143 P.3d 1023 (Ariz. 2006), CV-06-0079, Forty-Seventh Legislature of State v. Napolitano

Docket Nº:CV-06-0079-SA.
Citation:143 P.3d 1023, 213 Ariz. 482
Party Name:The FORTY-SEVENTH LEGISLATURE OF the STATE of Arizona; The Arizona State Senate; The Arizona House of Representatives; Ken Bennett, individually and as President, Arizona State Senate; and James P. Weiers, individually and as Speaker, Arizona House of Representatives, Petitioners, v. Janet NAPOLITANO, Governor of the State of Arizona; Arizona Depar
Case Date:September 12, 2006
Court:Supreme Court of Arizona
 
FREE EXCERPT

Page 1023

143 P.3d 1023 (Ariz. 2006)

213 Ariz. 482

The FORTY-SEVENTH LEGISLATURE OF the STATE of Arizona; The Arizona State Senate; The Arizona House of Representatives; Ken Bennett, individually and as President, Arizona State Senate; and James P. Weiers, individually and as Speaker, Arizona House of Representatives, Petitioners,

v.

Janet NAPOLITANO, Governor of the State of Arizona; Arizona Department of Administration and William Bell, Director; and Arizona State Personnel Board and Jeff Grant, Chair, Respondents.

No. CV-06-0079-SA.

Supreme Court of Arizona, En Banc.

September 12, 2006

Page 1024

[Copyrighted Material Omitted]

Page 1025

MEAGHER & GEER, P.L.L.P. Scottsdale By Gary L. Lassen Thomas H. Crouch Attorneys for the 47th Legislature of the State of Arizona, the Arizona State Senate, the Arizona House of Representatives, Ken Bennett, and James P. Weiers

OFFICE OF THE GOVERNOR Phoenix By Timothy A. Nelson, General Counsel Nicole C. Davis, Deputy General Counsel And PERKINS COIE BROWN & BAIN P.A. Phoenix By Paul F. Eckstein Joel W. Nomkin, Charles A. Blanchard, Lee Stein Attorneys for Governor Janet Napolitano.

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Mary O' Grady, Solicitor General Attorneys for Arizona Department of Administration and William Bell, Director, and Arizona State Personnel Board and Jeff Grant, Chair

RYLEY CARLOCK & APPLEWHITE Phoenix By N. Warner Lee John M. Fry Attorneys for Amicus Curiae National Conference of State Legislatures

OSBORN MALEDON, P.A. Phoenix By Diane M. Johnsen, Thomas L. Hudson, Diane M. Meyers Attorneys for Amicus Curiae National Governors Association.

OPINION

Ruth V. McGregor, Chief Justice.

¶1 this case requires us to decide whether the gubernatorial veto of a portion of a bill related to state employee compensation exceeded the Governor's item veto power under Article 5, Section 7 of the Arizona Constitution. We conclude that the vetoed provision is not an item of appropriation subject to the gubernatorial item veto.

I.

¶2 on January 25 and 26, 2006, the Forty-seventh Legislature (the Legislature) passed House Bill 2661 (HB 2661) as an emergency measure. 1 Section 1 of HB 2661 expressed the Legislature's intent to grant state employees a pay raise, and Section 6 appropriated money for employee salary adjustments. HB 2661, 47th Leg., 2d Reg. Sess. (Ariz. 2006). Section 5 of HB 2661 (Section 5) amended Arizona Revised Statutes (A.R.S.) section 41-771 (2004) and exempted certain employees hired after December 31, 2006, from the state merit system. Id.

¶3 on January 30, 2006, the Governor vetoed a portion of Section 5. 2 The Governor's veto message stated that the item "would have created an additional expense to the state" because exempt employees accrue leave differently than do merit system employees.

¶4 on February 2, 2006, by separate votes, each chamber of the Legislature authorized its presiding officer to bring an action on behalf of the Legislature to challenge the constitutional validity of the Governor's item veto of Section 5. Senate President Ken Bennett and Speaker of the House James Weiers then brought this special action, acting both individually and on behalf of the Legislature.

II.

¶5 in deciding whether to accept jurisdiction of this special action, we consider several questions. Because resolutions of some of these questions turns on whether this action involves legal or political issues, we define first the nature of the issues raised.

¶6 the Legislature asks us to determine whether Section 5 constitutes an "item of appropriation of money" within the meaning of Article 5, Section 7 of the Arizona Constitution. The Legislature argues that if the provision is not an item of appropriation, then the Governor's item veto power under the Arizona Constitution does not extend to Section 5. These issues, asserts the Legislature, are purely legal issues and appropriate for this Court's consideration. The Governor,

Page 1026

in contrast, argues that we can resolve the issues presented only by entering the political arena and that the Legislature has attempted to transform a political dispute into a constitutional question.

¶7 "Political questions," broadly defined, involve decisions that the constitution commits to one of the political branches of government and raise issues not susceptible to judicial resolution according to discoverable and manageable standards. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). A determination that an issue is a political question is "very different from determining that specific [governmental] action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in the case of a true political question." U.S. Dep't of Commerce v. Montana, 503 U.S. 442, 458, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992). A governor's decision whether to exercise a veto and a legislature's decision whether to attempt to override a veto clearly are political questions; both involve decisions committed to their respective branches of government. This case, however, does not involve a comparable decision because it asks us to decide whether the constitution permitted the Governor to exercise her veto power. The political question doctrine, therefore, provides no basis for judicial abstention in this matter.

¶8 we agree with the Legislature that this petition presents purely legal questions. To determine whether a branch of state government has exceeded the powers granted by the Arizona Constitution requires that we construe the language of the constitution and declare what the constitution requires. Such questions traditionally fall to the courts to resolve. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (recognizing that "[i]t is emphatically the province and duty of the judicial department to say what the law is"). Although each branch of government must apply and uphold the constitution, our courts bear ultimate responsibility for interpreting its provisions. See State v. Casey, 205 Ariz. 359, 362 ¶ 8, 71 P.3d 351, 354 (2003) (stating that interpretation of the state constitution is the courts' province).

¶9 our...

To continue reading

FREE SIGN UP