Brewer v. Burns

SUPREME COURT OF ARIZONA
En Banc

JANICE K. BREWER, Governor of ) Arizona Supreme Court
the State of Arizona, in her ) No. CV-09-0168-SA
official capacity, )
)
Petitioner, )
)
v. )
)
ROBERT BURNS, individually and )
as President, Arizona State ) O P I N I O N
Senate; KIRK ADAMS, individually )
and as Speaker, Arizona House of )
Representatives; The ARIZONA )
STATE SENATE; The ARIZONA HOUSE )
OF REPRESENTATIVES; and CHARMION )
BILLINGTON, individually and as )
Secretary of the Arizona State )
Senate, )
)
Respondents. )
__________________________________)

Special Action

JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________

OFFICE OF THE GOVERNOR Phoenix
By Joseph A. Kanefield, General Counsel
Vanessa Hickman, Deputy General Counsel
Attorneys for Janice K. Brewer

CANTELME & BROWN, P.L.C. Phoenix
By David J. Cantelme
D. Aaron Brown
Paul R. Neil
Samuel Saks
Attorneys for Robert Burns, Kirk Adams, the Arizona House of
Representatives, the Arizona State Senate, and Charmion
Billington
________________________________________________________________
B A L E S, Justice

¶1 Because Arizona’s constitution directs that “[e]very

measure when finally passed shall be presented to the governor

for [her] approval or disapproval,” art. 4, pt. 2, § 12, this

Court ruled on June 23, 2009, that the Respondents

(collectively, the “Legislature”) cannot pass bills and then

withhold them to prevent the Governor from exercising her power

to approve or veto legislation. Given the unusual circumstances

of this case, however, we also declined to order the Legislature

to immediately present the Governor the budget bills at issue

here. This opinion explains our earlier order.

I.

¶2 This litigation arises from a dispute between the

Governor and the Legislature regarding the state budget for the

2010 fiscal year.

¶3 On June 4, 2009, the Arizona Senate passed, by a

simple majority vote, several appropriations bills: Senate Bills

1027, 1028, 1029, 1031, 1035, 1036, 1145, 1187, 1188, and 1258

(collectively, the “Budget Bills”). After passage, the Senate

President, Robert Burns, signed the engrossed version of the

bills in open session and ordered the bills transmitted to the

Arizona House of Representatives, which passed the bills that

day. Upon signing the bills, Kirk Adams, Speaker of the House

of Representatives, directed the Chief Clerk to return them to

2
the Senate.

¶4 Governor Janice K. Brewer publicly announced her

opposition to the Budget Bills and her intent to veto them at

least in part. The Legislature, however, declined to present

them to her. On June 15, 2009, the Governor delivered a letter

to President Burns and Speaker Adams requesting that they

present the Budget Bills to her by 5:00 p.m. that day. They

responded that the bills would be presented during the

legislative session, but it would be “premature” to transmit

them before the Legislature and Governor had reached agreement

on a budget.

¶5 The next day, the Governor filed a petition for

special action asking this Court to order the Legislature to

present the Budget Bills to her without further delay. After

expedited briefing, this Court heard oral argument on June 23,

2009.

II.

¶6 Both the Legislature and the Governor candidly

acknowledge that their disagreement over the timing of the

presentment of the Budget Bills reflects an effort by each

branch to enhance its position in ongoing budget negotiations.

The enactment of a budget often involves political disagreement,

bargaining, and compromise. Because this Court is reluctant to

enter the arena of political disputes between the executive and

3
legislative branches, we first consider whether the issue

presented is proper for judicial resolution.

A. Jurisdiction

¶7 Article 6, Section 5(1) of the Arizona Constitution

grants this Court original jurisdiction over “mandamus,

injunction and other extraordinary writs to State officers.” We

exercise this jurisdiction through the special action procedure,

but our decision to accept jurisdiction is “highly

discretionary.” Forty-Seventh Legislature v. Napolitano, 213

Ariz. 482, 485 ¶¶ 10-11, 143 P.3d 1023, 1026 (2006); Randolph v.

Groscost, 195 Ariz. 423, 425 ¶ 6, 989 P.2d 751, 753 (1999).

¶8 This case warrants the exercise of our special action

jurisdiction. The key issue is whether our constitution allows

the Legislature to pass bills, but then refuse for political

reasons to present them to the Governor for her veto or

approval. We accepted jurisdiction because the two political

branches have a good faith dispute over their respective powers

in the lawmaking process and the issue is of first impression

and statewide importance. See Forty-Seventh Legislature, 213

Ariz. at 485-86 ¶ 11, 143 P.3d at 1026-27; Randolph, 195 Ariz.

at 425 ¶ 6, 989 P.2d at 753.

¶9 The Legislature argues that even if special action

jurisdiction is appropriate, the Governor should have instead

filed this action in the superior court because there are

4
“intense fact questions.” We disagree. The relevant facts are

undisputed; the merits of this case turn on the meaning of a

constitutional provision. In light of the parties involved, the

issue, and the timing of this dispute in relation to the

enactment of a budget, special action relief was properly sought

from this Court. See League of Ariz. Cities & Towns v. Martin,

219 Ariz. 556, 558 ¶ 4, 201 P.3d 517, 519 (2009).

B. Standing and Ripeness

¶10 The Legislature also argues that the Governor lacks

standing and the dispute is not ripe for judicial resolution.

¶11 Although “we are not constitutionally constrained to

decline jurisdiction based on lack of standing,” Sears v. Hull,

192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998), “[c]oncern

over standing is particularly acute” when this Court is asked,

in effect, to referee disputes between the political branches.

See Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 20, 81 P.3d 311,

316 (2003) (“Without the standing requirement, the judicial

branch would be too easily coerced into resolving political

disputes between the executive and legislative branches, an

arena in which courts are naturally reluctant to intrude.”).

¶12 To have standing, a party generally must allege a

particularized injury that would be remediable by judicial

decision. See id. at ¶¶ 18, 22. The Governor contends that she

has standing because the Legislature’s refusal to present her

5
with finally passed bills violates the constitutionally

established procedure for lawmaking and undermines her express

authority to veto or approve bills. See Ariz. Const. art. 4,

pt. 2, § 12; art. 5, § 7.

¶13 The Legislature, in contrast, argues that the

Governor’s constitutional power to veto or approve a bill is not

triggered until it is presented to her, and therefore she cannot

complain of any constitutional injury based on the Legislature’s

refusal to present the bills.

¶14 The Governor has the better argument on standing. If

she is correct that the Legislature has violated the

constitution by withholding finally passed bills from her

review, then she has sustained a direct injury to her

constitutional authority. Cf. Forty-Seventh Legislature, 213

Ariz. at 487 ¶ 15, 143 P.3d at 1028 (finding that Legislature

had standing to challenge alleged unconstitutional exercise of

line-item veto). The Legislature’s standing arguments presume

that the Legislature is correct on the merits, that is, that the

Legislature can, at its discretion, withhold finally passed

bills from the Governor and thus she has sustained no injury.

Our standing analysis, however, looks to whether the petitioner

has plausibly alleged particularized injury as a precondition to

the Court’s deciding the merits; defendants cannot defeat

standing merely by assuming they will ultimately win.

6
¶15 The Legislature similarly argues that the Governor’s

lawsuit is not ripe because when this case was submitted for

decision, the Legislature was still in session and the Governor

is not entitled to the presentment of finally passed bills

before the Legislature adjourns. The Legislature cites Campaign

for Fiscal Equity, Inc. v. Marino, which held that because the

New York Constitution implicitly requires the presentment of

bills within a “reasonable time,” the New York Legislature could

not adjourn without transmitting bills it had passed. 661

N.E.2d 1372, 1374 (N.Y. 1995). The Legislature’s argument here

again goes more to the merits than to ripeness. The Governor

argues that the constitution requires transmittal of a bill once

it has finally been passed, even if the Legislature has not yet

adjourned. If the Governor is correct in her interpretation of

the constitution, she suffered a constitutional injury.

C. Justiciability

¶16 The Legislature finally argues that this case presents

a nonjusticiable political question. Even if a case is within a

court’s subject matter jurisdiction and is timely brought by a

party with standing, a court should abstain from judicial review

of the merits if the issue is properly decided by one of the

“political branches” of government. Kromko v. Ariz. Bd. of

Regents, 216 Ariz. 190, 192-93 ¶¶ 11-12, 165 P.3d 168, 170-71

(2007).

7
¶17 The fact that a lawsuit involves a disagreement

between the political branches does not necessarily mean that it

presents a political question. See INS v. Chadha, 462 U.S. 919,

942-43 (1983) (noting that “the presence of constitutional

issues with significant political overtones does not

automatically invoke the political question doctrine”); Baker

v. Carr, 369 U.S. 186, 217 (1962) (observing that doctrine

concerns “political questions” rather than “political cases”).

A controversy only presents a nonjusticiable political question

if it involves “a textually demonstrable constitutional

commitment of the issue to a coordinate political department” or

lacks “judicially discoverable and manageable standards” for its

resolution. Kromko, 216 Ariz. at 192 ¶ 11, 165 P.3d at 170

(internal quotation marks omitted); see also Forty-Seventh

Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d at 1026.

¶18 The Legislature first argues that the Arizona

Constitution allows it to determine the timing of presentment of

bills to the Governor because Article 4, Part 2, Section 8

states that each house shall “determine its own rules of

procedure.” This provision, however, cannot limit or otherwise

qualify the directive in Article 4, Part 2, Section 12 that

“[e]very measure when finally passed shall be presented to the

Governor.” Section 12 does not by its terms commit to the

Legislature the decision on the timing of presentment of finally

8
passed bills.

¶19 The Legislature alternatively argues that there are no

judicially identifiable and manageable standards for determining

how promptly the Legislature must present bills to the Governor.

But this argument also presumes a particular resolution of the

merits. The Legislature contends that if it does not have

unfettered discretion to determine when to present bills to the

Governor, then the only alternative is for courts to assess

whether the Legislature has acted “reasonably” in delaying

presentment, and this inquiry is inherently subjective and

political.

¶20 We also reject this argument. Courts regularly assess

the reasonableness of actions in many contexts, ranging from

searches and seizures to the enforceability of contractual

terms. Perhaps even more importantly, resolving this case on

the merits does not necessarily imply that courts will need to

assess on a case-by-case basis whether the Legislature has

“reasonably” decided to delay presentment. The Governor’s

argument is that the constitution might instead simply require

presentment when bills are finally passed, with only such delay

as might reasonably be required for the Legislature to complete

the ministerial tasks of signing the bills and arranging for

formal transmittal.

¶21 The issue here is not whether the Legislature should

9
include particular items in a budget or enact particular

legislation. Such issues, like the Governor’s decision whether

to veto or approve a bill or the Legislature’s decision whether

to attempt an override, clearly are political questions. Forty-

Seventh Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d at 1026.

Instead, this case concerns the respective powers of the

Legislature and the Governor once the Legislature has finally

passed a bill.

¶22 Rather than concern a political question, this issue

is one of law and appropriate for judicial resolution. As we

noted in a case in which a legislature challenged a governor’s

actions in the lawmaking process: “To determine whether a branch

of state government has exceeded the powers granted by the

Arizona Constitution requires that we construe the language of

the constitution and declare what the constitution requires.

Such questions traditionally fall to the courts to resolve.”

Id. at ¶ 8.

III.

¶23 We accordingly turn to the merits. Arizona’s

constitution details the procedure for final passage of bills by

stating that every bill shall be read three times, except in

cases of emergency, that “[t]he vote on the final passage of any

bill . . . shall be taken by ayes and nays on roll call,” art.

4, pt. 2, § 12, and that “[a] majority of all members elected to

10
each house shall be necessary to pass any bill,” id. § 15. Once

these steps are completed, a bill is “finally passed” for

purposes of Section 12. See Cox v. Stults Eagle Drug Co., 42

Ariz. 1, 4-5, 21 P.2d 914, 915 (1933) (noting that “final

passage” occurs when each house has approved bill in the same

form, as “there is nothing further for either of them to do with

it to complete it”), overruled on other grounds by State ex rel.

La Prade v. Cox, 43 Ariz. 174, 30 P.2d 825 (1934).

¶24 After a bill is finally passed, both the constitution

and the legislative rules contemplate the completion of certain

ministerial tasks before it is presented to the Governor. The

presiding officer of each house must sign all passed bills in

open session. Ariz. Const. art. 4, pt. 2, § 15. The Senate has

designated its Secretary as the custodian of bills, Arizona

Senate Rule 3(B) (2009-10), and the House has provided that its

Chief Clerk shall be responsible for transmitting bills.

Arizona House of Representatives Rule 5 (2009-10). Thus, these

officers also have ministerial responsibilities in transmitting

finally passed bills to the Governor.

¶25 The Budget Bills were finally passed by the

Legislature on June 4, 2009, so the dispute among the parties

concerns solely the timing of their delivery to the Governor.

The constitution declares that “[e]very measure when finally

passed shall be presented to the governor for [her] approval or

11
disapproval.” Ariz. Const. art. 4, pt. 2, § 12. The Governor

argues that the constitution requires such bills to be delivered

to her with only such delay as may be reasonably necessary to

complete ministerial acts related to transmittal. The

Legislature first argued that it could delay presentment of

finally passed bills at its discretion or, alternatively, could

at least wait until the end of a legislative session. After

this Court announced its ruling, the Legislature filed a motion

for reconsideration arguing instead that it should be allowed to

delay presentment for some “reasonable time.”

¶26 The “Constitution should be construed so as to

ascertain and give effect to the intent and purpose of the

framers and the people who adopted it.” State ex rel. Morrison

v. Nabours, 79 Ariz. 240, 245, 286 P.2d 752, 755 (1955). We

give effect “to the purpose indicated, by a fair interpretation

of the language used, and unless the context suggests otherwise

words are to be given their natural, obvious and ordinary

meaning.” Id.

¶27 In ordinary usage, the phrase “when finally passed”

would be understood to mean upon final passage and not at

whatever later time the Legislature might deem appropriate.

Dictionary definitions of “when,” both contemporary and

historical, signal a point in time related to the occurrence of

a specific event. See, e.g., Webster’s II New College

12
Dictionary 1286 (3d ed. 2005) (defining “when” as “at which

time” or “[a]s soon as”); 2 A Standard Dictionary of the English

Language 2055 (N.Y., Funk & Wagnalls Co. 1895) (defining “when”

as “[a]t which or what time” or “[a]fter that; as soon as”).

Because nothing in the constitution indicates a different

meaning, we construe the use of “when” to require presentment

upon final passage of a bill. The use of “shall” further

underscores the mandatory nature of the Presentment Clause. See

Ariz. Const. art. 2, § 32 (“The provisions of th[e] Constitution

are mandatory, unless by express words they are declared to be

otherwise.”).1

1
At the 1910 Constitutional Convention, delegates offered
various proposals suggesting language about presentment. As the
concurrence notes, Proposition 6, Section 14 stated that bills
“when finally passed” would be filed with the secretary of
state, but this language was replaced by Substitute Proposition
6, which provided in Section 12 that such bills would be filed
with the Governor. The Records of the Arizona Constitutional
Convention of 1910, at 1047 (John S. Goff, ed. 1991)
[hereinafter “Records”]. After further amendments, Section 12
of Substitute Proposition 6 became the basis for Article 2, Part
2, Section 12. Id. at 584, 799. The concurrence concludes that
“[t]he amendment from transmission to the secretary of state to
transmission to the Governor demonstrates that the language
‘when finally passed’ simply means ‘after’ the bill’s passage.”
See ¶ 47, infra.

We interpret the history of Section 12 differently. That
the provision initially contemplated transmittal to the
secretary of state rather than the Governor suggests that the
Framers viewed post-passage transmittal as a ministerial act.
Nothing in the records of the Convention indicates that Section
12 was intended to give the legislature discretion to delay
presentment to the Governor. Finally, Section 12 must be
13
¶28 The constitution, as the Governor acknowledges, cannot

practically be interpreted to require presentment immediately

when a bill receives the required approval by each house. We

interpret the language directing that presentment “shall” occur

for bills “when finally passed” to allow such time as may

reasonably be necessary to complete ministerial acts such as the

signing of the bill by the presiding officer and other tasks to

effect the transmittal to the Governor. Cf. State ex rel.

Berger v. McCarthy, 113 Ariz. 161, 163, 548 P.2d 1158, 1160

(1976) (noting that statutory directive that action “shall” be

done contemplates performance within period which will promote

considered against the backdrop of the Framers’ approval of
Article 5, Section 7.

On the afternoon of November 30, 1910, the Convention
approved Substitute Proposition 33, which concerned the
executive branch and became the basis for Article 5. Records at
794, 1365. Section 7 of Substitute Proposition 33 provided that
“[e]very bill passed by the legislature, before it becomes a
law, shall be presented to the governor.” Id. at 1128. Later
that day, the Convention again considered Substitute Proposition
6, and Mr. Winsor successfully moved to amend Section 12 to
replace the language “sent to the governor” with the phrase
“presented to the Governor for his approval or rejection.” Id.
at 799.

The concurrence interprets Section 12 in a way that makes
it redundant to Article 5, Section 7, which itself requires
presentment after passage. Mr. Winsor, however, specifically
stated that his proposed change to Section 12 had independent
force: “This particular provision is for the disposition of the
bill after it is passed, and there is no other provision
covering this point anywhere in any proposition.” Records at
799.

14
prompt and orderly conduct of the proceedings). We are

confident that the Legislature can expeditiously transmit

finally passed bills to the Governor and that litigation will

not be necessary or appropriate regarding relatively short

delays in presentment to complete ministerial tasks and orderly

delivery.

¶29 We reject, however, the Legislature’s alternative

argument that it should be allowed to “reasonably” delay

presentment on a more open-ended basis, and that this Court

should “leave the determination of what is reasonable to the

Legislature’s discretion.” Such an amorphous standard would

vitiate the constitutional directive that presentment occur

“when” bills are finally passed.

¶30 Nor are we persuaded by the concurrence’s suggestion

that the Legislature should be allowed to delay presentment for

a “reasonable time” beyond that reasonably required for the

orderly transmittal of bills. Even under this test, the

Legislature could not delay presentment indefinitely, see ¶¶ 43,

54, infra, and the concurrence evidently concludes that the

Legislature unreasonably withheld the Budget Bills here, see ¶¶

43-44, infra. But the concurrence does not explain how courts

are to assess if a delay is reasonable. Because this standard

is not tethered to the time needed to complete orderly delivery,

it would undesirably require courts to make subjective, ad hoc

15
evaluations of the Legislature’s delay in transmitting bills.

¶31 The Legislature also argues that other state courts,

in construing presentment clauses that lack any specified time

requirement, have not interpreted their constitutions as

requiring prompt presentment of bills to the governor. See,

e.g., Cenarrusa v. Andrus, 582 P.2d 1082, 1087 (Idaho 1978).

Many state constitutions say nothing about the timing of

presentment other than indicating it must occur sometime after

passage. See, e.g., Ala. Const. art. 5, § 125 (“Every bill

which shall have passed both houses of the legislature, except

as otherwise provided in this Constitution, shall be presented

to the governor.”); Idaho Const. art. 4, § 10 (“Every bill

passed by the legislature shall, before it becomes a law, be

presented to the governor . . . .”).

¶32 Arizona’s constitution, in contrast, specifies that

measures shall be presented “when finally passed.” Thus, we are

not persuaded by the out-of-state cases cited by the

Legislature. We also note that some state courts have concluded

that legislatures do not have unlimited discretion to withhold

bills, although these courts were also interpreting

constitutional language that differs from Arizona’s. See

Campaign for Fiscal Equity, 661 N.E.2d at 1373 (construing New

York’s constitution as implicitly requiring presentment within a

reasonable time after passage); State ex rel. Ohio Gen. Assembly

16
v. Brunner, 872 N.E.2d 912, 924 (Ohio 2007) (stating that Ohio

Constitution, by use of term forthwith, requires presentment

promptly).

¶33 The Legislature also contends that requiring

presentment upon final passage would be inconsistent with

legislative practices dating from early statehood. Long-

established practices, accepted by other branches of government,

may be relevant in construing constitutional provisions. See,

e.g., Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803)

(propriety of requiring justices to sit as circuit judges

established by “practice and acquiescence . . . commencing with

the organization of the judicial system”). In this regard, the

Legislature argues that its own rules, both as adopted by the

First Legislature and currently, contemplate that the

Legislature may reconsider bills after final passage, and that

past legislatures have sometimes held bills for days or even

weeks.

¶34 Neither the current rules nor the rules of the First

Legislature specifically address the reconsideration of finally

passed bills. Instead, the current rules more generally provide

that each house may reconsider its vote on any matter if an

appropriate motion is filed no later than the next day the

legislature is in session. See Arizona Senate Rule 13; Arizona

House of Representatives Rule 24. The rules of the First

17
Legislature are not materially different in this regard. See

Arizona Senate Rule 16 (1912); Arizona House of Representatives

Rule 48 (1912). The Legislature also notes that each house can

suspend its rules, which conceivably would allow a motion for

reconsideration to be filed later than the day after the vote.

¶35 This case does not present and we do not address the

effect of a motion for reconsideration on the Legislature’s

constitutional duty of presentment to the Governor. We reject,

however, the suggestion that the Legislature’s power to

prospectively suspend or amend its internal rules somehow

establishes that, in the absence of such a motion, the

Legislature may delay indefinitely, or at least to the end of

the legislative session, the presentment of finally passed

bills.

¶36 The Legislature also notes that, over the last

eighteen years, some twenty-five bills were delayed in their

transmittal from six to forty-nine days. The basis for these

delays, however, is not clear and it does not appear that any of

them were challenged.2 The Legislature in fact appears to have

2
The Legislature also identifies two bills that were finally
passed but not transmitted to the Governor. Senate Bill 1007
was passed during the second regular session of the Thirty-Eight
Legislature. Journal of the House of Representatives, 38th
Leg., 2d Reg. Sess. 1127 (1988). Although not transmitted to
the Governor as Senate Bill 1007, the text of the bill, as
amended, was subsumed within Senate Bill 1261, which was signed
into law by the Governor on July 1, 1988. See 1988 Ariz. Sess.
18
almost always presented bills to the Governor promptly upon

their final passage. The Governor notes, and the Legislature

does not dispute, that all 315 bills finally passed during the

Second Regular Session of the Forty-Eighth Legislature were

presented to the Governor within two days. Similarly, a partial

review of bills passed in the first two legislatures suggests

that each house regularly transmitted bills to the Governor upon

receipt of a message from the other house indicating final

passage. The corresponding legislature’s journal entries state

something to the effect of: “The President announced that

Senate Bill No. 1 had been passed by the Senate and the House of

Representatives and the Secretary was instructed to transmit

same to the Governor.”

¶37 The Legislature has not demonstrated any tradition of

its withholding finally passed bills – or any acceptance of that

practice by the other branches – sufficient to justify departing

from the ordinary meaning of the constitution. At most, the

Legislature has identified isolated instances when the

Laws, ch. 271, §§ 25, 26, 35, 44 (2d Reg. Sess.); S.B. 1007,
38th Leg., 2d Reg. Sess. (Ariz. 1988) (Senate engrossed
version). House Bill 2408 passed during the first regular
session of the Forty-Second Legislature. Journal of the House
of Representatives, 42d Leg., 1st Reg. Sess. 695 (1995). The
bill was held by the House after passage because the bill was
identical to Senate Bill 1199, which was signed by the Governor
on April 17, 1995. See id.; 1995 Ariz. Sess. Laws, ch. 136, § 1
(1st Reg. Sess.); H.B. 2408, 42d Leg., 1st Reg. Sess. (Ariz.
1995) (Senate engrossed version).
19
presentment of finally passed bills was delayed for unexplained

reasons and apparently without objection from the Governor.

¶38 Finally, in its motion for reconsideration, the

Legislature contends that “practical difficulties” will result

if it must promptly present finally passed bills to the

Governor. Delay in presentment, the Legislature argues, will

allow it the opportunity to “fix” legislative mistakes or

otherwise reconsider bills. We find this argument unpersuasive.

The constitution outlines a process to protect against the

precipitous enactment of legislation – the Legislature itself

determines when to enact bills, which are subject to three reads

in each house and a roll call final vote. Ariz. Const. art. 4,

pt. 2, § 12. If the Legislature concludes that it has

mistakenly enacted a bill, members can urge the Governor to veto

the bill or they can enact a corrective repeal or amendment. As

noted above, this case does not involve a motion seeking

reconsideration of a house’s approval of a bill, and we do not

address the effect of such a motion on the duty of presentment.

¶39 Because the constitution directs that bills shall be

presented to the Governor “when finally passed,” we hold that

the Legislature must present such bills to the Governor with no

more delay than is reasonably necessary to complete any

ministerial tasks and otherwise effect their orderly

transmittal. This standard was not met here.

20
 IV.

¶40 Although we agree with the Governor that the

Legislature cannot delay its presentment of finally passed bills

to avoid her constitutional veto power, we declined in this case

to grant the requested relief. The Governor sought an order

compelling the Legislature to deliver the Budget Bills to her by

5:00 p.m. on June 23.

¶41 Mandamus is based on equitable principles. Sines v.

Holden, 89 Ariz. 207, 209, 360 P.2d 218, 220 (1961). Thus,

“even in a case where an absolute legal right is shown,” we

retain discretion to determine what relief, if any, should be

granted. Id. For several reasons, we declined to grant the

requested relief here.

¶42 This case involves a good-faith dispute between the

political branches of government about their respective roles in

Arizona’s lawmaking process. Had the Legislature anticipated

our decision it might have waited to finally pass the bills

until nearer the end of the session. Moreover, the Legislature

committed to this Court to deliver the Budget Bills to the

Governor by June 30, 2009. Because these bills contained

appropriations, the Governor was not faced with the prospect of

signing or vetoing each of them in toto. See Ariz. Const. art.

5, § 7. Instead, she had the power – and could have announced

her intent before the bills were presented – to use her line-

21
item veto authority to approve or reject particular parts of

each bill. In these circumstances, granting the Governor’s

requested order would have advanced the delivery of the Budget

Bills by merely a week and unnecessarily involved the Court

further in this dispute among the political branches.

V.

¶43 We conclude that the presentment of the Budget Bills

did not occur within the time mandated by the Arizona

Constitution, but under the unique circumstances presented, we

decline to grant the relief the Governor requested.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

B E R C H, Chief Justice, concurring in the result

¶44 The Court concludes that the Arizona Constitution’s

Presentment Clause requires the immediate presentment of bills

22
to the Governor, allowing time only “to complete any ministerial

tasks and otherwise effect their orderly transmittal.” Op.

¶ 38; see art. 4, pt. 2, § 12 (presentment clause). Because I

conclude that the constitution requires only the transmittal of

bills within a reasonable time, I do not join in that portion of

the majority opinion.

¶45 The Governor argues that the phrase “when finally

passed” requires immediate transmittal; the Legislature

maintains that it may transmit bills at its leisure. Both

sides, in my opinion, overstate the case.

¶46 The majority emphasizes the Presentment Clause phrase

“when finally passed” in concluding that transmittal must occur

immediately after completion of ministerial tasks. The clause

itself does not specify the timing of presentment, but the

context in which the phrase “when finally passed” is used

suggests that it simply means “once” or “after.” See Kilpatrick

v. Superior Court, 105 Ariz. 413, 419, 466 P.2d 18, 24 (1970)

(requiring courts to construe the constitution as a whole and

read its various provisions together). Section 12 provides in

full as follows:

Every bill shall be read by sections on three
different days, unless in case of emergency, two-
thirds of either House deem it expedient to dispense
with this rule. The vote on the final passage of any
bill or joint resolution shall be taken by ayes and
nays on roll call. Every measure when finally passed

23
 shall be presented to the Governor for his approval or
disapproval.

The section thus sets forth the general procedure for enacting a

bill into law: The bill must be read three times, unless the

reading is waived, and then passed by a roll call vote in each

chamber. The “finally passed” bill must then be presented to

the Governor, who may approve it or not. The section does not

say when the presentment must occur, and it is plausible to

conclude, as the majority has, that presentment must occur

immediately. But given that the Framers did not explicitly

require “prompt” or “immediate” presentation, it is more likely

that the Framers intended presentment to occur within a

reasonable time, but not necessarily immediately after final

passage.

¶47 Several pieces of historical evidence support the

conclusion that transmittal within a reasonable time is the

appropriate standard. Sources contemporaneous with the drafting

of Arizona’s Constitution show that the Framers likely

understood the word “when” to be synonymous with “if” or “on the

condition that.” See Texas & P. Ry. Co. v. Beaird, 169 S.W.

1050, 1051 (Tex. Civ. App. 1914) (“‘[W]hen presented[]’ . . . is

equivalent to ‘in case it is presented,’ or ‘on condition that

it be presented.’”); see also Mendenhall v. State, 72 So. 202,

205 (Fla. 1916) (“The word ‘when’ has a conditional concept in

24
it, and as here used means ‘if.’”); Allen v. Powell, 115 N.E.

96, 99 (Ind. App. 1917) (“[When] is frequently used in the sense

of ‘provided,’ ‘in case of,’ ‘and if,’ or ‘if.’” (citation

omitted)); Webster’s Revised Unabridged Dictionary 1644 (Noah

Porter ed., 1913) (noting meaning as “at what time; at, during,

or after the time that”). The Framers’ understanding of “when”

as encompassing “after” and “if,” and their failure to include a

term such as “forthwith,” “promptly,” or “immediately,” suggests

that presentment was to occur within a reasonable time after

final passage of a bill. No language in the constitutional

provision mandates immediate transmittal.

¶48 When a constitutional clause requires interpretation,

we often look to the records of the constitutional convention

for guidance. E.g., Cain v. Horne, 220 Ariz. 77, 82, ¶ 20, 202

P.3d 1178, 1183 (2009). Those records show that the provision

compelling transmittal of a bill “when finally passed”

originally required filing of the bill in the office of the

secretary of state, presumably after it not only had passed each

chamber of the Legislature, but also had been signed by the

Governor or vetoed and overridden by the Legislature. See The

Records of the Arizona Constitutional Convention of 1910, at

1040 (John S. Goff, ed. 1991) [hereinafter “Records”]

(Proposition 6 § 14 initially provided that “[e]very measure

when finally passed shall be filed in the office of the

25
secretary of state.”); id. at 1047 (replacing “secretary of

state” with “office of the Governor”); id. at 583 (discussing

the change from secretary of state to Governor). As so used,

the phrase “when finally passed” clearly did not mean

immediately after the roll call vote of ayes and nays in each

chamber. The amendment from transmission to the secretary of

state to transmission to the Governor demonstrates that the

language “when finally passed” simply means “after” the bill’s

passage.3 The Framers never discussed and did not intend to add

an immediate transmittal requirement. See id. at 583. The

discussion focused on who should receive the bill, not when it

3
The records contain the following discussion, in which the
framers also appear to use the terms “when” and “after”
interchangeably:
Mr. Franklin: . . . After a measure is passed by the
legislature and signed by the governor, it is filed
with the office of the secretary.
Mr. Webb: . . . [A] bill after final passage is
submitted to the governor for his approval or
disapproval . . . .
. . .
Mr. Webb: . . . After final passage [a bill] is filed
with the governor, and it is never returned and he
files it with the secretary of state.
Mr. Winsor: . . . [T]he procedure is that after a
bill is finally passed by the legislature it is filed
with the governor for his action. . . .
Mr. Franklin: . . . When the bill is passed by the
legislature, it is submitted to the governor [and if
it becomes law] it is then filed in the office of the
secretary of state . . . .
Id. (emphasis added) (using the terms “when” and “after”
interchangeably); see also id. at 794, 799 (mentioning that the
legislative presentment clause was included to indicate what
happens to the bill “after passage”).
26
should be transmitted. Nothing suggests that the provision was

included to prevent delay in presentment. Id. at 853.

¶49 The conclusion that a reasonable presentment time was

anticipated is further supported by the rules adopted by the

First Legislature, several members of which served as delegates

to the constitutional convention and therefore presumably

understood the Framers’ intent.4 Each chamber of the Legislature

adopted a rule based on Article 4, Part 2, Section 12. Compare

First Legislature of the State of Arizona, Rules of the House of

Representatives, 15 (1912) (Rule 59) (noting constitutional

basis for rule) [hereinafter First House Rules], and State of

Arizona, Rules of the First State Senate 21 (1912) (Rule 21(4))

[hereinafter First Senate Rules], with Ariz. Const. art. 4, pt.

2, § 12. Those rules allowed timely reconsideration of bills on

which members had already voted. First House Rules 13 (Rule

48); First Senate Rules 17-18 (Rule 16). These reconsideration

rules comport with the historical understanding that presentment

need not occur immediately; a chamber may take a short but

reasonable time after passing a bill to reconsider the wisdom of

that act.

4
Several convention delegates served in the legislature.
Records at 1387-98. The first Speaker of the House and the
first Senate President were each convention delegates, and each
chaired the rules committee in his respective body. Id. at
1387, 1389; State of Arizona, Rules of the First State Senate,
2, 6 (1912); Journal of the First Legislature, Arizona House of
Representatives, 17.
27
¶50 Every subsequent legislature has also permitted

reconsideration of bills. For example, the Third Legislature

entertained a motion for reconsideration on a bill that had

already passed both houses. Third Legislature of the State of

Arizona, Journal of the Senate 336, 338 (1917) (passing H.B. 4

without amendment, ordering its transmittal to the House, and

then passing a motion for reconsideration, amending the bill,

and transmitting the amended bill to the House), in State of

Arizona, Journals of the Arizona Legislature (1917). This

historical evidence suggests that the Presentment Clause does

not anticipate immediate transmittal because it would be

inconsistent to require immediate presentment, yet allow the

legislature discretion to reconsider a bill on which it had

already affirmatively voted.

¶51 The majority suggests that the absence of delay

between the time the First Legislature passed bills and their

transmittal to the Governor suggests that that body contemplated

an immediate transmittal requirement. Perhaps. On the other

hand, it may simply show that the First Legislature had no

reason to delay transmission of those bills. The Legislature

may choose to promptly present bills, even if doing so is not

constitutionally compelled. In contrast to this course of

practice, the Legislature presented evidence of twenty-five

bills on which presentment was delayed, in most cases from three

28
to four weeks. Although the majority dismisses this evidence

because the Legislature did not show why the bills were delayed,

see Op. ¶ 35, under the majority’s analysis, if immediate

presentment is constitutionally required, the motivation for the

delay should not matter. If the Legislature lacks discretion to

delay for any purpose, then any presentment that does not

immediately follow prompt completion of ministerial tasks

violates the constitution.

¶52 Because we generally respect our coordinate branches’

actions as constitutional unless a clear violation exists,

Earhart v. Frohmiller, 65 Ariz. 221, 224-25, 178 P.2d 436, 438

(1947), we should not lightly find unconstitutional the actions

of previous Legislatures and the acquiescence of previous

Governors in those actions. On balance, the evidence of past

Legislatures’ delay in presenting bills supports the current

Legislature’s position that it has some constrained discretion

to determine the timing of presentment.

¶53 Additionally, although the language of the

constitutional presentment clauses across the nation vary, no

court analyzing a provision with language similar to Arizona’s

provision has found immediate transmission required. See

Cenarrusa v. Andrus, 582 P.2d 1082, 1087 (Idaho 1978) (“There is

no provision in our Constitution governing the time within which

the legislature must present bills to the governor, and it is

29
not for this Court to impose any limitation as to time.”);

Gilbert v. Gladden, 432 A.2d 1351, 1355 (N.J. 1981) (A general

presentment requirement does not “limit[] the time within which

presentment may be accomplished.”); Campaign for Fiscal Equity,

Inc. v. Marino, 661 N.E.2d 1372, 1373 (N.Y. 1995) (“[A] bill

which has passed both houses of the Legislature [must] be

presented to the Governor for enactment into law or vetoing

within a reasonable time after its passage.”); Zimmerman v.

State, 348 N.Y.S.2d 727, 733 (Ct. Cl. 1973) (“When a bill is to

be presented is a determination to be made by the Legislature.”

(citing Opinion of the Justices, 213 A.2d 415 (N.H. 1965));

State v. Heston, 71 S.E.2d 481, 492 (W. Va. 1952) (The “section

which requires every bill passed by the Legislature to be

presented to the Governor before it becomes a law, prescribes no

time within which it must be so presented.”) The Court’s

opinion makes Arizona an outlier on this issue.

¶54 Finally, logic and practice support allowing a

reasonable time for transmittal. The Governor has only five

days to sign a bill while the legislature is in session or the

bill will become law without her signature. Ariz. Const. art.

5, § 7. Some bills are very long and complex. Governors have a

lot to do. Sometimes they are not available for short periods.

As a session nears its conclusion, many bills may be passed

within a short time. In such cases, a Governor might benefit

30
from the courtesy of advance notice and delayed transmission of

a bill. The rule the majority adopts does not allow for such

cooperation and professional courtesy. Under the rule announced

today, the legislature lacks discretion to delay presentment

beyond the time needed to complete ministerial tasks, despite a

Governor’s request for additional time or acquiescence in the

delay.5

¶55 The majority criticizes allowing presentment within a

reasonable time after final passage as a test lacking certainty.

Op. ¶ 30. Yet as the majority itself recognizes, “[c]ourts

regularly assess the reasonableness of actions in many

contexts.” Id. ¶ 20. We can assess reasonableness in this

context as well. The reasonableness of any delay is tethered to

the time of final passage by the constitutional requirement of

presentment.

¶56 As with most standards, the contours for testing what

constitutes a reasonable time would naturally develop as cases

presenting the issue arose. Because the Court does not adopt

this standard and because reasonableness must be determined in

light of the context in which the question arises, there is

little utility in engaging in the academic exercise of

5
I recognize that each chamber maintains control over when
voting occurs and thus may, as a practical matter, inject delay
into the process.
31
surmising, in the absence of context, how much time would be

presumptively reasonable.

¶57 For the reasons expressed, I conclude that the

Presentment Clause requires that bills that pass both houses be

presented to the Governor within a reasonable time, but does not

require immediate presentment.

__________________________________
Rebecca White Berch, Chief Justice

32