Arizona Legislative Council v. Howe In and For County of Maricopa

• Decision Date: 22 October 1998
• Docket Number: No. CV-98-0363-SA,SPOKEN-HB,CV-98-0363-SA
• Citation: 192 Ariz. 378,965 P.2d 770
• Parties: , 281 Ariz. Adv. Rep. 3 The ARIZONA LEGISLATIVE COUNCIL, Petitioner, v. Hon. Joseph D. HOWE, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA, Respondent, The PEOPLE HAVE2518, a lawfully registered political committee; Jeff Singer, M.D., an individual, Real Parties in Interest. In Division
• Court: Arizona Supreme Court

Page 770

965 P.2d 770

192 Ariz. 378, 281 Ariz. Adv. Rep. 3

The ARIZONA LEGISLATIVE COUNCIL, Petitioner, v. Hon. Joseph D. HOWE, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF MARICOPA, Respondent The PEOPLE HAVE SPOKEN-HB 2518, a lawfully registered political committee; Jeff Singer, M.D., an individual, Real Parties in Interest.

No. CV-98-0363-SA.

Supreme Court of Arizona,

In Division.

Oct. 22, 1998.

Gallagher & Kennedy, P.A. by John E. Lundin, Elliot Talenfeld, Don D. Skypeck, Jeffrey D. Gross, Phoenix, for Petitioner.

Brown & Bain, P.A. by Paul F. Eckstein, John A. Buttrick, John J. Tuchi, Phoenix, for Real Parties in Interest.

Grant Woods, Arizona Attorney General by Thomas I. McClory, M. Colleen Connor, Phoenix, for Secretary of State, Arizona Attorney General.

OPINION

FELDMAN, Justice.

¶1 A group calling itself The People Have Spoken--HB 2518 (People), a registered political committee under A.R.S. § 16-902.01, filed a special action in the superior court against the Arizona Legislative Council (Council), the Secretary of State, and the Attorney General. People sought an order enjoining or prohibiting the Secretary of State from publishing an analysis adopted by the Council in the voter publicity pamphlet to be produced prior to the November 1998 general election. People also sought to prohibit the Secretary of State from using similar language on the ballot itself. The superior court judge ruled in favor of People, and the Council seeks review of that ruling through this original special action.

FACTS

¶2 The facts are uncontested. In 1996, Arizona voters approved Proposition 200, an initiative proposal that would allow Arizona physicians to prescribe Schedule I drugs, ¹ including marijuana, heroin, and over 100 others, to treat a seriously or terminally ill patient if documented scientific research concluded that the drug would provide medical benefits for treatment of the patient's disease or condition and if a second physician concurred in writing. A doctor could prescribe such drugs even though no federal agency had approved them for medical use.

¶3 During its 1997 regular session, the Arizona Legislature passed, and the Governor signed, HB 2518, which amended Proposition 200 by providing that either Congress or the Food and Drug Administration (FDA) would have to approve marijuana for medical use and the Drug Enforcement Agency (DEA) would have to reclassify marijuana as something other than a Schedule I drug before it could be prescribed in Arizona. ² Once marijuana is so approved and reclassified, Arizona physicians would then be free to prescribe not only marijuana but any other Schedule I drugs, even if those drugs had not been federally approved or reclassified. The other requirements of Proposition 200 were retained in HB 2518.

¶4 Needless to say, both Proposition 200 and the Legislature's attempt to amend it by HB 2518 were controversial. Before the effective date of HB 2518, People sought to refer it to the voters pursuant to Arizona Constitution article IV, pt. 1, § 1(3), which provides that five percent of the qualified electors "may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the Legislature." People obtained well over the required 56,000 valid signatures on the referendum petitions. Thus HB 2518, designated as Proposition 300, will be on the November 3, 1998 general election ballot. A "yes" vote will validate the legislative amendment to Proposition 200; a "no" vote will leave Proposition 200 in its original form.

¶5 Under our constitutional provisions and the statutes implementing them, proponents and opponents of an initiative or referendum proposal may file arguments with the Secretary of State, who is required to print those arguments in a publicity pamphlet to be mailed to all registered Arizona voters before the election. For details of the procedure and its history, see Fairness & Accountability in Insurance Reform v. Greene, 180 Ariz. 582, 587-88, 886 P.2d 1338, 1343-44 (1994). A.R.S. § 19-123(A)(4) also provides that the publicity pamphlet must contain "a legislative council ³ analysis of the ballot proposal as prescribed pursuant to A.R.S. § 19-124." Section 19-124(B) adds more procedural detail and requires the Council to provide an analysis of the proposal for inclusion in the publicity pamphlet. The analysis is to be "an impartial analysis of the provisions of each ballot proposal ... [including] a description of the measure ... written in clear and concise terms avoiding technical terms wherever possible." The analysis "may contain background information, including the effect of the measure on existing law." Id.

¶6 Council staff prepared a draft analysis of the referendum proposal. At the Council's July 7, 1998 meeting, the draft was considered, amendments were suggested by Council members, and a revised draft was approved on July 9. On July 24, People filed its superior court special action attacking the analysis as misleading, incorrect, and biased on a number of grounds. People also claimed the Secretary of State had not properly prepared the descriptive title of the proposition for the official ballot. That title is to contain

a summary of the principal provisions of the measure, not to exceed fifty words, which shall be prepared by the secretary of state and approved by the attorney general. Immediately following the descriptive title of each measure there shall be printed [on the ballot] the phrases:

A "yes" vote shall have the effect of [to be filled in] .

A "no" vote shall have the effect of [to be filled in] .

A.R.S. § 19-125(D). The Secretary of State attempted to comply with these instructions by using language similar to that in the analysis prepared by the Council for the publicity pamphlet. The language used on the ballot was approved by the Attorney General.

¶7 The Council met in public session on July 29, after the superior court action was filed. It heard from People's representatives and then revised the analysis to resolve some of People's objections but rejected several other revisions requested by People. After the July 29 revisions, the analysis read as follows:

ANALYSIS BY LEGISLATIVE COUNCIL

(In Compliance with A.R.S. § 19-124)

In 1996, the voters passed the Drug Medicalization, Prevention and Control Act of 1996. The Act allowed medical doctors to prescribe 116 Schedule I drugs, including heroin, LSD, marijuana and certain analogs of PCP to treat a disease or to relieve the pain and suffering of a seriously ill or terminally ill patient.

After the 1996 Act passed, the State Legislature enacted House Bill 2518. Before the 116 Schedule I drugs could be prescribed by a doctor, House Bill 2518 requires marijuana to be authorized by the federal food and drug administration or be authorized by the United States Congress. This proposition and the 1996 Act would conditionally allow a doctor to prescribe a Schedule I drug to seriously ill or terminally ill patients. Before prescribing a Schedule I drug, the doctor would have to document that scientific research supports the use of the drug and would have to obtain from a second doctor a written opinion that prescribing the drug is appropriate. A patient who receives, possesses or uses the drug, as prescribed by a doctor would not be subject to state criminal penalties.

If this proposition passes, doctors could begin prescribing Schedule I drugs, including heroin, LSD, marijuana and certain analogs of PCP, only after the federal food and drug administration approves or the United States Congress authorizes the medical use of marijuana or reclassifies marijuana as a drug that doctors can prescribe. If this proposition does not pass, under state law doctors could continue to prescribe Schedule I drugs, including heroin, LSD, marijuana and certain analogs of PCP, without any further authorization from Congress or the FDA.

¶8 Dissatisfied with the final wording, People pursued their superior court special action. The trial judge granted relief on July 31, 1998, concluding that the Council's analysis failed to satisfy A.R.S. § 19-124 because it did not comply with the requirement of impartiality and was not written in clear and concise terms. The judge also concluded that the Secretary of State failed to comply with A.R.S. § 19-125 in preparing the descriptive title and the "yes/no" language. The judge thus ordered modification of the Council's analysis as well as the ballot's descriptive title and "yes/no" language. He further ordered that if the Council did not provide the Secretary of State "with a substitute analysis of Proposition 300 that meets with this court's directives, the pamphlet shall be printed without any Legislative Council analysis of Proposition 300."

¶9 The Council then challenged these orders by original special action in this court. See Rule 1, Ariz.R.P.Spec.Act. Following oral argument, we accepted jurisdiction and vacated the trial judge's order, stating that the Secretary of State "may print the ballots in accordance with the Council's July 29 analysis and with the descriptive title and 'yes/no' language prepared by the Secretary of State." We also stated that this opinion would follow.

DISCUSSION

A. Jurisdiction

1. Special action jurisdiction

¶10 Our constitution gives us original jurisdiction over "mandamus, injunction and other extraordinary writs to state officers." Ariz. Const. art. VI, § 5(1). We generally exercise this jurisdiction through special action proceedings. See Rule 1, Ariz.R.P.Spec.Act. As with common-law writs, our decision to accept special action jurisdiction is highly discretionary. Given the time constraints for printing and mailing the publicity pamphlets in this case, as in Greene, there was no adequate remedy by any other procedure or in any other forum. Hence we accepted jurisdiction and decide the matter on the merits. See Green...