Forty-Seventh Legislature v. Napolitano, CV-06-0079-SA.

• Citation: 213 Ariz. 482,143 P.3d 1023
• Decision Date: 12 September 2006
• Docket Number: No. CV-06-0079-SA.,CV-06-0079-SA.
• Parties: 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.
• Court: Supreme Court of Arizona

143 P.3d 1023

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.

COPYRIGHT MATERIAL OMITTED

Meagher & Geer, P.L.L.P. by Gary L. Lassen, Thomas H. Crouch, Scottsdale, 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 by Timothy A. Nelson, General Counsel, Nicole C. Davis, Deputy General Counsel, Phoenix and Perkins Coie Brown & Bain P.A. by Paul F. Eckstein, Joel W. Nomkin, Charles A. Blanchard, Lee Stein, Phoenix, Attorneys for Governor Janet Napolitano.

Terry Goddard, Arizona Attorney General by Mary O'Grady, Solicitor General, Phoenix, Attorneys for Arizona Department of Administration and William Bell, Director, and Arizona State Personnel Board and Jeff Grant, Chair.

Ryley Carlock & Applewhite by N. Warner Lee, John M. Fry, Phoenix, Attorneys for Amicus Curiae National Conference of State Legislatures.

Osborn Maledon, P.A. by Diane M. Johnsen, Thomas L. Hudson, Diane M. Meyers, Phoenix, Attorneys for Amicus Curiae National Governors Association.

OPINION

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 resolution 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 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 conclusion that determining the validity of an item veto presents a justiciable legal issue breaks no new legal ground. We have, on many occasions, considered whether particular gubernatorial actions exceeded a governor's constitutional authority. See, e.g., Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22 (1992) (reviewing a legislator's challenge to gubernatorial item vetoes); Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139 (1923) (reviewing governor's veto of the legislature's tax imposition); Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923) (accepting jurisdiction to determine the scope of the governor's veto power); Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773 (1915) (reviewing governor's item veto of part of a general appropriations bill). In deciding whether to accept jurisdiction and resolve the substantive issues raised in this action, therefore, we begin with the understanding that the action raises legal, not political, issues.

A.

¶ 10 This Court has original jurisdiction to issue extraordinary writs against state officers. Ariz. Const. art. 6, § 5; Rios, 172 Ariz. at 5, 833 P.2d at 22. A party seeking such relief must proceed by way of a special action. See Ariz. R.P. Spec. Act. 1. As we noted in Rios, "[i]n limited circumstances, a judicial proceeding by way of special action may be appropriate to test the constitutionality of executive conduct." 172 Ariz. at 5, 833 P.2d at 22. We thus have jurisdiction to grant the requested relief.

¶ 11 Whether to accept jurisdiction, however, remains a highly discretionary decision. State Bar Committee Note, Ariz. R.P. Spec. Act. 3; see also McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268, 275 ¶ 35, 100 P.3d 18, 25 (2004). In this case, several factors argue in favor of accepting jurisdiction. The issues presented are of public importance: Limiting the actions of each branch of government to those conferred upon it by the constitution is essential to maintaining the proper separation of powers. See Ariz. Const. art. 3 (stating that Arizona's three branches of government "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others"). Moreover, we last considered the scope of the Governor's item veto authority fifteen years ago in Rios, and the two political branches obviously disagree in good faith about the scope and meaning of that opinion, making the issues raised here likely to recur.³ Because of these exceptional circumstances, we conclude that this is one of those rare cases that justify the exercise of our special action jurisdiction.

B.

¶ 12 The fact that this action raises issues appropriate for our consideration does not end our inquiry. We next consider whether the Legislature has standing to bring this action. Although "we are not constitutionally constrained to decline jurisdiction based on lack of standing," Sears v. Hull, 192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998), "[c]oncern over standing is particularly acute" when "legislators challenge actions undertaken by the executive branch," Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 20, 81 P.3d 311, 316 (2003). Good reason exists for our caution: "Without the standing requirement, the judicial branch would be too easily coerced into resolving political disputes between the executive and legislative branches, an arena in which courts are naturally reluctant to intrude." Bennett, 206 Ariz. at 525 ¶ 20, 81 P.3d at 316.

¶ 13 The Governor argues that these petitioners, like those in Bennett, lack standing. In Bennett, four state legislators, including the President of the Senate and the Speaker of the House of Representatives, brought a...