Clean Elections Institute, Inc. v. Brewer

• Court: Arizona Supreme Court
• Writing for the Court: McGREGOR, Vice Chief Justice.
• Citation: Clean Elections Institute, Inc. v. Brewer, 209 Ariz. 241, 99 P.3d 570, 442 Ariz. Adv. Rep. 28 (Ariz. 2004)
• Decision Date: 07 October 2004
• Docket Number: No. CV-04-0263-AP/EL.,CV-04-0263-AP/EL.
• Parties: CLEAN ELECTIONS INSTITUTE, INC., an Arizona non-profit corporation; Michael J. Valder; and Lydia Guzman, Plaintiffs/Appellees/Cross-Appellants, v. Janice BREWER, in her official capacity as Secretary of State for the State of Arizona, Defendant/Appellant/Cross-Appellee, No Taxpayer Money for Politicians, an unincorporated association; Eric Crown, in his capacity as chairman of the association; Lettie Phillips, in her capacity as treasurer of the association, Real Parties in Interest/Appellants/Cross-Appellees.

99 P.3d 570

209 Ariz. 241

442 Ariz. Adv. Rep. 28

CLEAN ELECTIONS INSTITUTE, INC., an Arizona non-profit corporation; Michael J. Valder; and Lydia Guzman, Plaintiffs/Appellees/Cross-Appellants, v. Janice BREWER, in her official capacity as Secretary of State for the State of Arizona, Defendant/Appellant/Cross-Appellee, No Taxpayer Money for Politicians, an unincorporated association; Eric Crown, in his capacity as chairman of the association; Lettie Phillips, in her capacity as treasurer of the association, Real Parties in Interest/Appellants/Cross-Appellees.

No. CV-04-0263-AP/EL.

Supreme Court of Arizona, En Banc.

October 7, 2004.

Perkins Coie Brown & Bain P.A. by Charles A. Blanchard, Michael S. Mandell, Michael T. Liburdi, Phoenix, Attorneys for Clean Elections Institute Inc., Michael J. Valder and Lydia Guzman.

James P. Walsh, Acting Attorney General by Jessica G. Funkhouser, Special Counsel, Diana L. Varela, Assistant Attorney General, Phoenix, Attorneys for Janice Brewer.

Gammage & Burnham by Lisa T. Hauser, Cameron C. Artigue, Phoenix, Attorneys for No Taxpayer Money For Politicians, Eric Crown and Lettie Phillips.

Coppersmith Gordon Schermer Owens & Nelson P.L.C. by Andrew S. Gordon, Phoenix, Attorneys for Amicus Curiae Arizona Corporation Commissioners/Candidates for the Arizona Corporation Commission.

Irvine Law Firm, P.A. by Thomas K. Irvine, Phoenix, Attorneys for Amicus Curiae Hon. Raul H. Castro.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 In November 1998, the voters of Arizona adopted the Citizens Clean Elections Act (the Act), later codified as Arizona Revised Statutes (A.R.S.) §§ 16-940 to 16-961 (Supp.2003). In June 2004, a group known as No Taxpayer Money for Politicians filed initiative petition signature sheets seeking to qualify Proposition 106 for the 2004 general election ballot. The plaintiffs brought this action to enjoin the Secretary of State from certifying Proposition 106. Following a hearing, the superior court concluded that Proposition 106 violated the "separate amendment rule"¹ of Article 21, Section 1, of the Arizona Constitution because it incorporates two separate constitutional amendments. For that reason, the court ordered that the matter not be certified and placed on the ballot. On August 12, 2004, we entered an order affirming the judgment of the superior court, with this opinion to follow.

I.

¶ 2 Whether an initiative violates the separate amendment rule presents a question of law, which we review de novo. See Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 397 ¶ 5, 64 P.3d 836, 839 (2003).

A.

¶ 3 The Arizona Constitution includes two provisions often loosely referred to as adopting a "single subject rule." The first, Article 4, Part 2, Section 13, sets out the rule that applies uniquely to statutes enacted by the legislature.² That provision states:

Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title.

Ariz. Const. art. 4, pt. 2, § 13.

¶ 4 The purpose of this single subject provision is to prevent surprise and the evils of surreptitious or hodgepodge legislation, including the practice known as logrolling. Taylor v. Frohmiller, 52 Ariz. 211, 215-16, 79 P.2d 961, 963 (1938). Although this provision does not require that the "title of the act should be a complete index to the legislation contained therein," id. at 216, 79 P.2d 961, the title of an act "should not be so meager as to mislead or tend to avert inquiry as to the context thereof...." Dennis v. Jordan, 71 Ariz. 430, 439, 229 P.2d 692, 697-98 (1951). To allow the legislature freedom to act, while enforcing the command of this provision, our interpretation of the single subject rule must be not "so narrowly technical on the one side so as to substitute the letter for the spirit, or so foolishly liberal on the other as to render the constitutional provision nugatory...." Taylor, 52 Ariz. at 217, 79 P.2d at 964. Under this provision, we construe legislation liberally in favor of its constitutionality. See White v. Kaibab Rd. Improvement Dist., 113 Ariz. 209, 212, 550 P.2d 80, 83 (1976).

¶ 5 The constitutional language also directs that "if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title." Ariz. Const. art. 4, pt. 2, § 13. Thus, if one portion of a statute violates the single subject rule, "only that part which is objectionable will be eliminated and the balance left intact."³ State v. Coursey, 71 Ariz. 227, 236, 225 P.2d 713, 719 (1951); see also Citizens Clean Elections Comm'n v. Myers, 196 Ariz. 516, 522, 1 P.3d 706, 712 (2000) (stating that unconstitutional provision of act was severable from remainder of act).⁴

B.

¶ 6 In contrast, the Arizona Constitution establishes a stricter test for determining whether a proposal involves more than one constitutional amendment. See Ariz. Const. art. 21, § 1 (Article 21). In language distinguishable from that used to describe the single-subject rule, the constitution provides:

If more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.

Ariz. Const. art. 21, § 1.

¶ 7 The clear import of this provision is that voters must be allowed to express their separate opinion as to each proposed constitutional amendment. The separate amendment rule of Article 21 differs from the single-subject rule of Article 4 in two important respects. First, although statutes comply with the single-subject rule if they "embrace but one subject and matters properly connected therewith," Article 21 includes no reference to matters "connected with" a proposed constitutional amendment. Simply showing that several sections of a proposed amendment relate to the same general subject as that expressed in the title of the proposed amendment does not satisfy the requirements of Article 21. Instead, Article 21 requires that each proposed amendment "shall be" presented in a manner that allows the voters to consider and vote for or against each amendment separately.

¶ 8 Second, unlike the single-subject provision of Article 4, Article 21 does not permit the court to sever an offending provision from a multiple-proposal constitutional amendment. See Taxpayers Prot. Alliance v. Arizonans Against Unfair Tax Schemes, 199 Ariz. 180, 182 ¶ 7, 16 P.3d 207, 209 (2001) (holding that court has no authority to sever sections of a proposed amendment to the constitution). Instead, if a proposal includes more than one amendment, the entire proposal falls within the constitutional prohibition.

¶ 9 The distinctions between Article 4 and Article 21 reflect the unique position and importance of the Arizona Constitution in state governance. The constitution provides a statement of basic principles that inform and define the foundation of the state's laws. See Miller v. Heller, 68 Ariz. 352, 357, 206 P.2d 569, 573 (1949) ("The constitution of this state, second only to the constitution of the United States, is the supreme law of Arizona."); see also Cecil v. Gila County, 71 Ariz. 320, 322, 227 P.2d 217, 218 (1951) (stating that the Arizona Constitution is basic law); see also John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 112 (Spring 1988) ("[O]ne thing about the intent of the framers of the Arizona Constitution is absolutely clear—they fully expected the document they crafted to be the primary charter of state government and the primary check on it."). If the principles set out in this fundamental document are to be changed by a vote of the people, the voters must receive the opportunity to express their opinion clearly as to each proposed change.

¶ 10 When a proposed amendment consists of multiple provisions, the proposal constitutes one amendment under the terms of the constitution only if its provisions "are sufficiently related to a common purpose or principle that the proposal can be said to constitute a consistent and workable whole on the general topic embraced, that, logically speaking, should stand or fall as a whole." Kerby v. Luhrs, 44 Ariz. 208, 221, 36 P.2d 549, 554 (1934) (emphasis added).

¶ 11 Under the "common purpose or principle test,"

[i]f any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition.

Id.

¶ 12 To determine whether the provisions of a proposed amendment meet the common purpose or principle test, we consider objective factors such as

whether various provisions are facially related; whether all the matters addressed by an initiative concern a single section of the constitution; whether the voters or the legislature historically has treated the matters addressed as one subject; and whether the various provisions are qualitatively similar in their effect on either procedural or substantive law.

Korte v. Bayless, 199 Ariz. 173, 177 ¶ 11, 16 P.3d 200, 204 (2001) (citations omitted).

II.

A.

¶ 13 To measure Proposition 106 against the dictate of Article 21, we first describe briefly the Clean Elections Act, which Proposition 106 is intended to affect. The Act established the Citizens Clean Election Commission (the Commission). A.R.S. § 16-955. The Act assigns the Commission many duties related to the conduct of public elections, but three are paramount. First, the Commission administers the public funding...