Tilson v. Mofford

• Decision Date: 02 June 1987
• Docket Number: No. CV-86-0456-AP,CV-86-0456-AP
• Citation: Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367 (Ariz. 1987)
• Parties: Gwendolyn K. TILSON and Brig. Gen. Robert McMath, Plaintiffs-Appellants, v. Rose MOFFORD, Secretary of the State of Arizona; and Citizens for Fair and Sensible Liability Laws, Defendants-Appellees.
• Court: Arizona Supreme Court

Page 1367

737 P.2d 1367

153 Ariz. 468

Gwendolyn K. TILSON and Brig. Gen. Robert McMath, Plaintiffs-Appellants, v. Rose MOFFORD, Secretary of the State of Arizona; and Citizens for Fair and Sensible Liability Laws, Defendants-Appellees.

No. CV-86-0456-AP.

Supreme Court of Arizona, In Banc.

June 2, 1987.

Langerman, Begam, Lewis and Marks by: Amy G. Langerman, Robert G. Begam, and Hofmann, Salcito, Stevens & Myers by: Leroy W. Hofmann, Phoenix, for plaintiffs-appellants.

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

Lewis and Roca by: John P. Frank, Gabriel Beckmann, Steven Labensky, Janet A. Napolitano, Phoenix, for defendants-appellees.

HOLOHAN, Justice.

The superior court granted summary judgment for defendants in plaintiffs' action to enjoin the Secretary of State from printing an initiative measure on the November 1986 ballot. We affirmed this judgment on September 10, 1986, and indicated that a formal written opinion would follow.

Two issues are presented for review:

1) Whether the proposed initiative violates the single-subject rule of article 21, section 1 of the Arizona Constitution;

2) Whether the proposed initiative violates A.R.S. § 19-123(A)(1).

In July 1986, Citizens for Fair and Sensible Liability Laws (Citizens), a non-profit corporation, filed petitions with the Secretary of State to place the following initiative measure on the ballot for the November 1986 general election: ¹

AN INITIATIVE MEASURE

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE STATE OF ARIZONA RELATING TO REGULATION OF PUBLIC HEALTH, SAFETY AND WELFARE; DEFINING AND GUARANTEEING RIGHT TO SEEK MONETARY DAMAGES IN CASES OF INJURY OR DEATH; AUTHORIZING LEGISLATION WITH RESPECT TO AMOUNTS PAYABLE FOR DAMAGES OTHER THAN MONETARY DAMAGES; PAYMENT PLANS TO PROVIDE FOR ALL FUTURE DAMAGES AND CONTINUING CARE; LIMITS ON ATTORNEYS' FEES AND COSTS PAYABLE FROM DAMAGE AWARDS; PRESCRIBING APPLICATION OF AMENDMENT TO OTHER PROVISIONS OF THE CONSTITUTION, AND AMENDING ARTICLE XXVII, CONSTITUTION OF ARIZONA, BY ADDING SECTION 2.

Be it enacted by the People of the State of Arizona:

The following amendment to Article XXVII, Constitution of Arizona, by adding Section 2, is proposed to become valid when approved by a majority of the qualified electors voting thereon and upon proclamation of the Governor:

Section 1. Article XXVII, Constitution of Arizona, is amended by adding Section 2, to read:

§ 2. Damages

SECTION 2. THIS CONSTITUTION GUARANTEES THE RIGHT TO SUE TO RECOVER PAST AND FUTURE MONETARY DAMAGES IN CASES OF INJURY OR DEATH. 'MONETARY DAMAGES' MEANS REASONABLE EXPENSES OF NECESSARY MEDICAL CARE AND RELATED SERVICES, LOST EARNINGS AND A LOSS OR DECREASE IN FUTURE EARNINGS.

THE LEGISLATURE IS AUTHORIZED TO ESTABLISH THE FOLLOWING:

A. AMOUNTS TO BE PAID FOR ALL DAMAGES OTHER THAN MONETARY DAMAGES;

B. PAYMENT PLANS TO PROVIDE FOR FUTURE MONETARY AND OTHER DAMAGES AND FOR CONTINUING CARE OF THE INJURED; AND

C. LIMITS ON AMOUNTS OF ATTORNEYS' FEES AND COSTS WHICH MAY BE PAID OUT OF DAMAGE AWARDS.

IN CASES OF INJURY OR DEATH, THIS SECTION GOVERNS OVER ALL OTHER CONSTITUTIONAL SECTIONS AND STATUTES EXCEPT PROVISIONS WHICH DEAL WITH WORKMEN'S COMPENSATION LAW.

Soon after the filing of the initiative petition, Gwendolyn Tilson and Robert McMath (Tilson) filed an action in superior court seeking to enjoin the Secretary of State from printing the measure on the ballot. The trial court allowed Citizens to intervene in the case as defendants. Citizens moved for summary judgment and the trial court granted the motion, thereby denying Tilson's request for an injunction. Tilson appealed.

I

Before we reach the issues raised by Tilson, the issue of our jurisdiction to review the legality of the proposed initiative prior to its approval by the voters has been raised. Under our constitution, the people did not grant to the legislature plenary law-making power. They reserved to themselves the powers of initiative and referendum. Ariz. Const. art. 4, Pt. 1 § 1. The legislative power of the people is as great as that of the legislature. See Ariz. Const. art. 22, § 14. Just as under the separation of powers doctrine the courts are powerless to predetermine the constitutionality of the substance of legislation, so also they are powerless to predetermine the validity of the substance of an initiated measure. See State v. Osborn, 16 Ariz. 247, 249-51, 143 P. 117, 118-19 (1914); accord Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989 (1957). The courts have the power to determine what the law is and what the constitution contains, but not what it should contain. Osborn, 16 Ariz. at 251, 143 P. at 118.

However, the courts do have the duty of ensuring that the constitutional and statutory provisions protecting the electoral process (i.e., the manner in which an election is held) are not violated. See Kerby v. Griffin, 48 Ariz. 434, 444-46, 62 P.2d 1131, 1135-36 (1936). Indeed, we have held that the procedures leading up to an election cannot be questioned after the people have voted, but instead the procedures must be challenged before the election is held. Id. Before an election, the court's authority to intervene and enjoin the enactment of an initiative is limited to those instances "where an initiative petition is defective in form or does not bear the number of signatures of qualified electors required by Article 4, Part 1, § 1, Constitution of Arizona, or where the prescribed procedure has not been followed...." Iman v. Bolin, 98 Ariz. 358, 365, 404 P.2d 705, 709 (1965); see also Williams v. Parrack 3 Ariz. at 231, 319 P.2d at 991. Thus, procedural violations in the elective process itself must be reviewed by the court prior to the actual election, while the legality of the substance of an initiative cannot be reviewed until the initiative is adopted by the electorate and is later at issue in a specific case.

Neither issue before the court requires inquiry into the legality of the substance of the proposed constitutional amendment. Both issues deal with whether the form of the initiative conforms with the constitutional and statutory provisions regulating the initiative process. See Ariz. Const. art. 21, § 1; A.R.S. § 19-123(A)(1). Therefore, we have jurisdiction pursuant to A.R.S. § 19-122(C) to hear the limited issues raised by Tilson as to the form of the proposed initiative, but we express no opinion on the legality of the substance of the amendment.

II

Article 21 of the Arizona Constitution establishes the procedure for amending the state constitution. The last sentence of the section provides:

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

Ariz. Const. art. 21, § 1. Tilson contends that the proposed initiative violates this single-subject rule because it contains four separate and distinct propositions, none of which is required for proper operation of the others.

In the leading case interpreting article 21, section 1, this court recognized that this constitutional provision "was intended to prevent the pernicious practice of 'log-rolling' in the submission of a constitutional amendment." Kerby v. Luhrs, 44 Ariz. 208, 214, 36 P.2d 549, 551 (1934). Log-rolling is the attempt to combine several dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.

Although the constitutional mandate in article 21, section 1 is clear, the difficult question, as recognized by this court in Kerby, "is to determine what test shall be used to ascertain whether there are in reality several amendments submitted under the guise of one." Id. at 216, 36 P.2d at 552. Kerby went on to clarify the test that had been initially laid out in State v. Timme, 54 Wis. 318, 11 N.W. 785 (1882), and later applied by other jurisdictions:

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 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.

Kerby, 44 Ariz. at 221, 36 P.2d at 554.

Applying this test, the court in Kerby rejected the initiative proposal before it on the basis that no two of the sections were "necessarily required for a proper operation of the third" and on their face they had "no direct relation to each other." Id. at 222, 36 P.2d at 554 (emphasis in original). Furthermore, the proposed amendment submitted "three separate propositions upon which each voter might, and many doubtless would, have widely different opinions." Id. As the amendment compelled voters to vote for or against all three separate propositions as a unit, the court found that the amendment was "log-rolling of the worst type" and that it violated "both the spirit and the letter of the Constitution." Id. Subsequent cases in Arizona have similarly applied the basic test articulated in Kerby. See State ex rel. Nelson v. Jordan, 104 Ariz. 90, 449 P.2d 18 (1968); State v. Lockhart, 76 Ariz. 390, 265 P.2d 447 (1953); Hood v. State, 24 Ariz.App. 457, 539 P.2d 931 (1975). ²

The trial court in the instant case found that the initiative consisted of four propositions, all...