Winkle v. City of Tucson

• Decision Date: 04 December 1997
• Docket Number: No. CV-97-0374-AP,CV-97-0374-AP
• Citation: 949 P.2d 502,190 Ariz. 413
• Parties: 257 Ariz. Adv. Rep. 19 Brian WINKLE, an individual; Frank Beauvais, an individual, Plaintiffs/Appellees, v. CITY OF TUCSON; Kathleen Detrick, City Clerk; George Miller, Mayor of the City of Tucson; Jose J. Ibarra, Member of the Tucson City Council; Janet Marcus, Member of the Tucson City Council; Michael J. Crawford, Member of the Tucson City Council; Shirley C. Scott, Member of the Tucson City Council; Steve Leal, Member of the Tucson City Council; and Molly McKasson, Member of the Tucson City Council, Defendants/Appellees, and Carolyn A. TROWBRIDGE; Jeffrey A. Imig; and Maritza J. Broce, Defendants as Real Parties in Interest/Appellants.
• Court: Arizona Supreme Court

Page 502

949 P.2d 502

257 Ariz. Adv. Rep. 19

Brian WINKLE, an individual; Frank Beauvais, an individual, Plaintiffs/Appellees, v. CITY OF TUCSON; Kathleen Detrick, City Clerk; George Miller, Mayor of the City of Tucson; Jose J. Ibarra, Member of the Tucson City Council; Janet Marcus, Member of the Tucson City Council; Michael J. Crawford, Member of the Tucson City Council; Shirley C. Scott, Member of the Tucson City Council; Steve Leal, Member of the Tucson City Council; and Molly McKasson, Member of the Tucson City Council, Defendants/Appellees, and Carolyn A. TROWBRIDGE; Jeffrey A. Imig; and Maritza J. Broce, Defendants as Real Parties in Interest/Appellants.

No. CV-97-0374-AP.

Supreme Court of Arizona,

En Banc.

Dec. 4, 1997.

Fennemore Craig, P.C. by Andrew M. Federhar, Theresa Dwyer, Amy A. Anderson, Tucson, for Plaintiffs/Appellees.

Thomas J. Berning, Tucson City Attorney by Dennis P. McLaughlin, Bradford C. Detrick, Tucson, for Defendants/Appellees.

Southern Arizona People's Law Center by Paul J. Gattone, Tucson, for Defendants as Real Parties in Interest/Appellants.

OPINION

FELDMAN, Justice.

This is an appeal from an order enjoining the City of Tucson and its Clerk from placing an initiative on the November 1997 ballot. We review the trial court's ruling pursuant to our appellate jurisdiction under A.R.S. § 19-122(C). On September 13, 1997, after considering the submitted briefs, we vacated the trial court's order and advised the Clerk that the initiative could be placed on the general election ballot. We further indicated that this opinion would follow.

FACTS AND PROCEDURAL HISTORY

Signed on April 4, 1997, A.R.S. § 23-362 declared minimum wage a matter of statewide concern and forbade any governmental subdivision from establishing a minimum wage in excess of the federal minimum wage. Some six months before the statute was enacted, interested parties had already commenced a signature drive for the "Tucson Livable Wage Initiative." If passed, the initiative would have required Tucson employers to pay workers a minimum wage of $7.00 per hour effective January 1, 1998. On August 1, 1997, the City Clerk certified to the Mayor and City Council that the initiative satisfied all state and city procedural requirements and was therefore a qualified proposal. Thus, on August 4, the City Council placed the initiative on the ballot. On August 11, initiative opponents Brian Winkle and Frank Beauvais ("Appellees") filed a complaint in Pima County Superior Court alleging that the proposed initiative contained both procedural and substantive defects. The trial judge found no procedural defect but enjoined the initiative as substantively preempted by A.R.S. § 23-362. The initiative proponents appealed, asking this court to consider one issue: Whether a court can enjoin a proposed initiative on the basis that its content, if passed, may be preempted by state law.

The fundamental question is whether the judicial power granted by the Arizona Constitution permits our courts to examine the substance of an initiative and remove it from the election ballot. Initiative opponents contend that even before its passage, the initiative is ripe for preemption review. Concluding our constitution forbids this type of judicial interference with the people's power to legislate, we hold that the initiative is not ripe for review.

DISCUSSION

A. Separation of powers

Arizona's constitution ensures the proper distribution of power among our three separate and distinct branches of government. Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 586, 886 P.2d 1338, 1342 (1994). The Distribution of Powers clause of Article III reads, "The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial ... and no one of such departments shall exercise the powers properly belonging to either of the others."

"This court has carefully observed these dividing lines, particularly in cases where we are asked to prohibit or require legislative action." Fairness & Accountability, 180 Ariz. at 586, 886 P.2d at 1342. We have long held that Article III requires the judiciary to refrain from meddling in the workings of the legislative process. See Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617 (1952); City of Phoenix v. Superior Court, 65 Ariz. 139, 175 P.2d 811 (1946). Part of this legislative process is the people's power to create legislation through initiative. Ariz. Const. art. IV, pt. 1, § 1(8); Allen v. State, 14 Ariz. 458, 467, 130 P. 1114, 1118 (1913) ("[t]he people did not commit to the legislature the whole law-making power of the state, but they especially reserved in themselves the power to initiate and defeat legislation by their votes.").

Only two years after statehood, this court held that determining an initiative's validity before the voters had an opportunity to vote on it would

be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.

State v. Osborn, 16 Ariz. 247, 249-50, 143 P. 117, 118 (1914) (emphasis added). The separation of powers doctrine dictates our deference to legislative functions. "The legislative power of the people is as great as that of the legislature." Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987) (citing Ariz. Const. art XXII, § 14). Voter initiatives, part and parcel of the legislative process, receive the same judicial deference as proposals before the state legislature--courts are powerless to determine their substantive validity unless and until they are adopted.

As a true reflection of democratic principles, Arizona citizens are not precluded from legislating on any issue, even though the legislation might conflict with the Arizona Constitution or state law. Iman v. Bolin, 98 Ariz. 358, 364-65, 404 P.2d 705, 709 (1965). The constitutionality of such a measure will only be tested after it becomes law. Id. Thus, so long as it is uncertain whether an initiative will become law, this court will not intervene in a wholly legislative process.

B. Judicial review

Appellees attempted to derail an initiative proposal prior to public vote. Because the election had not yet occurred, ripeness was at issue. Cf. Tilson, 153 Ariz. at 470, 737 P.2d at 1369 (unless measure is procedurally defective on its face, we will not pass on its validity before electorate votes on it). The ripeness doctrine prevents a court from rendering a premature judgment or opinion on a situation that may never occur. Arizona Downs v. Turf Paradise, Inc., 140 Ariz. 438, 444, 682 P.2d 443, 449 (App.1984). For this reason, courts do not address matters of substantive interpretation of initiative proposals prior to election.

Preelection review of the substantive validity of an initiative may arguably be more efficient, but we have considered and rejected this possibility. In Williams v. Parrack, this court held that, "[w]hile it may entail considerable expense to submit the ordinance to a vote of the people, this court has not the authority to pass upon the validity or invalidity of said ordinance before its enactment into law." 83 Ariz. 227, 231, 319 P.2d 989, 991 (1957).

Prior to passage, this court will consider only procedural defects in form that bear directly on the integrity of the election process. The statute governing initiatives requires only that a petition be legally sufficient to receive constitutional protection and be placed on the ballot. See A.R.S. § 19-122(C). We first construed this requirement in Osborn, in which we held that an initiative was legally sufficient so long as it was not fraudulent and complied with the form and signature requirements. 16 Ariz. at 250, 143 P. at 118. Under Osborn, the text of an initiative need not be substantively valid for it to be cloaked with constitutional protection. Id. As this court stated in Williams, "[i]t is only in cases where the initiative petition is defective in form ... where the procedure prescribed has not been followed that the court has authority to intervene and enjoin its enactment." 83 Ariz. at 231, 319 P.2d at 991 (emphasis added).

1. Procedural defects in form

This court has recognized only two kinds of procedural defects in intiative petitions. The first is a failure to structurally comply with A.R.S. §§ 19-101 to 19-144. For example, the petition could lack the requisite number of signatures or fail to comply with publication requirements. See Fairness & Accountability, 180 Ariz. at 587-88, 886 P.2d at 1343-44 (discussing the necessity of compliance with publication requirements); Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936) (enjoining election for failure to follow statutorily required publishing procedure that created procedural defect).

The second arises when text of the initiative does not comprise legislation because it fails to enact anything. Saggio v. Connelly, 147 Ariz. 240, 241, 709 P.2d 874, 875 (1985). For an initiative to form legislation, its text must propose "a definite, specific act or resolution" that is more than an expression of "general principles." Id. ¹

The trial judge found no procedural defects. Nor do Appellees challenge the form of the initiative. See Ariz. Const. art. XII, § 1; A.R.S. §§ 19-101 to 19-144. Additionally, Appellees do not contend that the proposal does not constitute legislation; in fact, it is precisely because of its potential legislative effect that Appellees seek to block it. At this point, any inquiry beyond procedural defect would prematurely examine the measure's substantive validity.

2. State law preemption of a proposed initiative

Appellees urge us to undertake a preelection preemption analysis and disqualify the initiative. Preemption requires a two-step analysis:...