CITIZENS CLEAN ELECTIONS COM'N v. Myers

• Decision Date: 16 June 2000
• Docket Number: No. CV-00-0055-SA., No. CV-00-0054-SA
• Citation: 196 Ariz. 516,1 P.3d 706
• Parties: CITIZENS CLEAN ELECTIONS COMMISSION, Petitioner, v. Hon. Robert D. MYERS, Presiding Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent, VotePac, a registered Arizona political committee, David Armstead, Edward J. Cirrillo, Rick Lavis, and Betty Rockwell, Real Parties in Interest. Arizonans For Clean Elections, Petitioner/Defendant-Intervenor, and Citizens Clean Elections Commission, Defendant-Intervenor, v. Hon. Robert D. Myers, Judge of Maricopa County Superior Court, Respondent, and Betsy Bayless, et al., Respondents/Defendants, and VotePac, a registered Arizona political committee, David Armstead, Edward J. Cirrillo, Rick Lavis, and Betty Rockwell, Respondents/Plaintiffs, Real Parties in Interest.
• Court: Arizona Supreme Court

1 P.3d 706

196 Ariz. 516

CITIZENS CLEAN ELECTIONS COMMISSION, Petitioner, v.Hon. Robert D. MYERS, PresidingJudge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent,VotePac, a registered Arizona political committee, David Armstead, Edward J. Cirrillo, Rick Lavis, and Betty Rockwell, Real Parties in Interest.

Arizonans For Clean Elections, Petitioner/Defendant-Intervenor, andCitizens Clean Elections Commission, Defendant-Intervenor, v.Hon. Robert D. Myers, Judge of Maricopa County Superior Court, Respondent, andBetsy Bayless, et al., Respondents/Defendants, andVotePac, a registered Arizona political committee, David Armstead, Edward J. Cirrillo, Rick Lavis, and Betty Rockwell, Respondents/Plaintiffs, Real Parties in Interest.

Nos. CV-00-0054-SA, CV-00-0055-SA.

Supreme Court of Arizona, En Banc.

June 16, 2000.

Janet A. Napolitano, Attorney General By W. Scott Bales, Joseph A. Kanefield and Dennis K. Burke, Assistant Attorneys General, Phoenix, Attorneys for Citizens Clean Elections Commission.

Meyers, Taber, Meyers By Lisa T. Hauser, J. Tyrell Taber, Phoenix, Attorneys for VotePac, et al.

Arizona Center for Law in the Public Interest By Timothy M. Hogan, Jennifer B. Anderson and Tina A. Calos, Phoenix, Attorneys for Arizonans for Clean Elections.

Janet A. Napolitano, Attorney General By W. Scott Bales, Joseph A. Kanefield, Dennis K. Burke, and Charles S. Pierson, Assistant Attorneys General, Phoenix, Attorneys for Citizens Clean Elections Commission and Betsey Bayless, Secretary of State.

Meyers, Taber, Meyers By Lisa T. Hauser, J. Tyrell Taber, Phoenix, Attorneys for VotePac, et al.

OPINION

MARTONE, Justice.

¶ 1 These are consolidated petitions for special action brought by the Citizens Clean Elections Commission and the Arizonans for Clean Elections against VotePac and others seeking expedited review of an order of the Superior Court of Arizona in Maricopa County holding that the Citizens Clean Elections Act, A.R.S. §§ 16-940 to -961, violates the Arizona Constitution and is thus invalid.Given the imminence of the year 2000 general election and its statewide importance, we agreed with the parties that this case presented an appropriate occasion in which to exercise special action jurisdiction directly in this court.SeeRule 7(b), R.P. Spec. Actions.

I.Background

¶ 2 The Citizens Clean Elections Act was adopted by the people as an initiative.It establishes a complex system of public campaign financing for participating candidates who agree to limit their fund raising and spending in statewide elections.It also reduces contribution limits for candidates who choose not to participate.SeeA.R.S. § 16-941.The Citizens Clean Elections Commission is responsible for administering the program.SeeA.R.S. § 16-955.Arizonans for Clean Elections is the committee that promoted the initiative measure.VotePac is a political committee which, along with the individual real parties in interest, brought an action in the Superior Court of Arizona in Maricopa County against the Governor and Secretary of State seeking a declaration of the Act's invalidity under the Arizona Constitution.There are thus no federal issues before us.The defendants chose not to participate and instead deferred to the intervenors, Citizens Clean Elections Commission and Arizonans for Clean Elections.Agreeing that there were no factual disputes, the parties filed cross-motions for summary judgment.

¶ 3The state constitutional attacks revolve around the ways in which persons become members of, and are removed from, the Citizens Clean Elections Commission.Under the Act, members are appointed by statewide public officials, beginning with the Governor, by alternating political party affiliation.A.R.S. § 16-955(B) to (D)."[M]embers of the supreme court in order of seniority" are among the officials who may appoint.A.R.S. § 16-955(C).It has happened that the next highest ranking statewide officeholders were members of this court, each of whom promptly disqualified himself and herself.

¶ 4 The officeholders must appoint from lists of three candidates nominated by the Commission on Appellate Court Appointments, A.R.S. § 16-955(B) to (C), a commission the constitution vests with the responsibility to screen and nominate candidates for appellate judgeships.SeeAriz. Const. art. VI, §§ 36and37.The Chief Justice of this court is the chair of the Commission on Appellate Court Appointments.Id. at § 36.Members of the Clean Elections Commission may be removed by the Governor for statutory causes, but only with the concurrence of the senate.A.R.S. § 16-955(E).

¶ 5The trial court held that the involvement of members of this court on the Commission on Appellate Court Appointments and in the appointment of members to the Clean Elections Commission did not violate the separation of powers doctrine; that subjecting the Governor's removal authority to senate approval did violate the doctrine of separation of powers, but that such provision was severable; that the title "Citizens Clean Elections Act" is constitutionally valid; but that the expansion of the duties of the Commission on Appellate Court Appointments beyond the scope of judicial appointments was repugnant to the Arizona Constitution and such provision was not severable.

¶ 6 In their consolidated petitions for special action, the Citizens Clean Elections Commission and Arizonans for Clean Elections contend that the trial court erred in concluding that the use of the Commission on Appellate Court Appointments to nominate candidates for appointment to the Citizens Clean Elections Commission violated the Arizona Constitution.If it does, though, they claim that part of the Act is severable and thus the remainder of the Act should survive.They also contend that the trial court erred in concluding that the senate's role in the removal of commission members violated separation of powers.

¶ 7 On cross-petition, VotePac contends that the trial court erred in concluding that the involvement of members of this court on the Commission on Appellate Court Appointments and in the appointment process did not violate separation of powers.It also contends that the trial court erred in concluding that the title of the Act was substantively valid under the constitution.

II.Commission on Appellate Court Appointments

¶ 8 Article VI, sections 36 and 37 of the Arizona Constitution vest the Commission on Appellate Court Appointments with but one function: the authority to screen and nominate candidates to the Governor for appointment to the appellate courts of Arizona.These provisions contain no express grant of power to the legislature to enlarge the function or scope of the Commission.SeeAriz. Const. art. VI, §§ 36and37.In contrast, other article VI grants of power do contain some express grants of authority to the legislature.For example, article VI, section 5 specifically describes the jurisdiction of this court, along with "[s]uch other jurisdiction as may be provided by law."Ariz. Const. art. VI, § 5(6).Article VI, section 9 allows the legislature to create an intermediate appellate court and give it such "jurisdiction, powers, duties and composition ... [as] shall be provided by law."Article VI, section 14 defines the jurisdiction of the superior court, along with "such other jurisdiction as may be provided by law."Ariz. Const. art. VI, § 14(11).Article VI, section 32 provides for the jurisdiction of the justice courts and other "courts inferior to the superior court," along with such jurisdiction "as provided by law."

¶ 9 When we venture outside the scope of article VI, we find the same pattern.For example, under article XV, section 6, the legislature is granted the authority to enlarge the powers of the Arizona Corporation Commission.Under article V, section 9, the duties of the Secretary of State, Treasurer, Attorney General, and Superintendent of Public Instruction "shall be as prescribed by law."Under article XIX, the legislature"fix[es]" the duties of the State Mine Inspector.

¶ 10 VotePac argues that if we were to just look at the language of the constitutionand comparearticle VI, sections 36and37 with all other provisions of the constitution, one would conclude that the different treatment must have some significance.One conclusion that might be drawn from textual analysis alone is that where the constitution intends that the legislature have the power to expand the duties of a constitutional entity, the constitution will so state.¹The corollary would be that if the constitution does not so state, then the functions and the duties of the constitutional entity are only those specifically described by the constitutional grant of authority.

¶ 11 The Citizens Clean Elections Commission and the Arizonans for Clean Elections argue that we have held otherwise.They turn to Cox v. Superior Court,73 Ariz. 93, 237 P.2d 820(1951), andEarhart v. Frohmiller,65 Ariz. 221, 178 P.2d 436(1947) for the proposition that unless the constitution expressly denies the legislature a particular power, it has it.From that, they argue that since article VI, sections 36and37 do not expressly prohibit the legislature from adding to the functions of the Commission on Appellate Court Appointments, the legislature may do so.

¶ 12We believe Citizens Clean Elections Commission's and Arizonans for Clean Elections' reading of Cox and Frohmiller omits any consideration of the doctrine of implied limitations, expressly acknowledged in Cox and Frohmiller.In Cox, the issue was whether the legislature could vest the superior court with appellate jurisdiction over cases that originate before an administrative agency.Article VI, section 6, as it then existed, [now article VI, section 14] provided that the superior court had appellate jurisdiction over cases arising in justice and other inferior courts"as may be prescribed by law."...