Ariz. Citizens Clean Elections Comm'n v. Brain

• Decision Date: 24 October 2013
• Docket Number: No. 1 CA–SA 13–0239.,1 CA–SA 13–0239.
• Citation: 672 Ariz. Adv. Rep. 25,311 P.3d 1093,233 Ariz. 280
• Parties: ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION; Louis J. Hoffman; Victoria Steele; Arizona Advocacy Network, Petitioners, v. The Honorable Mark H. BRAIN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Ken Bennett, in his official capacity as Secretary of State; Andy Biggs, in his official capacity as President of the Arizona State Senate; Andrew M. Tobin, in his official capacity as Speaker of the Arizona House of Representatives, Real Parties in Interest.
• Court: Arizona Court of Appeals

233 Ariz. 280

311 P.3d 1093

672 Ariz. Adv. Rep. 25

ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION; Louis J. Hoffman; Victoria Steele; Arizona Advocacy Network, Petitioners,

v.The Honorable Mark H. BRAIN, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Ken Bennett, in his official capacity as Secretary of State; Andy Biggs, in his official capacity as President of the Arizona State Senate; Andrew M. Tobin, in his official capacity as Speaker of the Arizona House of Representatives, Real Parties in Interest.

No. 1 CA–SA 13–0239.

Court of Appeals of Arizona,

Division 1, Department C.

Oct. 24, 2013.

Ballard Spahr, LLP By Joseph A. Kanefield and Brunn W. Roysden, III, Phoenix, Attorneys for Petitioner Arizona Citizens Clean Elections Commission.

Osborn Maledon, P.A. By Mary R. O'Grady and Timothy J. Eckstein and Christina C. Rubalcava, Phoenix, and Arizona Center for

Law in the Public Interest By Timothy M. Hogan, Phoenix, Attorneys for Petitioners Louis J. Hoffman, Victoria Steele, and Arizona Advocacy Network.

Richard Rice, Acting Arizona Attorney General By David D. Weinzweig, Senior Litigation Counsel and Daniel P. Schaack, Assistant Attorney General, Phoenix, Attorneys for Real Party in Interest Ken Bennett, Secretary of State.

Snell & Wilmer, LLP By Michael T. Liburdi and Kelly A. Kszywienski, Phoenix, and Office of the President, Arizona State Senate By Gregrey G. Jernigan, Phoenix, and Office of the Speaker, Arizona House of Representatives By Peter A. Gentala and Pele K. Peacock, Phoenix, Attorneys for Real Parties in Interest Andy Biggs, President of the Arizona State Senate, and Andrew M. Tobin, Speaker of the Arizona House of Representatives.

Goldwater Institute Scharf–Norton Center for Constitutional Litigation By Clint Bolick and Kurt M. Altman and Taylor C. Earl and Nicholas C. Dranias, Phoenix, Attorneys for Amicus Curiae Stephen Pierce, Toby Farmer, and Southern Arizona Conservative PAC.

OPINION

NORRIS, Judge.

¶ 1 This special action arises from an order of the superior court refusing to preliminarily enjoin the provisions of House Bill 2593 that changed campaign contribution limits for statewide and legislative candidates for public office. According to Petitioners, these provisions violate the Citizens Clean Elections Act and the Voter Protection Act. Because the superior court misconstrued the section of the Clean Elections Act that established campaign contribution limits for those candidates--which, as we explain, remains in effect--and failed to make adequate findings, we accepted special action jurisdiction, granted relief, and preliminarily enjoined the Secretary from enforcing or implementing the provisions of House Bill 2593 as applied to candidates for statewide and legislative office, with an opinion to follow. This is that opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In the November 1998 general election, Arizona voters approved Proposition 200, an initiative measure commonly referred to as the Clean Elections Act. See Proposition 200, 1999 Ariz. Sess. Laws 1942, 1942–65 (codified at Ariz. Rev. Stat. (“A.R.S.”) §§ 16–940 to –961). As relevant here, the Clean Elections Act created an alternative campaign financing system whereby candidates for statewide and legislative office who agreed to limit their fundraising and spending would receive public campaign financing. In addition to establishing the Arizona Citizens Clean Elections Commission--one of the Petitioners here-- to administer this system, the Clean Elections Act imposed campaign contribution limits for candidates for statewide and legislative office who opted not to participate in the public financing system (“non-participating candidates”). Specifically, in what became codified as A.R.S. § 16–941(B), the Clean Elections Act restricted how much money a contributor could give to a non-participating candidate each election cycle, the aggregate amount a non-participating candidate could accept from political committees in an election cycle, and the aggregate amount an individual could give on an annual basis to all non-participating candidates and political committees that give to such candidates (collectively, “the § 941 limits”). 1999 Ariz. Sess. Laws at 1943–44.

¶ 3 The § 941 limits were not set out in dollars and cents. Instead, A.R.S. § 16–941(B) barred non-participating candidates from accepting contributions in excess of amounts 20% less than the limits specified in another Arizona statute, A.R.S. § 16–905, a 1986 voter-approved initiative that had established campaign contribution limits--limits the Legislature increased in 1993, 1994, and 1997.¹ Thus, in practical terms, A.R.S. § 16–941(B) adopted contribution limits for statewide and legislative candidates at 80% of the limits identified in A.R.S. § 16–905. As approvedby the voters in 1998, A.R.S. § 16–941(B) read as follows:

Notwithstanding any law to the contrary, a non-participating candidate:

1. Shall not accept contributions in excess of an amount that is twenty percent less than the limits specified in section 16–905, subsections A through G, as adjusted by the Secretary of State pursuant to section 16–905, subsection J. Any violation of this paragraph shall be subject to the civil penalties and procedures set forth in section 16–905, subsections L through P and section 16–924.

1999 Ariz. Sess. Laws at 1943–44.

¶ 4 In addition to enacting the Clean Elections Act, the voters also approved the Voter Protection Act (“VPA”) in the 1998 general election. See Proposition 105, 1999 Ariz. Sess. Laws 1937, 1941. The VPA limits the Legislature's authority to modify voter-approved initiatives and referenda. Id. As relevant here, the VPA bars the Legislature from amending or superseding a voter-approved initiative unless the proposed legislation “furthers the purposes” of the initiative and is approved by a three-fourths vote in the House of Representatives and Senate. Ariz. Const. art. 4, pt. 1, § 1(6)(C), (14).

¶ 5 In April 2013, the Governor signed House Bill 2593, which had passed both houses of the Legislature by a simple majority vote. 2013 Ariz. Sess. Laws, ch. 98 (1st Reg. Sess.). House Bill 2593 did not, on its face, amend A.R.S. § 16–941(B). Id. Instead, House Bill 2593 amended A.R.S. § 16–905 by increasing the amount of money a contributor could give to a non-participating candidate running for a statewide or legislative office. Id. at § 2. By way of illustration, the individual contribution limit per election cycle for a legislative candidate increased from $390 to $4000.²Id. House Bill 2593 also eliminated the restrictions on the aggregate amount of money a non-participating candidate could receive from political committees each election cycle as well as the aggregate amount an individual could contribute to non-participating candidates and political committees that give to such candidates. Id.

¶ 6 In July 2013, the Commission and the other Petitioners sued the Secretary of State and requested a declaration that the provisions of House Bill 2593 that increased the limits for contributions to non-participating candidates for statewide and legislative office and repealed the aggregate limits on annual contributions by individuals to such candidates, as well as political committees that give to such candidates, were unconstitutional. See 2013 Ariz. Sess. Laws, ch. 98, §§ 1, 2. Petitioners also requested an injunction enjoining the Secretary from preliminarily and permanently implementing and enforcing those specific provisions of House Bill 2593.³ In requesting such relief, Petitioners argued A.R.S. § 16–941(B) fixed the § 941 limits at 80% of the limits set out in A.R.S. § 16–905 as of 1998, subject to adjustment for inflation by the Secretary. Although Petitioners also acknowledged the Legislature could amend the § 941 limits if it complied with the requirements of the VPA, they argued that because the Legislature had not done so in passing House Bill 2593, it was unconstitutional under the VPA. In a separate motion, Petitioners requested the court to preliminarily enjoin the Secretary from implementing Sections 1 and 2 of House Bill 2593 with respect to non-participating candidates for statewide and legislative office.

¶ 7 In response, the Secretary, joined by the President of the Senate and the Speaker of the House of Representatives as Intervenors, argued A.R.S. § 16–941(B) merely established a formula for the calculation of the § 941 limits and that, consequently, the Legislature could adjust the § 941 limits by amending A.R.S. § 16–905 which was not subject to the VPA. Thus, they argued, House Bill 2593 was constitutional. Separately, the President and Speaker also argued that if A.R.S. § 16–941(B) fixed campaign contribution limits as of A.R.S. § 16–905's 1998 limits, subject only to adjustment by the Secretary, those limits were unconstitutional under the Arizona Constitution and the First Amendment to the United States Constitution.

¶ 8 After briefing and argument, the superior court refused to preliminarily enjoin the Secretary from implementing House Bill 2593, which then went into effect on September 13, 2013. Among other things, the superior court agreed the Clean Elections Act adopted a formula “which required the use of amounts specified in § 16–905,” rejected Petitioners' construction of A.R.S. § 16–941(B), and, accordingly, found Petitioners had failed to show a strong likelihood of success on the merits. And, “in light of the First Amendment issues presented,” the court stated it was unable to “conclude at this juncture that irreparable harm will occur, nor that the balance of the hardships or public interest favors the entry of a preliminary injunction.”

JURISDICTION

¶ 9 In the exercise of our discretion, we accepted special action jurisdiction. The issues addressed in this special action present questions of law of statewide importance. Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8, 212...