SUPREME COURT OF ARIZONA
En Banc
KIRK ADAMS, Speaker of the ) Arizona Supreme Court
Arizona House of Representatives, ) No. CV-10-0405-SA
in his official capacity; and )
RUSSELL PEARCE, President of the )
Arizona Senate, in his official )
capacity, )
)
Petitioners, )
)
v. ) O P I N I O N
)
THE COMMISSION ON APPELLATE )
COURT APPOINTMENTS; )
REBECCA WHITE BERCH, officially )
in her capacity as Chair of the )
Commission on Appellate Court )
Appointments; SUZANNE M. )
BALLARD; DOUG COLE; CAREY )
DOBSON; ROBERT M. GALLO; JOHN A. )
LEAVITT; LINDA MARTIN; DEWEY D. )
SCHADE; JANE C. STRAIN; JOHN )
THOMAS TAYLOR, III; CHARIE )
WALLACE; WILLIAM J. EKSTROM, )
JR.; JILL HARRISON; MICHAEL )
RUSING; and TED A. SCHMIDT, )
officially in their capacities )
as members of the Commission on )
Appellate Court Appointments, )
)
Respondents. )
)
__________________________________)
Special Action
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND DENIED IN PART
________________________________________________________________
ARIZONA HOUSE OF REPRESENTATIVES Phoenix
By Peter A. Gentala
And
ARIZONA STATE SENATE Phoenix
By Gregrey G. Jernigan
Attorneys for Kirk D. Adams and Russell K. Pearce
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Mary R. O'Grady, Solicitor General
Mark D. Wilson, Assistant Attorney General
Rex C. Nowlan, Assistant Attorney General
Attorneys for Commission on Appellate Court Appointments,
Rebecca White Berch, Suzanne M. Ballard, Doug Cole, Carey
Dobson, Robert M. Gallo, John A. Leavitt, Linda Martin,
Dewey D. Schade, Jane C. Strain, John Thomas Taylor, III,
Charie Wallace, William J. Ekstrom, Jr, Jill Harrison,
Michael Rusing, and Ted A. Schmidt
HARALSON MILLER PITT FELDMAN & MCANALLY PLC Tucson
By Stanley G. Feldman
And
PERKINS COIE LLP Phoenix
By Paul F. Eckstein
Colin P. Ahler
Amy C. Chang
Attorneys for Amici Curiae Lattie Coor, Paul Johnson,
Valley Citizens League, Phoenix and Arizona Latino
Research Enterprise
SHEILA SULLIVAN POLK, YAVAPAI COUNTY ATTORNEY Prescott
By Jack H. Fields, Deputy County Attorney
Attorneys for Amicus Curiae Yavapai County Attorney
GORDON & REES, LLP Phoenix
By Stephen W. Tully
Attorneys for Amici Curiae Jeff Flake, Trent Franks,
Benjamin Quayle, Paul Gosar, and David Schweikert
________________________________________________________________
B A L E S, Justice
¶1 This special action challenges the qualifications of
three nominees to the Arizona Independent Redistricting
Commission. On January 19, 2011, we issued an order accepting
jurisdiction and granting relief in part, stating that a written
2
opinion would follow. This is that opinion.
I.
¶2 In 2000, the voters approved Proposition 106, which
amended the Arizona Constitution to require that a five-member
Independent Redistricting Commission (“IRC”) draw boundaries for
congressional and state legislative districts after every
decennial census. The IRC must be constituted by February 28 of
each year ending in one. Ariz. Const. art. 4, pt. 2, § 1(3).
No more than two Commission members may belong to the same
political party. Id. In addition, during the three years
preceding appointment,
members shall not have been appointed to, elected to,
or a candidate for any other public office, including
precinct committeeman or committeewoman but not
including school board member or officer, and shall
not have served as an officer of a political party, or
served as a registered paid lobbyist or as an officer
of a candidate's campaign committee.
Id.
¶3 The Arizona Constitution directs that by January 8 of
years ending in one, the Commission on Appellate Court
Appointments (“Appointment Commission”) shall nominate twenty-
five persons to serve on the IRC, “with ten nominees from each
of the two largest political parties in Arizona . . . and five
who are not registered with either of the two largest political
parties in Arizona.” Id. §§ 1(4), (5).
¶4 After the Appointment Commission has created its list
3
of twenty-five nominees, the highest ranking officer of the
Arizona House of Representatives appoints one person from the
list to serve on the IRC. Id. § 1(6). Appointments of the next
three commissioners are then made from the list successively by
the House minority leader, the highest ranking officer of the
Arizona Senate, and the Senate minority leader. Id. The four
commissioners chosen by the legislative leaders select the
fifth, who cannot be a member of any party already represented
on the IRC. Id. § 1(8).
¶5 In September 2010, the Appointment Commission
announced that it was accepting applications from persons
interested in serving on the IRC. Seventy-nine people applied,
including Mark Schnepf, Stephen Sossaman, and Paul Bender.
Schnepf and Sossaman, both Republicans, reported on their
applications that they serve as directors for irrigation
districts. Schnepf is on the board for the New Magma Irrigation
District; Sossaman is on the board for the Queen Creek
Irrigation District. Bender, an independent, stated on his
application that he serves as “Chief Judge of two Arizona tribal
courts.” Bender, a law professor at Arizona State University,
serves as the Chief Justice of the Supreme Court of the Fort
McDowell Yavapai Nation and the Chief Judge of the Court of
Appeals of the San Carlos Apache Tribe.
¶6 The Appointment Commission met on December 8, 2010, to
4
take public comment, obtain legal advice on eligibility
questions, interview forty applicants, and select nominees. The
committee selected twenty-five nominees, including Bender,
Schnepf, and Sossaman. Two days later, Kirk Adams, Speaker of
the House of Representatives, and Russell Pearce, President of
the Senate, asked the Appointment Commission to reconsider,
arguing that the three contested nominees were ineligible
because they held public office. The two legislators notified
Bender, Schnepf, and Sossaman that they would not consider
appointing them and urged them to withdraw. Bender declined;
Schnepf and Sossaman sent withdrawal letters to the Appointment
Commission.
¶7 On December 29, 2010, the Appointment Commission
declined to change its selections and transmitted its list of
twenty-five nominees to Adams. The next day, Adams and Pearce
filed a petition for special action with this Court, arguing
that the three challenged nominees are ineligible because they
hold other public office and that Schnepf and Sossaman are also
ineligible because they have withdrawn their applications.
II.
¶8 “Our decision to accept jurisdiction of a special
action is highly discretionary.” League of Ariz. Cities & Towns
v. Martin, 219 Ariz. 556, 558 ¶ 4, 201 P.3d 517, 519 (2009). In
invoking this Court’s jurisdiction, Petitioners allege that the
5
Appointment Commission has “failed to . . . perform a duty
required by law as to which [it had] no discretion,” Ariz. R.P.
Spec. Act. 3(a), because it has not established a pool of
twenty-five “persons who are willing to serve on and are
qualified for appointment” to the IRC. See Ariz. Const. art. 4,
pt. 2, § 1(5).
¶9 We agree that Petitioners, as the persons entitled to
make the first and third appointments to the IRC, have standing
to challenge the legality of the Appointment Commission’s list
of nominees. See Brewer v. Burns, 222 Ariz. 234, 237-38
¶¶ 11-14, 213 P.3d 671, 674-75 (2009). We exercise our
discretion to accept jurisdiction because “this case involves a
dispute at the highest levels of state government” requiring “a
prompt determination.” Rios v. Symington, 172 Ariz. 3, 5, 833
P.2d 20, 22 (1992).
III.
A.
¶10 Arizona’s constitution states that “[w]ithin the three
years previous to appointment,” members of the IRC “shall not
have been appointed to, elected to, or a candidate for any other
public office, including precinct committeeman or committeewoman
but not including school board member or officer.” Ariz. Const.
art. 4, pt. 2, § 1(3). Commissioners are also subject to a
disqualification provision: “A commissioner, during the
6
commissioner’s terms of office and for three years thereafter,
shall be ineligible for Arizona public office or for
registration as a paid lobbyist.” Id. § 1(13).
¶11 The term “public office” as used in § 1(3) is not
defined in the constitution. The sentence in which the term
appears, however, provides guidance as to its meaning. Section
1(3) refers to “other public office” in contrast to service as
an IRC commissioner, a state office, and “public office”
therefore includes other state offices. In addition, § 1(3)
excludes school board members. Because school districts are
political subdivisions of the state, A.R.S. § 15-101(21) (2011),
this exclusion implies that public offices of other political
subdivisions (e.g., counties or municipalities) are encompassed
by the term “public office” in § 1(3). Cf. State Consol. Publ’g
Co. v. Hill, 39 Ariz. 21, 28-32, 3 P.2d 525, 528-29 (1931)
(holding that municipal officers are subject to prohibition in
Article 4, Part 2, Section 17 on changes in compensation of
“public officers” during term of office), modified on other
grounds, 39 Ariz. 163, 4 P.2d 668 (1931).
¶12 Thus, “public office” as used in § 1(3) includes
offices of the state or any of its political subdivisions,
excluding school board members or officers. Cf. A.R.S. § 38-
101(1) (defining “office” to mean “any office . . . of the
state, or any political subdivision thereof, the salary or
7
compensation . . . of which is paid from a fund raised by
taxation or by public revenue”).
B.
¶13 If an irrigation district director holds an “office”
of a political subdivision of the state, Schnepf and Sossaman
are ineligible to serve as commissioners.
¶14 Irrigation districts “derive their powers from the
constitution and statutes of Arizona.” Hohokam Irr. & Drainage
Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 397 ¶ 6, 64 P.3d
836, 839 (2003). Article 13, section 7 of the Arizona
Constitution states that irrigation districts are “political
subdivisions of the state, and vested with all the rights,
privileges and benefits, and entitled to the immunities and
exemptions granted municipalities and political subdivisions
under this constitution.” See also A.R.S. § 48-2901 (“All
irrigation districts organized under the laws of this state are
declared to be municipal corporations for all purposes.”).
¶15 Irrigation districts are managed by elected boards of
directors, who, along with a secretary appointed by the board,
comprise the “officers” of the district. A.R.S. §§ 48-2971.
Although irrigation districts have business and economic
purposes, rather than a solely governmental one, Local 266,
Int’l. Bhd. of Elec. Workers v. Salt River Project Agric.
Improvement & Power Dist., 78 Ariz. 30, 42-43, 275 P.2d 393,
8
401-02 (1954), their activities are authorized by the
constitution and by statute, and their business is of a public
nature similar in some respects to certain statutorily
authorized activities of cities and towns. See Ariz. Const.
art. 2, § 34 (empowering municipal corporations “to engage in
industrial pursuits”); A.R.S. § 9-511 (empowering cities and
towns to engage in business of a public nature, such as
operating a public utility). An irrigation district board of
directors has broad powers to acquire and sell water and
property, appropriate water and money, levy fines, and construct
water and electrical delivery systems. A.R.S. § 48-2978.
¶16 Because irrigation districts are political
subdivisions of the state and their “officers” include their
directors, we conclude that Schnepf and Sossaman hold “public
office” for purposes of § 1(3), just as officers of a city or a
county hold public office. Notably, directors of irrigation
districts take the same oath of office as county officials, see
A.R.S. § 48-2973, -3023, and they are treated like county
officers for purposes of recall. See id. § 48-3024 (permitting
the recall of directors of irrigation districts and stipulating
that the proceedings for such a recall follow what is “provided
by the constitution and laws of the state for the recall of
county officers”).
¶17 Schnepf and Sossaman are therefore ineligible to serve
9
as IRC commissioners. We thus do not address Petitioners'
argument that they are also ineligible because they are not
willing to serve.
C.
¶18 Bender is not an officer of the state or any of its
political subdivisions. We assume, but need not decide, that he
is an “officer” of the two tribes for which he serves as a part-
time judge. Bender’s eligibility turns on whether a tribal
office is a “public office” under § 1(3) of the constitution.
¶19 Petitioners and the amici congressional
representatives argue that “public office” must include more
than offices of the state or its subdivisions, because the
addition of the word “Arizona” before “public office” in the
disqualification provision of § 1(13) would otherwise be
superfluous. They also note that allowing members of Congress
to serve as commissioners would conflict with Proposition 106’s
intent to remove self-interested officials from the process of
drawing boundaries for their own electoral districts.
¶20 The meaning of “public office” cannot be identified
without considering the context in which the term appears and
the fact that, long before the adoption of § 1(3), the
constitution had used the terms “public office” or “public
officer” in several other provisions. See Kilpatrick v.
Superior Court (Miller), 105 Ariz. 413, 419, 466 P.2d 18, 24
10
(1970) (recognizing that “constitutions must be construed as a
whole and their various parts must be read together”); State ex
rel. Jones v. Lockhart, 76 Ariz. 390, 398, 265 P.2d 447, 452-53
(1953) (noting that “no constitutional provision is to be
construed piece-meal, and regard must be had to the whole of the
provision and its relation to other parts of the Constitution”).
There is also force to the argument that “public office” as used
in § 1(3)’s eligibility provision extends more broadly than the
term “Arizona public office” as used in § 1(13)’s
disqualification provision. We accordingly consider how the
term “public office” has been interpreted in Arizona law before
the adoption of Proposition 106.
¶21 The Enabling Act that resulted in Arizona’s statehood
provided for an initial election at which “officers for a full
state government, including a governor, members of the
legislature, one Representative in Congress, and such other
officers as such constitutional convention shall prescribe,
shall be chosen by the people.” Act of June 20, 1910, ch. 310,
§ 23, 36 Stat. 557, 571. Consistent with this mandate,
delegates at our state constitutional convention approved an
ordinance providing that at the initial state election:
[O]fficers for a full State government shall be chosen
by the people, including all the elective State,
County, and Precinct officers and members of the
Legislature, provided for by said Constitution, and
one Representative of Congress. For the purpose of
11
advising the Legislature, the people shall also
express at said election, their choice for two United
States Senators to represent the State in Congress.
Elec. Ord. No. 2, § 2.
¶22 Thus, on the eve of statehood, representatives to
Congress were identified as among the “officers for a full state
government.” (United States Senators were not directly elected
until after the 1913 ratification of the Seventeenth Amendment.)
Members of Congress are properly regarded as “officers
for . . . a state,” even though they are not state officers,
inasmuch as they are chosen “by the People” of their respective
states, and the vote of representatives may, in rare instances,
be taken by state. U.S. Const. art. 1, § 2, cls. 1-2; amend.
XII (providing that vote of House of Representatives in
selecting President shall be taken by state); amend. XVII
(providing for direct election of senators).
¶23 The Arizona Constitution as drafted in 1910 and
implemented in 1912 also contained several references to “public
office.” Some of those references have long been understood to
include Arizona’s members of Congress. For example, the
constitution provides that “[w]hen any office shall, from any
cause, become vacant, and no mode shall be provided by the
Constitution or by law for filling such vacancy, the governor
shall have the power to fill such vacancy by appointment.”
Ariz. Const. art. 5, § 8. The inaugural state legislature
12
provided for the filling of certain vacancies, including those
in Congress. See Rev. Stat. Ariz. Civ. § 2869 (1913) (providing
that “[s]pecial elections to fill vacancies in the offices of
members of the legislature, representatives in congress or
United States senators shall only be held on the proclamation of
the governor”); id. § 2870 (providing for interim appointment
and election to fill unexpired Senate term upon vacancy).
¶24 Arizona’s constitution also broadly declares in
Article 8, Part 1, Section 1 that “[e]very public officer in the
State of Arizona, holding an elective office . . . is subject to
recall.” Since statehood, Arizona has had statutory recall
provisions directed at members of Congress. Rev. Stat. Ariz.
Civ. § 22-3054 to -3364 (1913) (providing for advisory recall
elections of members of Congress); A.R.S. §§ 19-221 to -222
(allowing members of Congress to file statements indicating
their willingness to resign in response to a recall election).
¶25 Also relevant is Article 6, Section 28, of the Arizona
Constitution, which provides that “[j]ustices and judges of
courts of record shall not be eligible for any other public
office or for any other public employment during their term of
office.” Before 1960, Article 6 stated that supreme court
justices and superior court judges “shall not be eligible to any
office or public employment” other than judicial office “during
the term for which they shall have been elected.” Ariz. Const.
13
art. 6, § 11 (repealed 1960).
¶26 In Stockton v. McFarland, a primary candidate argued
that this provision rendered his opponent, a superior court
judge, ineligible for the United States Senate. 56 Ariz. 138,
139-40, 106 P.2d 328, 328 (1940). The opponent, Ernest
McFarland, responded by arguing that the reference to “any
office” concerned solely state offices and, in any event, the
state could not add to qualifications established by the federal
Constitution for Senators. Evidently assuming that “any office”
as used in article 6 would include United States Senators (the
Court did not address the contrary argument), the Court accepted
McFarland’s alternative argument, holding that the federal
Constitution bars states from altering the qualifications for
members of Congress. Id. at 147-48, 106 P.2d at 331.
¶27 Arizona’s legislature has also repeatedly enacted
statutes suggesting, at least implicitly, that members of
Congress are regarded as holding public office. For example,
the state requires the filing of financial disclosures by
“public officers.” A.R.S. § 38-541(8). Members of Congress are
specifically excluded, suggesting that they might otherwise be
regarded as “public officers.” Id. Similarly, although Arizona
law broadly requires campaign finance disclosures for candidates
for public office, candidates for federal office are
specifically excluded. A.R.S. § 16-901(2) (excluding candidates
14
for federal office from state campaign disclosure law).
¶28 Arizona law, we acknowledge, is not entirely
consistent in its use of the terms “office,” “public office,”
and “public officer.” Sometimes the constitution expressly
distinguishes between federal and state offices. See, e.g.,
Ariz. Const. art. 4, pt. 2, § 4 (providing that, with certain
exceptions, “[n]o person holding any public office of profit or
trust under the authority of the United States, or of this
state, shall be a member of the legislature”); id. § 5
(providing, with certain exceptions, that legislators during
their term “shall [not] be eligible to hold any other office or
be otherwise employed by the state of Arizona or, any county or
incorporated city or town thereof”); id. art. 22, § 18
(providing that, “[e]xcept during the final year of the term
being served, no incumbent of a salaried elective office . . .
may offer himself for nomination or election to any salaried
local, State or federal office”).
¶29 The legislature has also sometimes interpreted the
constitution’s use of the term “public office” as referring only
to offices of the state and its political subdivisions. When
the constitution was ratified, Article 7, Section 16 directed
the legislature, during its first session, to adopt a law
providing for the disclosure of “all campaign contributions to,
and expenditures of . . . candidates for public office.” The
15
1912 statute adopted in response required financial disclosures
from “candidate[s] for election . . . to any state, county,
city, or town office.” Rev. Stat. Ariz. Civ. § 3054 (1913).
The statute did not mention any disclosures from candidates for
federal office.
¶30 Arizona law, however, has sometimes treated members of
Congress as holding “public office.” Given this backdrop, we
agree with Petitioners and the amici representatives that
Arizona’s members of Congress hold “public office” under § 1(3)
and thus are ineligible for service on the IRC. This conclusion
recognizes the evident purpose of § 1(3) to prevent self-
interested officials from drawing the boundaries of their own
electoral districts. Cf. Ariz. Const. art. 4, pt. 2, § 1(15)
(directing that “places of residence of incumbents or candidates
shall not be identified or considered”).
¶31 Our interpretation of § 1(3) also recognizes the
difference between its language and § 1(13)’s reference to
“Arizona public office.” Although Arizona may exclude members
of Congress or other federal officeholders from serving on the
IRC, § 1(13) recognizes that the state has no power to
disqualify candidates from serving in federal office or offices
created by other sovereign entities. See State ex rel. Pickrell
v. Senner, 92 Ariz. 243, 246-47, 375 P.2d 728, 729-30 (1962);
see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783
16
(1995); State v. Osborne, 14 Ariz. 185, 207, 125 P. 884, 893-94
(1912) (recognizing power of Congress to fix time for election
of representatives contrary to state constitution); Op. Ariz.
Att’y Gen. I07-011, 2007 WL 4401306 (Dec. 5, 2007) (concluding
that §1(13) applies only to Arizona state and local offices
given different phrasing in § 1(3) and because state cannot add
to qualifications for federal office).
D.
¶32 Our conclusion that members of Congress hold “public
office” for purposes of § 1(3) does not, however, resolve
whether Bender, a tribal judge, holds a public office. Is a
tribal office a public office under § 1(3)?
¶33 Petitioners argue that a tribal judgeship is a “public
office” because the term generally refers to a position in which
a person exercises a government’s sovereign powers and Indian
tribes are sovereign entities. Citing dictionary definitions of
“public office,” the dissent similarly argues that § 1(3) should
be construed broadly to include tribal officers.
¶34 These arguments are not persuasive because they seek
to interpret “public office” without considering the context in
which it appears within § 1(3) and the way in which this phrase
has otherwise been interpreted under Arizona law. As Justice
Scalia has observed, it is a “fundamental principle of statutory
construction (and, indeed, of language itself) that the meaning
17
of a word cannot be determined in isolation, but must be drawn
from the context in which it is used.” Deal v. United States,
508 U.S. 129, 132 (1993). The same proposition applies in
construing our constitution. See Corp. Comm'n v. Pac. Greyhound
Lines, 54 Ariz. 159, 170, 94 P.2d 443, 447 (1939) (observing
that constitutional provisions must be construed in light of the
‘instrument as a whole”); cf. NLRB v. Federbush Co., 121 F.2d
954, 957 (2nd Cir. 1941) (L. Hand, J.) (noting that “[w]ords are
not pebbles in alien juxtaposition; they have only a communal
existence; and not only does the meaning of each interpenetrate
the other, but all in their aggregate take their purport from
the setting in which they are used”).
¶35 Indian tribes are not, of course, political
subdivisions of the state. Instead, Indian tribes have been
recognized since the ratification of the United States
Constitution as having a special sovereign status separate from
the federal government and the states. Cf. U.S. Const. art. I,
§ 8, cl. 3 (granting Congress the power “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the
Indian Tribes”). “Indian tribes retain attributes of sovereignty
over both their members and their territory, to the extent that
sovereignty has not been withdrawn by federal statute or
treaty.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987)
(citation and internal quotation marks omitted).
18
¶36 Consistent with the tribes’ distinctive status,
Arizona’s constitution and laws generally do not include tribes
within the meaning of the word “public.” Cf. Ariz. Const. art.
20, § 4 (referring separately to “public lands” and “lands . . .
owned or held by . . . Indian tribes”). As noted above, see
supra ¶¶ 23-29, Arizona’s constitution and statutes refer in
many places to public office or public officers (for example, in
provisions governing recall or financial disclosure), but none
of those provisions has been construed to embrace tribal
offices. Indeed, at oral argument, counsel could not identify
any instance in Arizona law in which the word “public” has been
interpreted to refer to Indian tribes.
¶37 Petitioners and the congressional amici also contend
that a tribal judge is a “public officer” under the test adopted
in Winsor v. Hunt, 29 Ariz. 504, 520-21, 243 P. 407, 413 (1926).
Winsor concerned a constitutional prohibition on state
legislators being appointed or elected during their term to “any
civil office of profit under this State” created during their
term. (This provision was later replaced by a 1938 amendment
adopting the language now in Article 4, Part 2, Section 5.) The
Court concluded that the prohibition applied to “public
officers” but not mere “employees.” Winsor, 29 Ariz. at 517,
243 P. at 412.
¶38 Recognizing that “[t]here is no entirely satisfactory
19
definition” of public office, id. at 518, 243 P. at 412, the
Court in Winsor said a position is presumably an office, rather
than employment, if (1) the specific position is created by law,
(2) there are “definite duties imposed by law on the incumbent,”
and (3) the duties “involve the exercise of some portion of the
sovereign power.” Id. at 520-21, 243 P. at 413.
¶39 Winsor is inapposite. It construed a since-replaced
constitutional provision and did not purport to adopt a general
definition of “public office.” But most importantly, Winsor did
not concern whether an individual held a “public” position
(Winsor indisputably worked for the state), but instead whether
the person was an officer rather than an employee. Although we
do not question Winsor’s criteria for identifying when a
position created by state law qualifies as an “office of profit
under this State,” or that those criteria might provide useful
guidance in other contexts, cf. McCarthy v. State ex rel.
Harless, 55 Ariz. 328, 336, 101 P.2d 449, 452 (1940) (observing
that position on a county welfare board was an “office” under
Winsor in construing statute concerning eligibility to serve as
county supervisor), we decline to use them to define “public
office” for purposes of § 1(3).
¶40 In arguing that “public office” as used in § 1(3)
includes tribal judges, Petitioners also contend that Indian
tribes are “communities of interest” affected by redistricting
20
and that allowing tribal officers to serve as commissioners
would undermine the goals of promoting impartiality and public
confidence in the redistricting process. These arguments are
not compelling. Section 1(3) does not exclude persons from
service as commissioners merely because they may be associated
with some group characterized as a community of interest.
Indeed, § 1(3) does not exclude many persons who might be
regarded as potentially interested or biased in the
redistricting process, such as relatives or staff members of
incumbents or prospective candidates.
¶41 Moreover, we are confident that the Appointment
Commission will carefully exercise its constitutional
responsibility to identify nominees who are committed to serving
“in an honest, independent and impartial fashion and to
upholding public confidence in the integrity of the
redistricting process.” Ariz. Const. art. 4, pt. 2, § 1(3).
Here, there is no reason to question the Appointment
Commission’s conclusion that Bender, despite his service as a
tribal judge, could serve impartially and uphold public
confidence in the integrity of the process.
¶42 Before § 1(3) was adopted, the Arizona Constitution
had referred to “public office” or “public officers” in a half
dozen places, none of which was ever construed to include tribal
officers. As noted above, no legal authority identified by the
21
parties or this Court has interpreted a state law referring to
“public office” as including tribal offices absent a specific
statutory reference to Indians or tribes. For this Court to
construe § 1(3) as including tribal offices would thus
constitute a unique and unprecedented interpretation of the
phrase “public office.” Since statehood, this Court has
declined to construe provisions restricting eligibility for
public office more broadly than the constitution’s text
requires. See Steeves v. Wilson, 14 Ariz. 288, 290, 127 P. 717,
717-18 (1912) (concluding that although Article 7, Section 15
requires office holders to be qualified electors, it does not
require that they vote at election held to fill the office). We
decline to do so again today.
¶43 Because § 1(3) contains no language indicating that
its proscription on commissioners holding “other public office”
extends to Indian tribes, we hold that the position of tribal
judge is not a “public office” for purposes of § 1(3).
IV.
¶44 For the reasons stated, we accepted jurisdiction and
granted relief in part. Because Schnepf and Sossaman are
ineligible to serve as commissioners, we ordered the Appointment
Commission promptly to identify two alternative nominees so that
Adams could appoint the initial commissioner from a pool of
twenty-five qualified nominees. Petitioners’ request for relief
22
was denied as to Bender because his position as a tribal judge
does not render him ineligible to serve as a commissioner.
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice (Retired)
B R U T I N E L, Justice, dissenting in part
¶45 I concur with the majority’s result concerning Schnepf
and Sossaman, but respectfully dissent from its analysis of the
phrase “any other public office” as used in Article 4, Part 2,
§ 1(3) of the Arizona Constitution, as well as its analysis of
Professor Bender’s eligibility for service on the IRC. A
straightforward reading of the constitutional provisions at
issue reveals a clear, unambiguous intent to broadly curtail the
influence of the politically entrenched and politically
ambitious on that Commission’s work and decisions. See Carrow
Co. v. Lusby, 167 Ariz. 18, 20-21, 804 P.2d 747, 749-50 (1990)
(in interpreting a law, court examines its language and
considers underlying policy and “the evil it was designed to
23
remedy”). In my view, the majority’s limited application of the
term “public office” could undermine that intent and fails to
yield an easily understood, workable standard. Moreover, its
construction has the unacceptable practical effect of replacing
the word “any” in § 1(3) with the word “some,” a reading
inconsistent with that provision’s actual, broad language. See
Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 407-08 ¶¶ 18-
19, 111 P.3d 1003, 1007-08 (2005) (finding broadly worded
constitutional provision did not support narrow construction);
see also Backus v. State, 220 Ariz. 101, 106 ¶ 22, 203 P.3d 499,
504 (2009) (declining to engraft term not included in statute).
¶46 In promoting the proposed constitutional amendment to
establish the membership of the IRC, proponents of Proposition
106 said it would create “an independent commission of balanced
appointments to oversee the mapping of fair and competitive
congressional and legislative districts,” Ariz. Sec’y of State
2000 Publicity Pamphlet 60 (2000). To further that objective,
the broadest possible restrictions were placed on potentially
interested parties. No person on the IRC may hold or be a
candidate for “any other public office” in the three years
preceding appointment. § 1(3). And at the conclusion of their
service, IRC members are further barred from seeking any
“Arizona public office” for three years. § 1(13).
¶47 As the majority recognizes, see supra, ¶¶ 20, 31, and
24
as the Arizona Attorney General’s Office has opined, these are
not symmetrical restrictions. See 2007 Op. Ariz. Att’y Gen.
I07-011, 2007 WL 4401306 (Dec. 5, 2007) (noting difference in
language between §§ 1(3) and 1(13), and concluding that latter
provision covers only Arizona public offices (state or local),
but not federal offices “because the State cannot add to the
qualifications for federal office”). The eligibility
restriction in § 1(3) for appointment to the IRC is broader than
the post-service restriction in § 1(13) because the state has
the power to impose the former. See Whitney v. Bolin, 85 Ariz.
44, 47, 330 P.2d 1003, 1004 (1958) (Arizona Constitution may
prescribe exclusive, controlling qualifications for state
officials).
¶48 Conversely, Arizona may exercise significantly less
authority over the prospective actions of former IRC members,
and none at all over other sovereign entities. See U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995); Pickrell v.
Senner, 92 Ariz. 243, 246, 375 P.2d 728, 729 (1962). Such
limitations would impermissibly infringe on those entities’
sovereign ability to define their own qualifications for public
office.1
1
A significant portion of the majority opinion is devoted to
deciding whether a member of Congress is a “public officer” under
the Arizona Constitution. That question, while no doubt
important, is not before this Court. But given the breadth of
25
¶49 Reading §§ 1(3) and 1(13) together, the specific
limitation in § 1(13) on a former member’s seeking an “Arizona”
public office is not intended to limit the applicability of the
general disqualification of “any” public office holder in
§ 1(3). See State Comp. Fund v. Superior Court (EnerGCorp,
Inc.), 190 Ariz. 371, 375, 948 P.2d 499, 503 (App. 1997) (“The
provision of one exemption in a statute implicitly denies the
existence of other unstated exemptions.”) (citing State v.
Roscoe, 185 Ariz. 68, 71, 912 P.2d 1297, 1300 (1996) (“[T]he
expression of one or more items of a class indicates an intent
to exclude all elements of the same class which are not
expressed.”)). If possible, therefore, the phrase “public
office” should be given a meaning consistent with the
unqualified terms used in § 1(3) to determine who exactly is
ineligible to serve on the IRC.
¶50 As noted, § 1(3) broadly disqualifies persons who
have, in the last three years, held or been a candidate for “any
other public office.” There is no express or implied exemption
for a tribal position.2 On the contrary, a perusal of legal and
the phrase “any other public office” in § 1(3), it clearly would
encompass members of Congress and render them ineligible for
service on the IRC.
2
Accordingly, I disagree with the majority’s position that the
exclusion of school board members from the ambit of this
provision “provides guidance as to its meaning.” See supra,
¶ 11. The exclusion of school board members from this provision
26
general dictionary definitions confirms that “public office”
includes the office of any government and is not limited to a
specific type of sovereign. See Brewer v. Burns, 222 Ariz. 234,
239-40 ¶ 27, 213 P.3d 671, 676-77 (2009) (consulting
dictionaries to determine ordinary usage of terms). General use
dictionaries define public officer as “a person who has been
legally elected or appointed to office and who exercises
governmental functions.” Merriam Webster’s Collegiate
Dictionary Eleventh Edition 1006 (2003); accord Webster’s 9th
New Collegiate Dictionary 952 (1983). Black’s Law Dictionary
similarly defines “public office” as “[a] position whose
occupant has legal authority to exercise a government’s
sovereign powers for a fixed period.” Black’s Law Dictionary
1348 (9th ed. 2008). It further defines “public” as “[r]elating
or belonging to an entire community, state, or nation,” and
“public official” as “[o]ne who holds or is invested with a
public office; a person elected or appointed to carry out some
portion of the government’s sovereign powers.” Because these
terms do not contain any express or implied exclusions for
merely suggests that “any . . . public office” means just that—
any public office. Moreover, the drafters’ choice to expressly
exclude a specific office tends to support a broad construction
of the phrase “public office.” In any event, the text does not
contain any other express limitations on the term, and we should
decline to limit it any further. See State Comp. Fund, 190 Ariz.
at 375, 948 P.2d at 503.
27
officers of Indian tribes, we should afford the phrase “any
other public office” its unqualified, broad meaning.
¶51 Giving the term “public office” the broad construction
that § 1(3) suggests, I would conclude that Bender, as chief
justice of two tribal courts, holds public office. At oral
argument, amicus Valley Citizens’ League’s counsel (advocating
for Professor Bender’s eligibility) expressly stated that Bender
is a public officer of the respective tribes he serves. The
constitutions and bylaws of both the San Carlos Apache and Fort
McDowell Yavapai tribes support this acknowledgement, expressly
delegating the judicial authority of their respective nations to
their judiciaries. And it is indisputable that the judicial
powers of a tribal nation are governmental powers of a
sovereign. See 25 U.S.C. § 3631 (2006) (recognizing inherent
sovereign authority of each tribal government’s judiciary); Penn
v. United States, 335 F.3d 786, 789 (8th Cir 2003) (“[A] tribal
court judge is entitled to the same absolute judicial immunity
that shields state and federal court judges.”). As a judge,
therefore, Bender exercises a portion of the governing power of
these two sovereigns, making him a public official of these
tribes.3
3
In response to a question in the IRC application that asked
about “elected or appointed offices” the applicant had held,
Professor Bender described his tribal judge positions with two
Indian nations and said his judicial role was “essentially the
28
¶52 Appropriately, the majority looks to the constitution
and Arizona statutes to determine if the term “public office”
has a particularized, consistent meaning under Arizona law and
concludes that it does not. See supra, ¶¶ 28-30. Also
understandably, the majority declines to simply adopt a
definition used elsewhere in Arizona law to construe § 1(3),
noting that “public office” has not been consistently
interpreted throughout Arizona law. But the majority then
rejects any applicable or relevant principles derived from
Winsor v. Hunt, 29 Ariz. 504, 243 P. 407 (1926), which provides
a logical framework for analyzing the issue, albeit in a
different context. Cf. Inquiry Concerning Complaint of Judicial
Standards Comm'n v. Not Afraid, 245 P.3d 1116, 1119 (Mont. 2010)
(using definition similar to Winsor analysis to determine
whether tribal judge was a public officer).
¶53 The majority’s unwillingness to adopt a definition of
the term “public office” skews its analysis of Bender’s
eligibility for service. Without a definition, the majority
correctly attempts to look to the context in which the term
“public office” appears. See supra, ¶ 20. But what it claims
is constitutional context appears to be mere constitutional
silence. The majority cites only a section of the Arizona
same as the role of federal judges with respect to the federal
government.”
29
Constitution that refers separately to “public lands” and
“Indian lands.” See supra, ¶ 38. Article 20, Section 4,
however disclaims the people’s right to appropriate as personal
property any ungranted public lands within the border of the
state and lands granted specifically to Indian tribes.4 This
provision does not appear to support the general proposition
that Indian tribes are not considered part of the public.
Moreover, even if it clearly separated Indian tribes from
“public,” this would not be binding on our interpretation,
particularly in light of the unqualified language in § 1(3) and
the intent to broadly restrict political manipulation of the
redistricting process. See Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 574 (2007) (explaining that the presumption that
identical words in the same statute have the same meaning gives
way when the context reflects they were employed with a
different intent).
4
Article 20, § 4 states in its entirety:
The people inhabiting this state do agree and declare
that they forever disclaim all right and title to the
unappropriated and ungranted public lands lying within
the boundaries thereof and to all lands lying within
said boundaries owned or held by any Indian or Indian
tribes, the right or title to which shall have been
acquired through or from the United States or any prior
sovereignty, and that, until the title of such Indian
or Indian tribes shall have been extinguished, the same
shall be, and remain, subject to the disposition and
under the absolute jurisdiction and control of the
Congress of the United States.
30
¶54 The majority also points out that “Arizona’s
constitution and statutes refer in many places to public office
or public officers . . . but none of those provisions has been
construed to embrace tribal offices.” Supra, ¶ 38. That point,
although correct, is neither surprising nor helpful to the
majority inasmuch as the issue presented here has never been
raised or decided before. Absent any controlling or pertinent
authority, giving the unqualified phrase “any other public
office” in § 1(3) a fair and rational interpretation, so as to
include within its broad sweep tribal offices, is no more
“unique and unprecedented” than the majority’s contrary holding,
particularly considering the overarching purpose of Proposition
106. See supra, ¶ 42.
¶55 In short, the majority’s observation provides no
constitutional or statutory support for excluding tribal offices
from the broad category of public office. In fact, the same
absence of authority supports including them within this
category because no law or case has expressly excluded tribal
officers. The most logical reading of constitutional language
affords a broad meaning to broad words unless expressly
narrowed, not a narrow meaning unless expressly broadened.5 See
5
Although I agree with the majority that this Court declines to
construe restrictions on public office more broadly than the text
supports, see Steeves v. Wilson, 14 Ariz. 288, 290, 127 P. 717,
31
State ex rel. La Prade v. Cox, 43 Ariz. 174, 177-78, 30 P.2d
825, 826-27 (1934) (“[B]ecause constitutions are for the purpose
of laying down broad general principles, and not the expression
of minute details of law, their terms are to be construed
liberally, for the purpose of giving effect to the general
meaning and spirit of the instrument . . . .”).
¶56 Moreover, this Court should be hesitant to infer too
much from Arizona law failing to expressly refer to Indian
tribes. Because states have limited authority to bind tribes,
see Ramah Navajo Sch. Bd. v. Bureau of Rev. of New Mexico, 458
U.S. 832 (1982), it is unsurprising that our laws contain few
references to tribes. This relative silence makes apparent what
is obviously true about Indian tribes: the State of Arizona
does not have the authority to govern them as it does its own
political subdivisions.
¶57 Section 1(3) is framed very broadly, has no
surrounding subsections that suggest a qualified or limiting
construction, and, as a constitutional provision enacted through
voter initiative, has no instructive legislative history.
Accordingly, it should be given the broad meaning the language
dictates.
¶58 Like the majority, and as the Commission on Appellate
718 (1912), here the text supports and, in fact, demands a broad
restriction.
32
Court Appointments implicitly determined, I have no doubt that
Professor Bender would exercise a position on the IRC “in an
honest, independent and impartial fashion” and would “uphold[]
public confidence in the integrity of the redistricting
process.” Ariz. Const. art. 4, pt. 2, § 1(3). But that is not
the issue. I am similarly convinced that Mr. Schnepf and Mr.
Sossaman would exercise their duties equally professionally,
honestly, and diligently. But our constitution categorically
excludes certain people from service on the IRC. Regardless of
our convictions about the sincerity and merit of any given
candidate, our duty is to give effect to the constitution as
written. Because the more reasonable interpretation of the
phrase “any other public office” in § 1(3) includes tribal
officers (as well as many other government posts, regardless of
the employing sovereign), I respectfully dissent from the
portion of the majority opinion that concludes otherwise.
_____________________________________
Robert M. Brutinel, Justice
CONCURRING:
____________________________________
A. John Pelander, Justice
33