SUPREME COURT OF ARIZONA 

En Banc 

 

BILL FELDMEIER, a qualified ) Arizona Supreme Court 

elector of the City of Prescott, ) No. CV-05-0325-AP/EL 

 ) 

 Plaintiff/Appellee, ) Yavapai County 

 ) Superior Court 

v. ) No. CV 20050705 

 ) 

MARIE L. WATSON, in her official ) 

capacity as the Prescott City ) O P I N I O N 

Clerk; ANA WAYMAN-TRUJILLO, in ) 

her official capacity as Yavapai ) 

County Recorder, ) 

 ) 

 Defendants/Appellees, ) 

 ) 

CITIZENS FOR RESPONSIBLE GROWTH, ) 

 ) 

Defendant/Real Party in Interest/ ) 

 Appellant. ) 

 ) 

 ) 

__________________________________) 

Appeal from the Superior Court in Yavapai County 

No. CV 20050705 

The Honorable Robert M. Brutinel, Judge 

REVERSED AND VACATED 

________________________________________________________________ 

LAW OFFICES OF W. GIL SHAW Prescott 

 By W. Gil Shaw 

And 

LAW OFFICES OF WILLIAM R. HOBSON Chandler 

 By William R. Hobson 

And 
COUNTERS & KOELBEL, P.C. Chandler 

By Lisa J. Counters 

 Kevin Koelbel 

Attorneys for Citizens For Responsible Growth 

GAMMAGE & BURNHAM, P.L.C. Phoenix 

By Lisa T. Hauser 

 Michella Abner 

Attorneys for Bill Feldmeier 

________________________________________________________________ 

R Y A N, Justice 

¶1 The Superior Court of Yavapai County enjoined the 

placement of an initiative measure on a ballot because the court 

found that the petition circulators’ affidavits did not 

substantially comply with the verification requirements of 

Article 4, Part 1, Section 1(9), of the Arizona Constitution, 

and Arizona Revised Statutes (“A.R.S.”) section 19-112(C) 

(2002). Having concluded that the affidavits complied with the 

legal requirements, we previously ordered that the trial court’s 

ruling enjoining the placement of the initiative measure on the 

ballot be vacated, with an opinion to follow. This is that 

opinion. 

I

¶2 Citizens for Responsible Growth (“CRG”), a political 

committee, sought to place an initiative on the ballot to amend 

the Prescott City Charter. The initiative was filed with the 

Prescott City Clerk with sufficient signatures to qualify the 

petition for the ballot. 

¶3 After the City Clerk certified the measure for the 

- 2 -
ballot, Bill Feldmeier, an elector in the City of Prescott, 

filed a complaint alleging, among other things, that the 

circulators’ affidavits were defective because they “fail[ed] to 

satisfy the constitutional and statutory requirement that the 

circulator swear to his belief that each signer was a qualified 

elector of the City of Prescott.” The affidavit on CRG’s 

petition avowed in relevant part that the circulator had 

determined that 

each individual signed this sheet of the foregoing 

petition in my presence on the date indicated, and I 

believe that each signer’s name and residence address 

or post office address are correctly stated and that 

each signer is a qualified elector of the state of 

Arizona (or in the case of a city, town or county 

measure, of the city, town or county affected by the 

measure proposed to be initiated or referred to the 

people) . . . . 

¶4 After conducting hearings on Feldmeier’s request, the 

trial court enjoined the Clerk from certifying the proposed 

initiative for inclusion on the ballot. The court found that 

the petitions did not substantially comply with the constitution 

because they failed to include the phrase “City of Prescott” on 

the circulator’s affidavit. 

¶5 CRG filed a timely notice of appeal. We have 

jurisdiction over this appeal under Article 6, Section 5(3), of 

the Arizona Constitution, and A.R.S. §§ 19-122(C), -19-141 (A), 

(D)(2002). 

- 3 -
II 

A 

¶6 On the eve of Arizona’s statehood, one of the “burning 

issues” was whether Arizona should adopt the initiative and 

referendum process. Whitman v. Moore, 59 Ariz. 211, 218, 125 

P.2d 445, 450 (1942), overruled, in part, on other grounds by

Renck v. Superior Court, 66 Ariz. 320, 327, 187 P.2d 656, 660-61 

(1947). Delegates to our constitutional convention eventually 

decided Arizona should join those states that had such 

procedures. Id. The voters then ratified the constitution “by 

a very large percentage of the votes cast.” Id. Article 4, 

Part 1, Section 1, of the Arizona Constitution, and A.R.S. §§ 

19-101 to -143 (2002 & Supp. 2005) set forth the rules for 

initiative and referendum petitions. 

¶7 The initiative process reserves to the people the 

power to propose to the electorate laws and amendments to the 

constitution. Ariz. Const. art. 4, pt. 1, § 1(1). The Arizona 

Constitution expressly reserves the initiative power to 

qualified electors of political subdivisions of the state when 

legislative matters are purely of local concern. Id. § 1(8).1 

The referendum process, on the other hand, is the power of the 

people to accept or reject, at the polls, legislative 

 

1 The referendum power is preserved for political 

subdivisions by this same provision. Ariz. Const. art. 4, pt. 

1, § 1(8). 

- 4 -
enactments. Id. § 1(1), (3). The legislature also may refer 

proposed legislation or constitutional amendments to the 

electorate. Id. § 1(3). 

¶8 An initiative petition must include a brief 

description of the principal provisions of the initiative; a 

notice that the description may not include every provision and 

anyone asked to sign has a right to examine the title and full 

text of the measure, which must be attached to the petition; a 

statement that the signer demands that this initiative be 

submitted to the qualified electors and that, as a qualified 

elector, the signer has personally signed the petition and has 

not signed any other petitions for the same matter; and a 

warning that it is a misdemeanor to sign the petition if certain 

conditions apply. Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. §§ 

19-101 to -102. Whether the circulator is paid or is a 

volunteer must also be indicated on the petition. A.R.S. § 19-

102(B), (C). 

¶9 The petition signer must also declare that he or she 

is a qualified elector of the proper political subdivision and 

must provide the “post office address, the street and number, if 

any, of his residence, and the date on which he signed such 

petition.” Ariz. Const. art. 4, pt. 1, § 1(9); A.R.S. § 19-

112(A). The circulator must then verify the signatures in a 

sworn affidavit on the back of the petition. Ariz. Const. art. 

- 5 -
4, pt. 1, § 1(9); A.R.S. §§ 19-101(A), -102(A), -112(C), (D). 

¶10 With respect to the verification requirement, the 

Arizona Constitution states, in pertinent part, the following: 

[E]very sheet of every [initiative or referendum] 

petition containing signatures shall be verified by 

the affidavit of the person who circulated said sheet 

or petition, setting forth . . . that in the belief of 

the affiant each signer was a qualified elector of the 

State, or in the case of a city, town, or county 

measure, of the city, town, or county affected by the 

measure so proposed to be initiated or referred to the 

people. 

Ariz. Const. art. 4, pt. 1, § 1(9) (emphasis added). The 

language of A.R.S. § 19-112(C) tracks the constitutional 

verification requirements: 

The [circulator] . . . shall, on the affidavit form 

pursuant to this section, subscribe and swear before a 

notary public that . . . the circulator . . . 

[believed] each signer was a qualified elector of a 

certain county of the state, or, in the case of a 

city, town or county measure, of the city, town or 

county affected by the measure on the date indicated 

. . . . 

Section 19-112(D), in turn, sets forth the form for the 

circulator’s affidavit.2

 

2 Section 19-112(D) requires, in part, the following be 

printed on the reverse side of each signature sheet: 

 I,(print name), a person who is qualified to 

register to vote in the county of , in the 

state of Arizona at all times during my circulation of 

this petition sheet, and under the penalty of a class 

1 misdemeanor, depose and say that each individual 

signed this sheet of the foregoing petition in my 

presence on the date indicated, and I believe that 

each signer’s name and residence address or post 

- 6 -
B 

¶11 We have long “recognized Arizona’s strong public 

policy favoring the initiative and referendum.” W. Devcor, Inc. 

v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 

(1991) (citing Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 

66, 811 P.2d 22, 27 (1991)). However, in light of the 

differences between referendums and initiatives, we apply a 

different test to each when challenged on constitutional or 

statutory grounds. Id. 

¶12 We require referendum proponents to strictly comply 

with all constitutional and statutory requirements. Id. at 428,

814 P.2d at 769 (citing Cottonwood Dev. v. Foothills Area Coal., 

134 Ariz. 46, 48-49, 653 P.2d 694, 696-97 (1982); Direct Sellers 

Ass’n v. McBrayer, 109 Ariz. 3, 6, 503 P.2d 951, 954 (1972)). 

The referendum power is subject to this exacting standard 

 

office address are correctly stated and that each 

signer is a qualified elector of the state of Arizona 

(or in the case of a city, town or county measure, of 

the city, town or county affected by the measure 

proposed to be initiated or referred to the people) 

and that at all times during the circulation of this 

signature sheet a copy of the title and the text was 

attached to the signature sheet. 

 (Signature of affiant)____________________ 

(Residence address, street and 

number of affiant, 

or if no street address, 

a description of residence 

location) _________________________________ 

 _ _______________________________ 

- 7 -
because it “permits a ‘minority to hold up the effective date of 

legislation which may well represent the wishes of the 

majority[.]’” Id. at 429, 814 P.2d at 770 (quoting Cottonwood, 

134 Ariz. at 49, 653 P.2d at 697). 

¶13 In contrast, “requirements as to the form and manner 

in which citizens exercise their power of initiative should be 

liberally construed.” Kromko v. Superior Court, 168 Ariz. 51, 

57-58, 811 P.2d 12, 18-19 (1991). This is because “courts must 

exercise restraint before imposing unreasonable restrictions on 

the people’s legislative authority, which ‘is as great as the 

power of the legislature to legislate.’” Id. at 57, 811 P.2d at 

18 (quoting State v. Osborn, 16 Ariz. 247, 250, 143 P. 117, 118 

(1914)). But, while “every reasonable intendment is in favor of 

a liberal construction” of the requirements for an initiative, 

if “the Constitution expressly and explicitly makes any 

departure . . . fatal,” the initiative cannot be placed on the 

ballot. Whitman, 59 Ariz. at 220, 125 P.2d at 451. 

¶14 The test for initiatives, unlike referenda, thus is 

whether the petition substantially complies with the applicable 

constitutional and statutory requirements. Kromko, 168 Ariz. at 

58, 811 P.2d at 19. In deciding whether an initiative 

substantially complies with the constitutional and statutory 

requirements, a court should consider several factors, including 

the nature of the constitutional or statutory requirements, the 

- 8 -
extent to which the petitions differ from the requirements, and 

the purpose of the requirements. See Meyers v. Bayless, 192 

Ariz. 376, 378, ¶¶ 10-12, 965 P.2d 768, 770 (1998) (reviewing 

petition to see how well it complied with the title 

requirement); Kromko, 168 Ariz. at 58, 811 P.2d at 19 (reviewing 

the statutory requirements and the extent to which the petition 

complied with those requirements); Whitman, 59 Ariz. at 220, 

223, 229, 125 P.2d at 451-52, 454 (examining statutory and 

constitutional signature requirements as well as the purpose 

behind those requirements).3

 Accordingly, in the context of the 

formal requirements for initiatives, substantial compliance 

means that the petition as circulated fulfills the purpose of 

the relevant statutory or constitutional requirements, despite a 

lack of strict or technical compliance. 

 

3 We have found substantial compliance in the following 

cases: Meyers, 192 Ariz. at 378, ¶ 12, 965 P.2d at 770 

(concluding that even when the petition did not contain a clear 

title, but a title could be found by looking at the formatting 

of the petition, the petition substantially complied); Kromko, 

168 Ariz. at 58-61, 811 P.2d at 19-22 (finding substantial 

compliance when the petitions included non-fraudulent extraneous 

short titles, which were neither authorized nor prohibited by 

the constitution or statutes); Iman v. Bolin, 98 Ariz. 358, 366, 

404 P.2d 705, 710 (1965) (holding that the Secretary of State 

had substantially complied with requirements when he had omitted 

some language from the original publicity pamphlets, but later 

corrected the mistake through a correction sheet); Whitman, 59 

Ariz. at 231-33, 125 P.2d at 455-56 (finding substantial 

compliance when more signatures were included on petitions than 

allowed by statute; some addresses were written by someone other 

than the signer or indicated only by ditto marks; and 

circulators did not include their cities and state, but did 

include their addresses). 

- 9 -
¶15 The challenged initiative petitions must be examined 

as a whole to determine whether they comply with the 

constitutional and statutory requirements. See Meyers, 192 

Ariz. at 378, ¶¶ 10-12, 965 P.2d at 770; Whitman, 59 Ariz. at 

225-33, 225, 125 P.2d at 452-56, 454. If the initiative 

petition, as a whole, substantially complies, the challenge will 

fail, “unless the Constitution expressly and explicitly makes 

any departure [from a specific requirement] fatal.” Whitman, 59 

Ariz. at 220, 125 P.2d at 451. 

III 

A

¶16 CRG’s circulator affidavit copied the form set forth 

in A.R.S. § 19-112(D). In reviewing the affidavit, the trial 

court correctly discerned that substantial compliance was the 

appropriate test. But the superior court held that the 

initiative petition did not substantially comply with the 

constitutional and statutory requirements because the 

circulator’s affidavit omitted the word “Prescott,” and that 

this omission “arguably” constituted a fatal failure to comply 

with requirements of the constitution. 

¶17 In reaching this conclusion, the trial judge primarily 

relied on our decision in Devcor. In that case we held, in the 

referendum context, that the Arizona Constitution and the 

applicable statutes require that “the circulators [believe] each 

- 10 -
signer to be a qualified elector [of the municipality].” 168 

Ariz. at 429, 814 P.2d at 770. 

¶18 In Devcor, a group of citizens sought to refer to 

Scottsdale voters a city council rezoning decision. Id. at 427-

28, 814 P.2d at 768-69. The owners of the rezoned land 

challenged the sufficiency of the referendum petitions. Id. 

The referendum petition affidavits stated only that the 

circulator believed each signer to be a qualified elector of the 

State of Arizona, not that the circulator believed that the 

signer was a qualified elector of the City of Scottsdale. Id. 

at 429, 814 P.2d at 770. Because the affidavits included no 

language mentioning the City of Scottsdale, or even any 

indication that the measure affected legislation of “a city, 

town or county,” we concluded that the affidavits did not 

strictly comply with the constitution or statutes for a 

referendum petition. Id. The petitions were therefore 

“insufficient to require an election.”4

 Id. at 432, 814 P.2d at 

773. 

¶19 The trial court’s reliance on Devcor is misplaced for 

 

4 Devcor did discuss whether the petitions could be saved on 

other grounds. 168 Ariz. at 431-32, 814 P.2d at 772-73. But we

held that the defects in the petitions were not cured. Id. 

Here, CRG also raised the issue of whether any possible defect 

could be cured with other evidence. Because we conclude the 

petitions in this case comply with the constitutional and 

statutory requirements, we do not address the issue of when or 

how a defective initiative petition may be cured. 

- 11 -
three reasons. First, Devcor involved referendum petitions, not 

initiative petitions. Devcor therefore applied the strict 

compliance test and not the substantial compliance test. Id. at 

428-29, 814 P.2d at 769-70. 

¶20 Second, the language used in the circulator affidavit 

in Devcor did not track the language of the constitution. 168 

Ariz. at 429-32, 814 P.2d at 770-73. Instead, the circulator’s 

affidavit followed the form set forth in then A.R.S. § 19-112(C) 

(1990) and the form provided by the Secretary of State, both of 

which referred to a signer only as being a qualified elector of 

the State of Arizona. We concluded that the decision to follow 

the form in § 19-112(C) could not excuse the failure to follow 

the constitution. Devcor, 168 Ariz. at 430, 814 P.2d at 771. 

No language, parenthetical or otherwise, indicated the 

circulator’s belief that the signers were qualified electors of 

the City of Scottsdale. Id. at 429, 814 P.2d at 770. Because 

Article 4, Part 1, Section 1(9), of the Arizona Constitution 

requires that the affiants swear to their belief that each 

petition signer is a qualified elector of the city when the 

initiated or referred matter affects a city, the petitions were 

constitutionally insufficient. Devcor, 168 Ariz. at 429-32, 814 

P.2d at 770-73. 

¶21 Third, the statute followed by the circulators in 

Devcor was amended shortly after the opinion in Devcor was 

- 12 -
published. See 1991 Ariz. Sess. Laws, 3d Spec. Sess., ch. 1, § 

8. The amended statute required the circulator affidavit form 

to include parenthetical language relating to local initiative 

or referendum measures. See A.R.S. § 19-112(D). This language 

tracks the language of Article 4, Part 1, Section 1(9), of the 

Arizona Constitution and A.R.S. § 19-112(C). As noted, CRG used 

the language of the amended statute, verbatim, to create its 

circulator affidavits. 

B 

¶22 Because CRG’s circulator affidavits expressly followed 

the form set out in A.R.S. § 19-112(D), the superior court erred 

in finding the affidavits did not substantially comply with the 

constitutional and statutory requirements. For a local ballot 

measure, the relevant provisions require the circulator to swear 

out an affidavit stating, in part, a belief that the signers 

were qualified electors of the “city, town or county affected by 

the measure.” The parenthetical language in A.R.S. § 19-112(D) 

makes that affirmation, but does not expressly require the 

specific identification of the governmental subdivision 

involved. 

¶23 While it may have been the legislature’s intent to 

require that the parenthetical language be replaced with the 

name of the local governmental entity, that intent is not clear 

from the face of A.R.S. § 19-112(D). The form set forth in § 

- 13 -
19-112(D) contains lines in places in which the legislature 

intended for a parenthetical to be filled in. There is no line, 

however, under or adjacent to the parenthetical referring to 

“the case of a city, town or county measure.” Id.

Consequently, the failure to replace the statutory parenthetical 

language with the “City of Prescott” is not a basis for finding 

a lack of substantial compliance with the constitution or the 

statute. 

¶24 Moreover, because CRG used the form set out in A.R.S. 

§ 19-112(D), its circulator affidavit complied with the purpose 

behind the constitutional and statutory requirements. The 

purpose of the verification requirements, found in Article 4, 

Part 1, Section 1(9), of the Arizona Constitution, and A.R.S. § 

19-112(C), is to ensure the circulators use “reasonable efforts 

to obtain valid signatures.” Devcor, 168 Ariz. at 432, 814 P.2d 

at 773. 

¶25 Viewed as a whole, the circulator affidavit and 

petition in this case fulfill the purpose underlying the 

constitutional and statutory requirements. The front page of 

the petition states that it is a City of Prescott initiative, 

lending meaning to the parenthetical information set forth in 

the circulator’s affidavit. The form itself precisely tracked 

the statutory form in A.R.S. § 19-112(D). Because the petition 

clearly states that it pertains to a City of Prescott measure, 

- 14 -
the parenthetical language in the affidavit indicates that the 

affiant believes the signer to be a qualified elector of the 

city. This is at the very least substantial – and arguably 

literal – compliance with the relevant statutory and 

constitutional mandates. 

IV 

¶26 CRG requests costs and attorneys’ fees under A.R.S. § 

12-2030 (2003). That statute requires a court to award fees and 

expenses to any non-governmental party that prevails by 

adjudication on the merits “in a civil action brought by the 

party against . . . any political subdivision of this 

state . . . to compel . . . any officer of any political 

subdivision . . . to perform an act imposed by law as a duty on 

the officer.” Id. (emphasis added). CRG did not bring the 

original action. Rather, Feldmeier brought the original action; 

CRG was the real party in interest. Moreover, the Prescott City 

Clerk and the Yavapai County Recorder did not fail to perform a 

duty required of them. These officials actually certified the 

initiative measure for the ballot; it was the superior court 

that enjoined the measure. We therefore deny CRG’s request for 

attorneys’ fees. 

- 15 -
V

¶27 For the foregoing reasons, we reverse the trial 

court’s judgment and vacate the injunction against the Prescott 

City Clerk. 

 ________________________________ 

 Michael D. Ryan, Justice 

CONCURRING: 

_________________________________________ 

Ruth V. McGregor, Chief Justice 

_________________________________________ 

Rebecca White Berch, Vice Chief Justice 

_________________________________________ 

Andrew D. Hurwitz, Justice 

_________________________________________ 

W. Scott Bales, Justice 

- 16 -