different formula for the next $550 million.
It is what happens with the $350 million on top of that where the two versions differ.
The version circulated gives up to $250 million for university aid and up to $100 million for construction. But the paper version prefiled with Bennett has an entirely different formula.
Initiative organizer Ann-Eve Pedersen would say only that the paper version submitted was from an earlier plan.
After the hearing, Pedersen praised the judge -- and lashed out at Bennett for refusing to process the petitions.
``He knew there was a variance' between the versions,' she said. ``At that point in time, as Judge Oberbillig said, he could have just as easily have said the electronic version which you gave me on March 9, which is the text and copy attached to every single one of your petitions, is the official version.'
Bennett, however, was not made aware of the differences until last month, after most of the signatures had been gathered. And that disclosure came not from her Pedersen's group but from the Arizona Tax Research Association, which was analyzing the measure as part of its opposition.
She also said that Bennett, in forcing her group to sue to get on the ballot, had ``put at risk Arizona state taxpayer dollars.' That is because Pedersen said her group, as allowed by law, is going to ask the state to pay its legal fees.
Former Arizona Supreme Court Justice Stanley Feldman, representing initiative backers, acknowledged to Oberbillig that he doubts many people asked to sign the petition actually read every word of the attached document.
But Feldman pointed out that each petition also has a 100-word description on the cover page. And he said that description on those petitions was the same on the paper copy prefiled with Bennett and the electronic version filed at the same time.