Invest In Ed Did Not Violate (New) "Bait and Switch" Test In 100-Word Summary, Supreme Court Finds

 The Arizona Supreme Court decided that Invest In Ed's 100-word summary did not violate its "bait and switch" standard, and that is why they unanimously put the measure back on this year's ballot. The Court released its detailed opinion today (below), after announcing the result back in August.

The Supreme Court rejected the reasoning of the Superior Court Judge who had knocked it off of the ballot, but also acknowledged that their decision in removing the initiative from the 2018 ballot needed to be clarified. In 2018, they found that the proponents had fatally misrepresented the proposed tax rate increase, and that that was false and central to the measure.

This year, they found no such misrepresentations of "principal provisions" of the measure. And, the Supreme Court rejected Judge Christopher Courty's identification of five un-summarized provisions as principal.

In explaining their new opinion, Vice Chief Justice Ann Timmer - writing for the entire Court - boiled down the clarified test thusly:

Reasonable people can differ about the best way to describe a principal provision, but a court should not enmesh itself in such quarrels. If the chosen language would alert a reasonable person to the principal provisions’ general objectives, that is sufficient. Applying this reasonable person standard, the trial judge should ordinarily decide the sufficiency of a description without expert witness evidence. 

What constitutes a deficient description under § 19-102(A)? In recent years, we have described such deficiencies as those that are “fraudulent or create[] a significant danger of confusion or unfairness,” contain “untrue representations designed to defraud potential signatories,” or "obscure[]” a measure’s principal provisions or “thrust”.

We now rephrase these standards more precisely to assist both initiative sponsors in complying with § 19-102(A) and courts in deciding whether sponsors did so.

The court should disqualify an initiative from the ballot whenever the 100-word description either communicates objectively false or misleading information or obscures the principal provisions’ basic thrust. The latter can occur through the language used to describe the principal provisions or by failing to refer to key features of those provisions.

In other words, although sponsors are free to describe the measure in a positive way and emphasize its most popular features, they may not engage in a “bait and switch” in which the summary attracts signers but misrepresents or omits key provisions. In addressing challenges, a court should “consider the meaning a reasonable person would ascribe to the description.”

Elements of the business community that brought the unsuccessful challenge also have waged a costly political battle against the education funding measure. 

And, the fallout from the legal challenge reached the political side in another way, as well. The Democratic Party has urged the public to vote out Superior Court Judge Coury, solely as a result of his (reversed) decision in this case. (Arizona's Law published a guest commentary earlier today on that campaign.)

Molera v Hobbs II by arizonaspolitics on Scribd

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