Maricopa County v. State
| Decision Date | 14 March 1994 |
| Docket Number | No. TX,TX |
| Citation | 871 P.2d 261,178 Ariz. 140 |
| Parties | MARICOPA COUNTY v. STATE of Arizona; Arizona Department of Revenue. 93-00469. |
| Court | Arizona Tax Court |
The issue in this case is whether Section 2 of House Bill 2007 is an unconstitutional gift of public money for private use. The bill permits property owners to file retroactive certifications of agricultural use and grants refunds of taxes assessed under non-agricultural use classifications.
Maricopa County (the County) brought this Motion for Summary Judgment seeking a declaration that Section 2 of House Bill 2007 (enacted as A.R.S. § 42-168) is an unconstitutional gift of public funds. 1
The Arizona Department of Revenue (the Department) and a group of interested property owners (Intervenors) argue that Section 2 of House Bill 2007 is not an unconstitutional gift of public monies. They take the position that the statute is merely a procedural enactment and is one done for the longstanding public purpose of supporting agricultural use of property in Arizona. 2
On April 14, 1993, House Bill 2007 was signed by the Governor. Section 2 of the bill amends Title 42 of the Arizona Revised Statutes, A.R.S. § 42-168, by granting certain property owners a retroactive avenue of relief for obtaining agricultural use classification of property which was originally denied such classification due to the owner's failure to comply with the requirements of A.R.S. § 42-167(D). 3
Section 2 provides that taxpayers who own property used for agricultural purposes which meets the criteria prescribed under A.R.S. § 42-167(A), but who failed to file the annual certification of eligibility for any year as required by A.R.S. § 42-167(D), may file the agricultural use certification form for that year with the county assessor on or before February 15, 1994. If the taxpayer submits the certification form, together with a sworn statement that the certification is true and correct, and the assessor is satisfied the property meets the requirements of A.R.S. § 42-167(A), then the property is to be reclassified, the value is to be redetermined, and a certificate of revaluation issued to the owner. The owner may then submit the certificate to the county treasurer for a refund. 4
The Court agrees with the County that Section 2 of House Bill 2007 is an unconstitutional gift of public monies.
This Court knows that legislative enactments are entitled to a presumption of constitutionality; however, this Court is also aware of its duty to uphold the Arizona Constitution. When the Court is determining the constitutionality of a legislative enactment, the Court is not concerned with the wisdom, necessity, propriety or expediency of the legislation in question; those are matters exclusively within the province of the legislature. Industrial Development Authority of the City of Pinal v. Nelson, 109 Ariz. 368, 371, 509 P.2d 705, 708 (1973).
The County argues that Section 2 of House Bill 2007 operates as a gift of public funds without a public purpose. Article 9, section 7, of the Arizona Constitution provides, in pertinent part:
Neither the State, nor any county ... shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation....
This prohibition prevents governmental bodies from depleting the public treasury by giving advantages to special interests or by engaging in non-public enterprises. Wistuber v. Paradise Valley Unified School, 141 Ariz. 346, 349, 687 P.2d 354, 709 (1984); State v. Northwestern Mutual Insurance Company, 86 Ariz. 50, 53, 340 P.2d 200, 201 (1959). Either objective may be violated by a transaction even though the transaction has surface indicia of a public purpose. Wistuber, 141 Ariz. at 349, 687 P.2d at 709.
Wistuber, 141 Ariz. at 349, 687 P.2d at 709. The test to be applied in determining whether an expenditure violates Article 9, section 7, has been stated as follows:
[M]erely because the private entity 'uses public funds or property for a 'public purpose' is not sufficient, in and of itself, to remove that use from the provisions' of the Constitution. [City of Tempe v. Pilot Properties, Inc., 22 Ariz.App. 356, 362-63, 527 P.2d 515, 521-22 (1974).] There must also be 'consideration' which is not 'so inequitable and unreasonable that it amounts to an abuse of discretion,' thus providing a subsidy to the private entity.
Wistuber, 141 Ariz. at 349, 687 P.2d at 709. "Subsidy" has been defined as:
'[A] grant of fund or property from a government, to a private person or company to assist in the establishment or support of an enterprise deemed advantageous to the public.'
'Assist' means 'to give support or aid to, especially in some undertaking or effort,' Webster's 3rd New International Dictionary (1969).
City of Tempe v. Pilot Properties, Inc., 22 Ariz.App. 356, 362, 527 P.2d 515, 521 (App.1974) (citation omitted). The concession given in exchange for public funds must be more than a mere gratuity with no possible value enuring to the state or its political subdivisions. Schrey v. Allison Steel Manufacturing, Inc., 75 Ariz. 282, 288, 255 P.2d 604, 608 (1953).
Here, Section 2 of House Bill 2007 allows a select group of property owners to obtain a refund or a cancellation of taxes which became due when they failed to comply with specific statutory mandates. The Department and the Intervenors vigorously argue that allowing the refund or cancellation will further the public purpose of supporting agricultural use of property in Arizona. However, to support agricultural use, the legislature may not make a gift or provide a subsidy of public funds to a select few. Only a small group of owners will receive the benefit of Section 2; only those owners who either ignored the explicit filing requirements of A.R.S. § 42-167(D) or those who have now repossessed their land after selling it to persons who ignored A.R.S. § 42-167(D). The County gets nothing in return that it would not have gotten had these individuals timely complied with the pertinent statutes.
In fact, the County will be out more than simply the tax revenue itself. The County will be forced to expend valuable time and resources verifying the past due petitions, revaluing the property, processing the refunds and paying interest, if due, on the money refunded. These expenditures are not necessitated by any act of the County, but rather are necessitated because the property owners initially failed to fulfill the obligations required of them to receive agricultural use classification.
In A.R.S. § 42-167(D) the legislature made the filing of certification and application forms mandatory in order to obtain the favorable agricultural use classification. If an owner fails to file the required form the County "shall not " give the owner agricultural use classification. A.R.S. § 42-167(D) (emphasis added). Now Section 2 abrogates the mandatory non-classification as agricultural property of A.R.S. § 42-167(D). It operates no differently than simply handing some owners a check drawn on the public treasury to pay their taxes. This clearly constitutes a gift of public monies. The question then becomes whether that gift is for a public purpose sufficient to remove it from the prohibitions of Article 9, section 7.
In determining whether Section 2 is one supported by a "public purpose" we are not aided by House Bill 2007 itself. The bill does not contain a clause disclosing the legislature's purpose or intent in enacting the law. It contains only the standard "emergency" clause (in Section 4) which states simply that "[t]his act is an emergency measure that is necessary to preserve the public peace, health or safety...." There are no serious assertions by either the Department or the Intervenors, that without Section 2 there will be a breach of the "public peace," or that somehow the public's health or safety will be threatened. In fact, the Department and the Intervenors have not provided this Court with any showing that the public, not just a small group of the community, benefits from Section 2.
The Department and the Intervenors assert that the Court does not need a specific purpose statement to find that the enactment is designed to further agricultural use of property. They argue that the Court may simply glean the purpose from other statutes and cases. However, the intents and purposes behind Section 2 have not previously been discussed nor can this Court ascertain specifically what the legislature intended.
This Court recognizes that it is allowable for a small group of the community to receive incidental benefits from the expenditure of public funds. Industrial Development Authority of the City of Pinal, 109 Ariz. at 372-73, 509 P.2d at 710-11. However, the primary purpose for the expenditure must be for the benefit of the public, not private parties as is the case here. Section 2 contains no requirement that the funds refunded be used to further agriculture or further any other public purpose.
A donation of public property that is deemed by the city fathers to be for the public good, in our opinion falls squarely within the prohibition of our constitution and the purpose of such provision as determined by our Supreme Court.... ...
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