Fairness and Accountability in Ins. Reform v. Greene
| Decision Date | 15 December 1994 |
| Docket Number | No. CV-94-0317-SA,CV-94-0317-SA |
| Citation | 180 Ariz. 582,886 P.2d 1338 |
| Parties | FAIRNESS AND ACCOUNTABILITY IN INSURANCE REFORM, a nonprofit Arizona corporation; Suzanne Harland, Petitioners, v. John GREENE, President of the Arizona Senate and Co-chair of Legislative Council; Mark Killian, Speaker of the Arizona House of Representatives and Co-chair of Legislative Council; Representative Don Aldridge, member of Legislative Council; Representative Brenda Burns, member of Legislative Council; Representative David Schweikert, member of Legislative Council; Representative Art Hamilton, member of Legislative Council; Representative Bob McLendon, member of Legislative Council; Representative Polly Rosenbaum, member of Legislative Council; Senator Jan Brewer, member of Legislative Council; Senator John Huppenthal, member of Legislative Council; Senator Tom Patterson, member of Legislative Council; Senator Peter Goudinoff, member of Legislative Council; Senator Cindy Resnick, member of Legislative Council; Senator Peter Rios, member of Legislative Council; Richard B. Mahoney, Arizona Secretary of State; all in their official capacity, real parties in interest, Respondents. |
| Court | Arizona Supreme Court |
A group styled Fairness and Accountability in Insurance Reform ("FAIR") brought this original proceeding for special action relief 1 against the Arizona Legislative Council ("Council") and Secretary of State Richard D. Mahoney.
We granted oral argument, ordered filing of responsive memoranda, and permitted an opposing group named People for a Fair Legal System ("People") to appear as amicus in opposition to the special action petition. After hearing oral argument and considering the briefs, we accepted jurisdiction and granted relief by order, stating that an opinion would follow. This is that opinion.
People advocates "tort reform." The Arizona Constitution currently prohibits the enactment of laws limiting damages for death or personal injury or abrogating causes of action for injuries and bars trial judges from directing a verdict based on contributory negligence or assumption of risk. Ariz. Const. art. 2, § 31; art. 18, §§ 5 and 6. People timely submitted to the secretary of state petitions for an initiative measure ("Proposition 103") that would amend these provisions and allow the legislature to enact laws restricting or ending those prohibitions on legislative and judicial action.
Initiative and referendum procedures are a fundamental part of Arizona's scheme of government. Whitman v. Moore, 59 Ariz. 211, 218-20, 125 P.2d 445, 450-51 (1942). Although our constitution vests legislative authority "in a Legislature, ... the people reserve the power to propose laws and amendments to the Constitution and to enact or reject such laws and amendments at the polls, independently of the Legislature; and they also reserve ... the power to approve or reject at the polls any Act, or item, section or part of any Act of the Legislature." Ariz. Const. art. 4, pt. 1, § 1.
The constitution originally provided only a sketchy procedure for exercising the initiative to enact constitutional amendments and statutes. When an initiative proposal was filed, the secretary of state was to "cause to be printed on the official ballot at the next regular general election the title and number of said measure, together with the words 'Yes' and 'No' in such manner that the electors may express at the polls their approval or disapproval of the measure." Id., § 1(10). The constitution then stated that the text of such measures should be submitted to the people by the secretary of state, who "shall be guided by the general law until legislation shall be especially provided therefor." Id., § 1(11).
Our first state legislature created more detailed initiative procedures. 1912 Ariz.Sess.Laws, 1st Spec.Sess., ch. 77. The statutory scheme evolved over the years and when People filed Proposition 103 provided that after the filing of an initiative proposal with sufficient signatures, the secretary of state was to submit it to the voters with a publicity pamphlet containing, among other things, "a legislative council analysis of the ballot proposal as prescribed pursuant to 19-124." A.R.S. § 19-123(A)(4) (Supp.1994). In relevant part, § 19-124(B) states:
Not later than 60 days preceding the regular primary election the legislative council, after providing reasonable opportunity for comments by all legislators, shall prepare and file with the secretary of state an impartial analysis of the provisions of each ballot proposal.... The analysis shall include a description of the measure and shall be 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....
(Emphasis added).
In accordance with §§ 19-123 and 19-124, Council staff prepared analyses of the initiative measures to appear on the November general election ballot. Its analysis of Proposition 103 described the initiative proposal as follows:
The Constitution of Arizona provides that no law eliminating the right to sue for death or injury and no law limiting the amount of money to be recovered can be enacted. The Constitution of Arizona also provides that in a lawsuit the jury determines all questions relating to the legal defense of "contributory negligence" or "assumption of risk."
This proposition would amend the Constitution by:
1. Allowing the Legislature to enact laws that would eliminate a person's right to bring an action to recover money or benefits for injuries,
2. Allowing the Legislature to enact laws that would limit the amount of money or benefits a person could recover for death or personal injuries, and
3. Allowing the Legislature to enact laws that would remove the defense of "contributory negligence" or "assumption of risk" from the consideration of a jury.
On July 7, 1994, the Council met to consider the staff analyses. A member offered a substitute analysis of Proposition 103 for inclusion in the publicity pamphlet. After discussion, the Council voted 7 to 4 to adopt the substitute analysis and submit it to the secretary of state. It read as follows:
The Arizona Constitution, enacted in 1912, prohibits the people and their elected representatives from controlling what kinds of civil lawsuits are brought into the courts and how they are prosecuted. It also prohibits the people and their elected representatives from limiting the amount of compensation awarded during such lawsuits.
This proposition amends the Arizona Constitution to allow people or their elected representatives to control: 1) the filing and prosecution of civil lawsuits for personal injury and wrongful death; 2) the amount of compensation awarded during those lawsuits.
The secretary of state then began the process of incorporating the Council's analyses in the publicity pamphlet that had to be printed and delivered to each county's board of supervisors no later than the tenth day before the September 13, 1994 primary election. A.R.S. § 19-123(B). On July 11, before the pamphlet could be printed, FAIR filed with the secretary of state the first of a series of objections concerning the text and analysis of a related measure, Proposition 301. FAIR demanded that the secretary of state alter the language that would appear in the publicity pamphlet. Concluding that he had no discretion in the matter, the secretary of state refused FAIR's request in a July 26 letter. Presumably, the secretary of state would have had the same response to any objections about Proposition 103. 2
FAIR then turned to this court, challenging the analyses of both propositions. As to Proposition 103, FAIR sought an order prohibiting the secretary of state from using the analysis adopted by the Council and directing him, instead, to use the Council's staff analysis even though the Council never adopted it. Following oral argument, we entered an order directing the Council to reconsider the issue and adopt a new analysis of Proposition 103 complying with A.R.S. § 19-124(B). 3 This opinion explains our reasons.
This court has original jurisdiction over "mandamus, injunction and other extraordinary writs to State officers." Ariz. Const. art. 6, § 5(1). We exercise this jurisdiction through the special action procedure. Ariz.R.P.Spec.Act. 1 (hereinafter "Rule"). Adopting the practice followed with common-law writs, our decision to hear such matters, accept jurisdiction, and grant relief is highly discretionary. Id., State Bar Committee Notes; King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983). In this case, we confront a constitutional issue of first impression and statewide importance. Because of time constraints, there was no adequate remedy in any other procedure or forum. See Rule 1(a); Ingram v. Shumway, 164 Ariz. 514, 516, 794 P.2d 147, 148 (1990). Hence, we accepted jurisdiction of the petition and considered it on the merits.
Arizona has a strong constitutional provision ensuring the proper distribution of powers between the three branches of government. Our constitution declares that the powers of government "shall be divided into three separate departments," that each department "shall be separate and distinct," and that each shall not exercise "the powers properly belonging to either of the others." Ariz. Const. art. 3. This court has...
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