Long v. Napolitano

• Decision Date: 27 August 2002
• Docket Number: No. 1 CA-CV 02-0036.,1 CA-CV 02-0036.
• Citation: 53 P.3d 172,203 Ariz. 247
• Parties: John F. LONG, Plaintiff Appellant, Cross Appellee, v. Janet A. NAPOLITANO, Attorney General of the State of Arizona; Carol Springer, Treasurer of the State of Arizona; Tourism and Sports Authority, a political subdivision of the State of Arizona; F. Rockne Arnett; John Benton; James Grogan; C.A. Howlett; Denise Merideth; Kate Monahan; Herman Orcutt; William Peltier; and Rod Williams, Members of the Board of Directors of the Tourism and Sports Authority, Defendants-Appellees, Richard M. Romley, Maricopa County Attorney, Defendant-Appellee, Cross Appellant, and City of Tempe, a municipal corporation; City Of Surprise, a municipal corporation; B & B Holdings, Inc.; The Fiesta Bowl; Texas Rangers Baseball Partners; and The Valley Hotel and Resort Association, Intervenors Defendants-Appellees.
• Court: Arizona Court of Appeals

53 P.3d 172

203 Ariz. 247

John F. LONG, Plaintiff Appellant, Cross Appellee, v. Janet A. NAPOLITANO, Attorney General of the State of Arizona; Carol Springer, Treasurer of the State of Arizona; Tourism and Sports Authority, a political subdivision of the State of Arizona; F. Rockne Arnett; John Benton; James Grogan; C.A. Howlett; Denise Merideth; Kate Monahan; Herman Orcutt; William Peltier; and Rod Williams, Members of the Board of Directors of the Tourism and Sports Authority, Defendants-Appellees, Richard M. Romley, Maricopa County Attorney, Defendant-Appellee, Cross Appellant, and City of Tempe, a municipal corporation; City Of Surprise, a municipal corporation; B & B Holdings, Inc.; The Fiesta Bowl; Texas Rangers Baseball Partners; and The Valley Hotel and Resort Association, Intervenors Defendants-Appellees.

No. -0036.

Court of Appeals of Arizona, Division 1, Department C.

August 27, 2002.

Cohen, Kennedy, Dowd & Quigley, PC By Ronald Jay Cohen, Laura H. Kennedy, Brown & Bain, P.A. By Paul F. Eckstein, Joel W. Nomkin, Jessica L. Everett-Garcia, Rebecca K. Barnes, Phoenix, Attorneys for Plaintiff-Appellant, Cross Appellee.

Janet Napolitano, Attorney General By Patrick Irvine, Solicitor General, Mary O'Grady, Assistant Attorney General, Phoenix, Attorneys for Defendant-Appellee Napolitano.

Richard M. Romley, Maricopa County Attorney By Christopher C. Keller, Chief Counsel, Jean W. Rice, Deputy County Attorney, Bruce P. White, Deputy County Attorney, Phoenix, Attorneys for Defendant-Appellee, Cross Appellant.

Osborn Maledon, P.A. By William J. Maledon, David G. Campbell, John L. Blanchard, Taylor C. Young, Fennemore Craig, P.C. By Kendis K. Muscheid, Lee D. Stein, Phoenix, Attorneys for Defendants-Appellees Tourism and Sports Authority; C. Rockne Arnett; John Benton; James Grogan; C.A. Howlett; Denise Merideth; Kate Monahan; Herman Orcutt; William Peltier; and Rod Williams, Members of the Board of Directors of the Tourism and Sports Authority. Grant Woods, P.C. By Grant Woods, Phoenix, Attorneys for Defendant Intervenor-Appellee City of Tempe.

City of Surprise Attorney's Office By Mr. Bruce C. Smith, Surprise, Attorneys for Defendant Intervenor-Appellee City of Surprise.

Gallagher & Kennedy, P.A. By Michael K. Kennedy, Phoenix, Attorneys for Defendant Intervenor-Appellee B & B Holdings, Inc.

Snell & Wilmer, L.L.P. By Patrick G. Byrne and Todd Feltus, Phoenix, Attorneys for Defendant Intervenor-Appellee Fiesta Bowl.

Lewis & Roca, LLP By W. Scott Bales, Phoenix, Attorneys for Defendants Intervenors-Appellees Texas Rangers Baseball Partners and The Valley Hotel and Resort Association.

OPINION

TIMMER, Presiding Judge.

¶ 1 We are asked to decide whether legislation creating and implementing the Tourism and Sports Authority ("TSA"), Ariz.Rev. Stat. ("A.R.S.") §§ 5-802 to -877 (Supp. 2001), is an unconstitutional special law favoring only Maricopa County. We must further determine whether the TSA funding mechanism violates the constitutional debt limitation. For the reasons that follow, we hold that the TSA legislation is not a prohibited special law and does not violate the debt limitation established by our constitution. However, we sever the language from A.R.S. § 5-866(1) and (2) that authorizes the TSA to pledge "all" revenues and monies received by it to pay and secure bond obligations.

BACKGROUND

¶ 2 In May 1999, the voters in the City of Mesa rejected a development proposal that included construction of a football stadium. In response, Governor Jane Dee Hull formed a 35 member "Stadium Plan `B' Advisory Task Force" to explore funding options for a new football stadium. The Governor believed that "[s]uch a facility may be necessary to retain Arizona's NFL franchise, to be placed on a regular rotation for future Super Bowls, and to keep the Fiesta Bowl as one of the premier collegiate bowl games in the country, all of which have a major economic impact on our state." The Governor directed the task force to research the need for a new stadium, assess its economic impact and devise a possible funding package. She asked that any public financing minimize the impact on the average citizen, particularly those who choose not to support professional sports.

¶ 3 In January 2000, the task force issued its final report entitled "Arizona Tourism Retention and Promotion," which set forth the following pertinent findings:

1. Arizona is threatened with the loss of significant revenues and status if the Arizona Cardinals are forced to relocate. Since moving to Arizona in 1988, the Cardinals franchise has had an estimated $150 million per year economic impact on the state. In addition, nationally televised Cardinals home games have promoted tourism in Arizona by displaying scenic views of Arizona that would cost the state millions of dollars if it had to purchase the same amount of media exposure. Several states have built or are building new stadiums to retain their teams or to entice NFL teams to relocate to their communities. Cities that have lost their NFL franchise have spent an average of $1 billion to obtain another one.

2. The Fiesta Bowl's status as a top-tier bowl game is threatened by new stadiums across the country. As a member of the Bowl Championship Series ("BCS"), the Fiesta Bowl creates an enormous economic impact for the state. For example, the 1999 Fiesta Bowl had a $133 million impact on the state's economy. Fiesta Bowl officials expressed a fear of losing BCS status if the annual game cannot move to a new stadium.

3. Absent a new stadium, Arizona has "virtually no chance" of hosting the Super Bowl on a recurring basis. The 1996 Super Bowl held in the City of Tempe created an economic impact of $305 million in Arizona.

¶ 4 On the basis of these findings, the task force concluded that a new stadium was a good investment for the state. In the course of developing a proposed funding package for the stadium, the task force learned of two additional threats to Arizona's tourism tax base:

1. Other states, Las Vegas, and other local destination marketing agencies are systematically outpacing Arizona in tourism promotion. An aggressive increase in tourism budgets nationwide reduced Arizona's tourism market share in 1997 and 1998 by approximately $800 million in direct tourist spending. Las Vegas has adopted a $100 million per year multimedia campaign to attract visitors, proclaiming itself the leading vacation destination in the Southwest and effectively "stealing" the Grand Canyon as a result of its efforts. Armed with only a $6 million annual tourism promotion budget, Arizona is in danger of continuing to lose its market share.

2. The future of the Cactus League is threatened by competition from well-funded cities. The visitor spending associated with Cactus League game attendance has produced approximately $200 million annually. In addition to competing for teams playing in Florida's Grapefruit League, Arizona is also competing with Las Vegas, which is attempting to lure teams to that city. Although many Cactus League facilities need renovations, funds will not be available for such projects until 2017, which may lessen Arizona's chances for retaining and attracting teams.

¶ 5 As a result of these additional threats to the state's tourism tax base, the task force broadened its mission to include the protection and promotion of Arizona's tourism industry and Cactus League. The task force then recommended a capital funding plan, which included formation of a "Tourism and Sports Retention Authority" and assessment of a state-wide hotel tax and Maricopa County car rental surcharge.

¶ 6 Following the task force's recommendations, Senate Bill 1220 was placed before the legislature in March 2000, and the TSA legislation passed the next month. The boundaries of the TSA are "the boundaries of any county that has a population of more than two million persons." A.R.S. § 5-802(A). Because Maricopa County is the only county in Arizona with a population exceeding two million people as of April 2000 and through the date of this decision, the TSA operates only in that county.

¶ 7 The TSA is required to acquire land and finance, construct, operate, and promote a multipurpose sport and event facility, 2002 Ariz. Sess. Laws, ch. 288, § 1(4); A.R.S. § 5-807(A), which must be "suitable to be used to accommodate professional football franchises, major college football bowl sponsors" and other civic uses. ch. 288, § 1(4). The TSA is authorized to fund the multipurpose facility by issuing bonds. A.R.S. § 5-862(A). The multipurpose facility is additionally funded by monies paid by the Arizona Cardinals and other entities for use of the multipurpose facility, A.R.S. §§ 5-833(A)(1), -834(A), and, upon approval by the voters residing within the TSA, monies collected as local surcharges on car rentals and a local one percent tax on hotel rooms. A.R.S. §§ 5-839, -840. Finally, the TSA legislation diverts specified transaction privilege taxes and income taxes to fund the multipurpose facility. A.R.S. §§ 42-1116(C), -5032.01 (Supp.2001); A.R.S. § 43-209 (Supp.2001).

¶ 8 The TSA may also fund promotion of tourism within its borders, A.R.S. § 41-2306(A)(2) (Supp.2001), and build, finance or improve both major league baseball spring training facilities, A.R.S. § 5-808(A)(1), and community youth and amateur sports facilities located within the TSA. A.R.S. § 5-809(A)(1). These undertakings are financed by monies remaining from the car rental surcharges and hotel taxes after payment of debt service on TSA-issued bonds for the construction of the multipurpose facility. A.R.S. §§ 5-834, -835. The TSA may also fund the spring training "Cactus League" projects by issuing bonds. A.R.S. § 5-837(C).

¶ 9 The TSA legislation required the TSA and Maricopa County to call an election not later than August 1, 2000 to seek the voters' approval to levy the car rental surcharge and hotel tax to be used to partially fund the TSA....