Slayton v. Shumway

• Decision Date: 06 November 1990
• Docket Number: No. CV-90-0356-AP,CV-90-0356-AP
• Citation: 166 Ariz. 87,800 P.2d 590
• Parties: Dan Richmond SLAYTON, Plaintiff/Appellant, v. Jim SHUMWAY, Secretary of State of the State of Arizona, Defendant/Appellee, Donna Pickering and Victims' Bill of Rights Task Force, Intervenors/Appellees.
• Court: Arizona Supreme Court

Page 590

800 P.2d 590

166 Ariz. 87

Dan Richmond SLAYTON, Plaintiff/Appellant, v. Jim SHUMWAY, Secretary of State of the State of Arizona, Defendant/Appellee Donna Pickering and Victims' Bill of Rights Task Force, Intervenors/Appellees.

No. CV-90-0356-AP.

Supreme Court of Arizona, In Banc.

Nov. 6, 1990.

[166 Ariz. 88] Michael J. Bloom, P.C. by Michael J. Bloom, Tucson, Patterson & Terribile by Michael Terribile and Feder Law Office, P.A. by Bruce S. Feder, Phoenix, for plaintiff/appellant.

Robert K. Corbin, Atty. Gen. by Anthony B. Ching, Sol. Gen., Phoenix, for defendant/appellee.

Meyer, Hendricks, Victor, Osborn & Maledon, P.A. by Donald M. Peters, Phoenix, for intervenors/appellees.

OPINION

FELDMAN, Vice Chief Justice.

This is an appeal from a judgment dismissing a suit brought by Dan Richmond Slayton (Slayton) to enjoin Jim Shumway, the Secretary of State (Shumway), from certifying and printing an initiative measure on the official ballot. The initiative is designated as Proposition 104, a proposed constitutional amendment popularly known as the Victims' Rights Initiative.

We have jurisdiction for this direct appeal under article 6, § 5(1) of the Arizona Constitution and A.R.S. § 19-122(C).

FACTS

On August 29, 1990, Slayton filed suit in the Maricopa County Superior Court seeking declarative and injunctive relief "prohibiting [Shumway] from certifying and printing on the official ballot for the [November] general election the proposed constitutional amendment" known as Proposition 104. Complaint, para. VII. Slayton alleged standing to bring the action as a citizen of the state and registered voter.

A motion to intervene was filed by the Victims' Bill of Rights Task Force and its chairperson, Donna Pickering (collectively the Task Force). The Task Force alleged it was a "campaign committee" that had worked to get Proposition 104 on the ballot and was working for its passage. On stipulation, the court allowed intervention.

There is only one issue before us. Slayton argues that Proposition 104 violates the single subject rule of the Arizona Constitution, which provides that:

If more than one proposed [constitutional] amendment shall be submitted in any election, such proposed amendment shall be submitted in such a manner that the electors may vote for or against each proposed amendment separately.

Ariz. Const. art. 21, § 1.

The proposed initiative measure would amend the Arizona Constitution by including a victims' bill of rights. ¹ The operative portion, article 2, § 2.1(A), contains eleven subsections. Subsections 1 through 10 enumerate certain procedural protections to, and rights of, those who are victims of crime. Eight of these are similar to the protections and rights already contained in our Rules of Criminal Procedure. See Rule 39, Ariz.R.Crim.P., 17 A.R.S. Slayton acknowledges that the first ten subsections are so interrelated that together they form a single subject "properly presented to the voters in the single package of Proposition 104." Appellant's Opening Brief at 3.

Slayton argues, however, that subsection 11, which deals with the rulemaking authority, is not sufficiently related to the first ten subsections and therefore violates the single subject rule. Slayton contends that, unlike the first ten subsections, subsection 11 addresses neither the substantive nor procedural rights of victims. Instead, "without warning," it transfers the ultimate authority over " 'all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings' from the Arizona Supreme Court to the Arizona state legislature." Id. at 3 (quoting Proposition 104, subsection 11) (emphasis Slayton's). Pointing out that article 6, § 5(5) of the Arizona Constitution presently gives this court exclusive authority to enact procedural rules, Slayton argues that the rulemaking provision in Proposition 104 is "radically different" from the provisions giving victims procedural rights and protections, thus violating article 21, § 1.

Advancing these same contentions in the trial court, Slayton moved for summary judgment on the complaint. The Task Force filed a motion for judgment on the pleadings. See Rule 12(c), Ariz.R.Civ.P., 16 A.R.S. Expediting its decision, on September 11, 1990 the trial court granted the Task Force's motion, denied Slayton's, and entered a judgment dismissing the complaint. Slayton appealed, we ordered expedited briefing, and, following oral argument, entered an order on September 20, 1990 that "the judgment of the Maricopa County Superior Court is affirmed. An opinion will follow." This is that opinion.

DISCUSSION

The Arizona Constitution presently gives this court exclusive and broad procedural rulemaking authority in all cases, criminal and civil. The words used are as follows:

§ 5. Supreme court; jurisdiction; writs; rules; habeas corpus

The Supreme Court shall have:

* * * * * *

5. Power to make rules relative to all procedural matters in any court.

Ariz. Const. art. 6, § 5(5). The rulemaking power is exclusive. See State ex rel. Collins v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984). It includes formulation of evidentiary rules. Barsema v. Susong, 156 Ariz. 309, 751 P.2d 969 (1988).

Section 2.1(A)(11) of the proposed amendment would change the existing regime by providing that

a victim of crime has a right:

* * * * * *

11. to have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.

The language, of course, is both broad ("all rules governing criminal procedure and the admissibility of evidence") and somewhat unclear in failing to specify or limit the extent of the transfer of rulemaking power. Slayton reads the provision broadly, as giving the legislature the right to amend or repeal all procedural and evidentiary rules in all criminal cases.

Starting from that broad interpretation, Slayton contends that the effect of subsection 11 is to transfer the ultimate rulemaking authority in criminal cases from this court to the legislature. This, Slayton argues, goes far beyond the procedural rights of victims enumerated in subsections 1 through 10 and completely changes the allocation of rulemaking authority, including the great majority of matters that do not deal with victims' rights.

The transfer of ultimate rulemaking authority in all criminal proceedings from the court to the legislature is indeed a radical departure from our practice. See Conway v. Superior Court, 60 Ariz. 69, 131 P.2d 983 (1942) ² (court had inherent rulemaking authority prior to explicit grant in constitution), and the explicit provisions of the so-called Model Courts Amendment of 1960, adopting article 6, § 5(5) of the Arizona Constitution. If Slayton's proposed interpretation is correct, then it must be conceded that subsection 11, which would transfer rulemaking authority for matters that have nothing to do with victims' rights, is much broader than and quite dissimilar to subsections 1 through 10.

Our previous cases have adopted a single subject rule that prevents the "pernicious practice of 'log-rolling' " whereby dissimilar provisions are combined in a single proposition "so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately." Tilson v. Mofford, 153 Ariz. 468, 471, 737 P.2d 1367, 1370 (1987) (quoting Kerby v. Luhrs, 44 Ariz. 208, 214, 36 P.2d 549, 551 (1934)).

The single subject rule has important substantive purposes. It prevents two minority groups from combining different proposals--and thus their votes--to obtain a majority in favor of the joint proposal when neither standing alone could achieve such a majority. See Kerby, 44 Ariz. at 214, 36 P.2d at 552; Ruud, No Law Shall Embrace More Than One Subject, 42 MINN.L.REV. 389, 391 (1958). The rule further prevents those who propose initiatives from confusing or deceiving the voters by inserting unrelated provisions in an initiative proposal and "hiding them" from the voters. See California Trial Lawyers Ass'n, Inc. v. March Fong Eu, 200 Cal.App.3d 351, 358-362, 245 Cal.Rptr. 916, 920-22 (1988) (single subject rule violated by inserting two brief paragraphs addressing campaign contributions and conflicts of interest in the middle of a 120-page initiative proposal pertaining to tort reform).

In Kerby, we invoked the provisions of article 21, § 1 to enjoin the submission of an amendment that proposed formulae for the taxation of copper mines and public utility corporations, and also proposed the establishment of a tax commission as a constitutional body. Noting that the facially unrelated provisions of the amendment were connected only by virtue of embracing the broad, general subject matter of taxation, we stated the following test for the single subject rule:

Taking into consideration all of the cases cited, it is apparent to us that they agree in substance upon the principle to be used as a test [for violation of the single subject rule], but differ widely as to the result reached in its application to particular cases. We think that principle, as explained by the cases from which we have quoted, may be restated as follows:

If the different changes contained in the proposed amendments 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 of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voters supporting it would reasonably be expected to support the principle of the others,...