Babbitt v. Asta

Decision Date27 January 1976
Docket NumberCA-CIV,No. 2,2
Citation545 P.2d 58,25 Ariz.App. 547
PartiesBruce E. BABBITT, the Attorney General of the State of Arizona, Appellant, v. Ron ASTA, a duly elected Supervisor of Pima County, Arizona, Dee T. O'Neill, a duly appointed commissioner of the Planning and Zoning Commission of Pima County, Arizona, Roy M. Emrick, Patricia H. Waterfall, and Priscilla G. Robinson, residents of Pima County District 1, Appellees. 1983.
CourtArizona Court of Appeals


This was an action for declaratory relief under A.R.S. § 12--1831 Et seq. On cross motions for summary judgment the trial court held that a portion of A.R.S. § 11--803(B) (Supp.1975) violated the Equal Protection Clause of the Fourteenth Amendment and Art. 2, § 13 of the Arizona Constitution. The Attorney General has timely perfected this appeal from the judgment. For the reasons set forth in this opinion, we reverse.

The undisputed facts are as follows. On February 20, 1973, appellee Pima County Supervisor Ron Asta appointed appellee Dee T. O'Neill to a two-year term on the Pima County Planning and Zoning Commission. A.R.S. § 11--803(B), the statute that authorized the appointment, provides as follows:

'In the counties having five supervisorial districts, the county planning and zoning commission shall consist of ten members who shall be qualified electors of the county. Two members shall be appointed from each supervisorial district by the supervisor from that district and Not more than one of the two shall be a resident of an incorporated municipality. Members of the commission shall serve without compensation except for reasonable travel expenses. (Emphasis added)

When O'Neill was appointed to the Commission, she lived in Pima County outside the corporate limits of Tucson. On February 25, 1974, however, the area surrounding O'Neill's home was annexed by the City of Tucson and O'Neill became a Tucson resident. Since appellee Asta's other Commission appointee was also a Tucson resident, it became clear under § 11--803(B) that Asta could not reappoint O'Neill to a new term after the expiration of her current one. Accordingly, on February 7, 1975, Asta and O'Neill, and Roy Emrick, Patricia Waterfall and Priscilla Robinson, residents of Tucson, filed their complaint for declaratory relief in this action.

At the time this action was brought, 97.1 percent of the voters of appellee Asta's supervisorial district lived within the corporate limits of Tucson.

The trial court made the following findings of fact and conclusions of law:

'1. That the legislation that is the subject matter of this complaint disenfranchises certain persons on certain local issues.

'2. That the legislation gives to 3% Of the electorate the same voice on local issues as 97% Of the electorate in Pima County District No. 1.

3. That the overriding objective of equal protection of the laws is that there must be substantial equality of representation of the population among various districts so that the vote and the voice of any citizen is approximately equal in weight to that of any other citizen.

4. That there is no overriding, legitimate consideration in the instant matter to permit a divergent deviation of 97% To 3%.

5. That a statute that disenfranchises certain persons on local issues violates the equal protection rights guaranteed by the Constitution.


1. That A.R.S. 11--803, as amended, is unconstitutional and violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution and the equal privileges of citizenship secured by Article 2, Section 13 of the Arizona Constitution. This ruling is limited only to that clause that says 'not more than one of the two shall be a resident of an incorporated municipality.' Such portion of said statute is null and void.

2. That the Plaintiffs are awarded their costs in this action.

3. That each of the parties are to bear their own attorney's fees.'

The Attorney General now contends that the challenged portion of A.R.S. § 11--803(B) is constitutional and urges us to uphold it. A statute is presumed to be valid and the party asserting its unconstitutionality bears the burden of overcoming the presumption. Arizona R.I.C.A. Lands, Inc. v. Ainsworth, 21 Ariz.App. 38, 515 P.2d 335 (1973). We will therefore first examine appellees' argument in support of the judgment below.

Appellees argue that § 11--806(B) is invalid because it produces an 'unreasonable situation' when applied in this case. They note that the City of Tucson could annex the whole of Asta's supervisorial district at some time in the future. Since all the residents of his district would then be residents of an incorporated municipality, Asta would be limited by § 11--803(B) to appointing one member to the Planning and Zoning Commission--in direct contradiction to his duty under that same section to appoint two.

We agree that the scenario described by appellees would be anomalous. However, it is not within the power of this court to construe a statute on the basis of hypothetical conditions that have not yet occurred. Appellees' concerns, though clearly valid, are better addressed to the legislature than to us.

Appellees contend that § 11--803(B) offends the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They also contend that it violates Art. 2, § 13 of the Arizona Constitution. Art. 2, § 13 and the Equal Protection Clause have the same effect for all practical purposes, Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292 (1945); Edwards v. Alhambra Elementary School Dist. No. 63, 15 Ariz.App. 293, 488 P.2d 498 (1971), and we will therefore consider these contentions as one.

Appellees correctly note that courts will strictly scrutinize a statutory classification that infringes a fundamental right and that such a classification cannot be upheld unless necessary to effectuate a compelling state interest. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). They argue that by limiting the number of city residents that may be appointed to the Planning and Zoning Commission, § 11--803(B) infringes the fundamental right to vote 1 by subjecting the 97.1 percent of the residents of Asta's district who live in Tucson to a 'form of disenfranchisement.' In support of this agrument appellees cite Citizens for Community Action at the Local Level, Inc. v. Ghezzi, 386 F.Supp. 1 (W.D.N.Y.1974) and Reese v. Dallas County, Alabama, 505 F.2d 879 (5th Cir.1974). The United States Supreme Court has reversed the 5th Circuit decision in Reese. Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975). Appellees' reliance on the 5th Circuit's opinion in Reese is therefore somewhat ill advised. But Reese and Citizens are inapposite for an even more fundamental reason. Both Reese and Citizens involved elections.

As the Attorney General correctly points out, however, 'it is the power to appoint and not the right to vote that is at issue in this case.' We think Sailors v. Kent Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), which neither party has cited, is controlling on this point. In that case the Kent County, Michigan School Board members were chosen by delegates from local school boards. A three-judge panel upheld the Michigan statute authorizing that system and the Supreme Court affirmed. It noted:

'A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board.' 387 U.S. at 107, 87 S.Ct. at 1551, 18 L.Ed.2d at 653.

The Court held (1) the county school board exercised administrative functions and there was no constitutional reason why its members could not be chosen by appointment rather than by election; and (2) '(S)ince the choice of members of the county school board did not involve an election and since noen was required for these nonlegislative offices, The principle of 'one man, one vote' has no relevancy.' 387 U.S. at 111, 87 S.Ct. at 1553, 18 L.Ed.2d at 655 (Emphasis added). Although after Sailors the Surpeme Court rejected the legislative-administrative dichotomy as a test for determinating the applicability of the one person-one vote rule to public elections, Hadley v. Junior College Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), Sailors retains its authority to the extent it holds the one person-one vote rule inapplicable to appointive bodies of nonlegislative officers. See, Hadley, supra, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d at 52; Avery, supra, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d at 53--54.

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    • United States
    • Arizona Court of Appeals
    • February 28, 2017
    ...question of what effect such an order would have on the enforceability of an existing arrearages judgment. Babbitt v. Asta , 25 Ariz.App. 547, 549, 545 P.2d 58, 60 (1976) (appellate court will not construe a statute on basis of hypothetical conditions not yet occurred). ¶ 13 Scott additiona......
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    ...offense. We will not declare a statute unconstitutional based on hypothetical situations that are not before us. Babbitt v. Asta, 25 Ariz.App. 547, 549, 545 P.2d 58, 60 (1976). We also note that, although a driver who registers less than 0.10 BAC may not have violated section 28-692.B, that......
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    • Arizona Court of Appeals
    • August 30, 1990
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