Korte v. Bayless

• Decision Date: 10 January 2001
• Docket Number: No. CV-00-0308-AP/EL.,CV-00-0308-AP/EL.
• Citation: Korte v. Bayless, 16 P.3d 200, 199 Ar iz. 173 (Ariz. 2001)
• Parties: Virginia KORTE; Carla, Plaintiffs/Appellees. v. Betsey BAYLESS, Secretary of State for the State of Arizona, Defendant, Preserve Arizona—Yes on Proposition 100 Committee, Ruth Hamilton, Chairwoman, Defendant/Appellant.
• Court: Arizona Supreme Court

16 P.3d 200

199 Ariz. 173

Virginia KORTE; Carla, Plaintiffs/Appellees. v. Betsey BAYLESS, Secretary of State for the State of Arizona, Defendant, Preserve Arizona—Yes on Proposition 100 Committee, Ruth Hamilton, Chairwoman, Defendant/Appellant.

No. CV-00-0308-AP/EL.

Supreme Court of Arizona, En Banc.

January 10, 2001.

Coppersmith, Gordon, Schermer, Owens & Nelson, P.L.C. by Andrew S. Gordon, Phoenix, Attorneys for Korte and Carla.

Janet Napolitano, The Attorney General by Thomas I. McClory, Assistant Attorney General and Mark Wilson, Assistant Attorney General, Phoenix, Attorneys for Betsy Bayless, Secretary of State.

Snell & Wilmer, L.L.P. by Timothy J. Casey, Gammage & Burnham, P.L.C by Grady Gammage and Cameron C. Artigue, Phoenix, Attorneys for Preserve Arizona—Yes on Proposition 100 Committee, Ruth Hamilton, Chairwoman.

Janet Napolitano, The Attorney General by Scott Bales, Solicitor General, Phoenix, Amicus Curiae.

Gallagher & Kennedy, P.A. by John E. Lundin, by Jeffrey D. Gross and John D. DiTullio, Phoenix, Attorneys for Amicus Curiae Jeff Groscost, Brenda Burns, Jack Brown, and Robert McLendon.

Jack Psfister, Tempe, Pro per Amicus Curiae.

OPINION.

McGREGOR, Justice.

¶ 1 The question before us is whether Proposition 100, a ballot measure referred by the legislature to the people, encompasses more than a single subject and therefore violates Article XXI of the Arizona Constitution. Proposition 100 would alter existing constitutional mandates that govern the use and management of state trust lands. Although both proponents and opponents of placing Proposition 100 on the ballot make cogent and persuasive arguments, we narrowly conclude that Proposition 100 meets the test this court established in Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). On August 31, 2000, we entered an order reversing the judgment of the trial court, thereby permitting Proposition 100 to appear on the ballot, with this opinion to follow.¹

I.

¶ 2 As an initial matter, we address the procedural issues raised by the appellants, who argue that this action should be dismissed on grounds of laches and lack of subject-matter jurisdiction. We do not find these arguments persuasive.

¶ 3 We review the trial court's finding on laches for abuse of discretion. Harris v. Purcell, 193 Ariz. 409, 413, 973 P.2d 1166, 1170 (1998). In cases involving laches with regard to ballot measures, we have emphasized that, to avoid the problem of mootness, actions must be brought in sufficient time to allow the court to make a decision before absentee ballots must be printed. See Mathieu v. Mahoney, 174 Ariz. 456, 459, 851 P.2d 81, 84 (1993); Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 (1991).² In the instant case, the challengers filed their complaint almost eight weeks prior to the deadline for mailing the publicity pamphlet for early voting. That time period allowed sufficient time to render a decision before absentee balloting began, and we therefore do not find the action barred by laches.

¶ 4 The appellant committee also argues that this case does not present a justiciable controversy due to the absence of the real party in interest, the legislature. The practice in this state, however, has been to bring initiative challenges against the Secretary of State, the party to be enjoined, rather than the initiative's proponents. Bolin v. Superior Court, 104 Ariz. 76, 78, 449 P.2d 4, 6 (1969). An initiative's proponents must be joined only in cases in which the nature of the challenge presents a conflict for the Secretary of State. See id. The committee does not suggest that such a conflict exists here. Moreover, the challengers named as defendants not only the Secretary of State, but also the committee organized to support the initiative, a party sufficiently adverse to ensure full briefing of the issues and maintenance of the real controversy required for justiciability.

II.

¶ 5 To determine whether Proposition 100, which proposes extensive amendments to Article X of the Arizona Constitution, complies with Article XXI, we must first understand the purpose of Article X as presently constituted. Article X governs the state's management of the public lands given to Arizona by the federal government at statehood for the support of educational and governmental institutions. Arizona received 10,790,000 acres: 9,180,000 acres for educational purposes and the remainder for the support of various public institutions, such as penitentiaries and miners' hospitals. Lassen v. Arizona, 385 U.S. 458, 460 n. 2, 87 S.Ct. 584, 585 n. 2, 17 L.Ed.2d 515 (1967); see generally Douglas Dunipace, Comment, Arizona's Enabling Act and the Transfer of State Lands for Public Purposes, 8 ARIZ.L.REV. 133 (1966). Article X imposes extensive restrictions on the state's management of these lands. The state must act as a trustee of the lands, disposing of them only in the manner specified by the constitution and only for those purposes for which they were given. ARIZ. CONST. art. X, §§ 1-2. The state must conduct sales and leases of trust land in accordance with advertising and competitive bidding procedures, and must sell or lease for no less than appraised true value. Id. §§ 3-4, 8. The proceeds from the sale or lease of trust lands must be deposited into funds separated according to the purpose for which the trust land was granted, and money in each fund must be used for the specified purpose only. Id. § 7.

¶ 6 These constitutional provisions, which seek to ensure that Arizona uses its trust land only for the purposes for which it was granted, repeat almost verbatim the federal legislation authorizing the Territory of Arizona to organize a state government. See Arizona New Mexico Enabling Act, Pub.L. No. 219 (ch. 310), § 28, 36 Stat. 557 (1910) (reprinted in 1 A.R.S.). The full provisions of this Enabling Act also form part of the organic law of Arizona. See ARIZ. CONST. art. XX, § 12. Because the Enabling Act's restrictions are a matter of federal law, they cannot be altered without both amendment of the Arizona Constitution and congressional approval.³ See Kadish v. Arizona State Land Dep't, 155 Ariz. 484, 486, 747 P.2d 1183, 1185 (1987).

¶ 7 Although the federal government routinely granted newly admitted states land for specific public purposes, the Enabling Act's stringent requirements for the management of trust land in Arizona and New Mexico are unique. Of the twenty-five states admitted to the union pursuant to enabling legislation, Congress subjected only those two states to such restrictions. See Murphy v. State, 65 Ariz. 338, 350-51, 181 P.2d 336, 344 (1947). When the U.S. House of Representatives approved the Arizona-New Mexico Enabling Act, the Act did not restrict the management of state trust land. The Senate added the restrictions, acting out of concern over other states' misuse and waste of public lands that had been given to them for similar purposes. S.REP.No. 454, at 18-20 (1910) (Report of the Committee on Territories, 61st Congress, 2d Session); Murphy, 65 Ariz. at 351-52, 181 P.2d at 344-45; see also Lassen, 385 U.S. at 468,87 S.Ct. at 589. Indeed, mismanagement of trust lands raised so great a concern at the time of statehood that delegates to the Arizona Constitutional Convention considered adopting even more stringent safeguards, including a constitutional provision that would forbid entirely the sale of state trust lands. See THE RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910, at 704-10 (John S. Goff ed., n.d.). The delegates ultimately struck the balance between flexibility of management and procedural safeguards reflected in Article X.

¶ 8 Proposition 100 would re-formulate this balance. The proposition would amend Article X to allow the State Land Department to designate for conservation land with unique cultural or natural value; to provide state trust land for school siting; to permit exchanges of trust land for private land desirable for conservation or school siting; to authorize longer-term agricultural and grazing leases; to use up to five percent of the income generated by the State Land Department to better manage trust land; and to reduce or eliminate the advertising required before trust land can be sold or leased for longer than ten years. S.Con.Res. 1001, 44th Leg., 4th Spec. Sess. (2000). The purpose and single subject of these changes, according to documents filed in these proceedings by the proponents of Proposition 100, is to allow the State Land Department to manage state trust land in ways that deal with modern issues of growth and development. The appellees contend that the proposition evidences several purposes and therefore does not comply with our constitution's requirement that ballot measures encompass only a single subject.

III.

¶ 9 Article XXI, Section 1 of the Arizona Constitution provides that "[i]f 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." We have examined the test for determining whether an initiative conforms to this single-subject requirement on only a few occasions. In Kerby v. Luhrs, we reviewed the approaches taken by other states in interpreting similar constitutional requirements, and drew on those approaches to formulate a test for compliance:

If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if 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 reasonably be

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