Arizona Together v. Brewer

SUPREME COURT OF ARIZONA
EN BANC

ARIZONA TOGETHER, an ) Arizona Supreme Court
unincorporated association; ) No. CV-06-0277-AP/EL
KAITLIN MEADOWS; ALBERT LANNON; )
AMALIA ANTONIOLI; FRANK MONTOYA; ) Maricopa County
AL BREZNEY; MAXINE PIATT; PAUL ) Superior Court
KNOBBE; TERESA HEWITT; GLEN ) No. CV 2006-010505
CROMER; and REBECCA MILLER, )
)
Plaintiffs-Appellants, )
) O P I N I O N
v. )
)
JANICE K. BREWER, in her )
official capacity as Secretary )
of State for the State of )
Arizona, )
)
Defendant-Appellee, )
and )
)
PROTECT MARRIAGE ARIZONA, an )
unincorporated association, )
)
Real Party in Interest. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge

AFFIRMED
________________________________________________________________

GAMMAGE & BURNHAM PLC Phoenix
By Lisa T. Hauser
Mark H. Wagner

And

PERKINS COIE BROWN & BAIN PA Phoenix
By Charles A. Blanchard
Michael T. Liburdi
Craig A. Morgan
Attorneys for Arizona Together, Kaitlin Meadows, Albert
Lannon, Amalia Antonioli, Frank Montoya, Al Brezney, Maxine
Piatt, Paul Knobbe, Teresa Hewitt, Glen Cromer, and Rebecca
Miller

TERRI SKLADANY, ACTING ARIZONA ATTORNEY GENERAL1 Phoenix
By Diana L. Varela, Assistant Attorney General
Emma Lehner Mamaluy, Assistant Attorney General
Attorneys for Janice K. Brewer, Secretary of State for the
State of Arizona

CENTER FOR ARIZONA POLICY Scottsdale
By Peter A. Gentala
Attorney for Protect Marriage Arizona

And

ALLIANCE DEFENSE FUND LAW CENTER Scottsdale
By Benjamin W. Bull
Glen Lavy
Dale Schowengerdt
Attorneys for Protect Marriage Arizona

INSTITUTE FOR JUSTICE Phoenix
By Timothy D. Keller
Jennifer M. Perkins
Attorneys for Amicus Curiae Institute for Justice Arizona
Chapter

COPPERSMITH GORDON SCHERMER OWENS & NELSON PLC Phoenix
By Andrew S. Gordon
Attorney for Amici Curiae Peter W. Likins and Phil Gordon
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 The question presented is whether Proposition 107, a

constitutional amendment proposed by voter initiative, complies

with the separate amendment rule of Article 21, Section 1 of the

1
Attorney General Goddard recused himself from this matter.
Accordingly, Terri Skladany, the Chief Assistant Attorney
General, serves as Acting Attorney General.

2
Arizona Constitution. Proposition 107 would amend the

constitution by adding a new Article 30 defining “marriage” and

prohibiting the state and its political subdivisions from

creating or recognizing a legal status for unmarried persons

similar to that of marriage.2 The appellants, opponents of

Proposition 107, brought this action pursuant to Arizona Revised

Statutes (A.R.S.) section 19-122.C (2002) to enjoin the

Secretary of State from placing the measure on the ballot in the

2006 general election. Appellant Arizona Together argues that

Proposition 107 does not constitute a single amendment, but

rather is a composite of three unrelated provisions. In

particular, Arizona Together asserts that, if enacted,

Proposition 107 not only would define marriage but also could

(1) prohibit same sex marriages, (2) prohibit civil unions and

domestic partnerships, and (3) prohibit the state and its

2
Proposition 107 provides:

TO PRESERVE AND PROTECT MARRIAGE IN THIS STATE, ONLY A
UNION BETWEEN ONE MAN AND ONE WOMAN SHALL BE VALID OR
RECOGNIZED AS A MARRIAGE BY THIS STATE OR ITS
POLITICAL SUBDIVISIONS AND NO LEGAL STATUS FOR
UNMARRIED PERSONS SHALL BE CREATED OR RECOGNIZED BY
THIS STATE OR ITS POLITICAL SUBDIVISIONS THAT IS
SIMILAR TO THAT OF MARRIAGE.

Ariz. Sec’y of State, 2006 General Election Ballot Measures,
Proposition 107, § 1 (2006), available at
http://www.azsos.gov/election/2006/general/ballotmeasures.htm
(follow ballot number 107 full text hyperlink) [hereinafter
Proposition 107].

3
political subdivisions from conferring benefits and rights on

domestic partners. After a hearing, the superior court

concluded that Proposition 107 constitutes a single amendment in

light of the test established by this Court in Kerby v. Luhrs,

44 Ariz. 208, 36 P.2d 549 (1934). On August 31, 2006, we

entered an order affirming the judgment of the superior court,

with this opinion to follow.3

I.

¶2 Whether a voter initiative complies with the separate

amendment rule of Article 21, Section 1 presents a question of

law, which we review de novo. See Clean Elections Inst., Inc.

v. Brewer, 209 Ariz. 241, 243 ¶ 2, 99 P.3d 570, 572 (2004).

A.

¶3 The Arizona Constitution requires that “[i]f more than

one proposed amendment shall be submitted at any election, such

proposed amendments shall be submitted in such manner that the

electors may vote for or against such proposed amendments

separately.” Ariz. Const. art. 21, § 1. “The clear import of

this provision is that voters must be allowed to express their

separate opinion as to each proposed constitutional amendment.”

Clean Elections, 209 Ariz. at 244 ¶ 7, 99 P.3d at 573. The

3
On November 7, 2006, the voters rejected Proposition 107.
Ariz. Sec’y of State, State of Arizona Official Canvass at 15
(Dec. 4, 2006), available at
http://www.azsos.gov/election/2006/General/Canvass2006GE.pdf.

4
separate amendment rule serves a gatekeeping function by

protecting the integrity of the constitutional amendment process

from the “pernicious practice of ‘log-rolling.’” Kerby, 44

Ariz. at 214, 36 P.2d at 551. As we have often noted, our

constitution requires that “[c]hanges suggested thereto should

represent the free and mature judgment of the electors, so

submitted that they cannot be constrained to adopt measures of

which in reality they disapprove, in order to secure the

enactment of others they earnestly desire.” Id. at 221, 36 P.2d

at 554; see also Clean Elections, 209 Ariz. at 244 ¶ 9, 99 P.3d

at 573; Korte v. Bayless, 199 Ariz. 173, 177 ¶ 12, 16 P.3d 200,

204 (2001); Slayton v. Shumway, 166 Ariz. 87, 90, 800 P.2d 590,

593 (1990); Tilson v. Mofford, 153 Ariz. 468, 471, 737 P.2d

1367, 1370 (1987); State ex rel. Jones v. Lockhart, 76 Ariz.

390, 396, 265 P.2d 447, 451 (1953).

¶4 This Court is obligated to ensure that voters receive

an opportunity to cast separate votes for separate amendments.

At the same time, we must not apply the separate amendment rule

in a manner that unduly encumbers the right of the people to

amend the constitution. Accordingly, we have consistently

sought to strike a balance between allowing voters a chance to

express separate opinions on proposed amendments and ensuring

that “complex solutions to modern legislative problems” are not

5
precluded by “an unduly narrow reading” of the separate

amendment rule. Korte, 199 Ariz. at 177 ¶ 13, 16 P.3d at 204.

¶5 We first enunciated the test to maintain this balance

in Kerby:

If the different changes contained in the
proposed amendment all cover matters necessary to be
dealt with in some manner, in order that the
Constitution, as amended, shall constitute a
consistent and workable whole on the general topic
embraced in that part which is amended, and if,
logically speaking, they should stand or fall as a
whole, then there is but one amendment submitted.
But, if any one of the propositions, although not
directly contradicting the others, does not refer to
such matters, or if it is not such that the voter
supporting it would reasonably be expected to support
the principle of the others, then there are in reality
two or more amendments to be submitted, and the
proposed amendment falls within the constitutional
prohibition [of Article 21, Section 1].

44 Ariz. at 221, 36 P.2d at 554. Our subsequent application of

the separate amendment rule has distilled the general language

in Kerby. We now ask whether the provisions of a proposed

amendment “are sufficiently related to a common purpose or

principle that the proposal can be said to ‘constitute a

consistent and workable whole on the general topic embraced,’

that, ‘logically speaking, . . . should stand or fall as a

whole.’” Korte, 199 Ariz. at 177 ¶ 10, 16 P.3d at 204 (footnote

omitted) (quoting Kerby, 44 Ariz. at 221, 36 P.2d at 554).

¶6 This “common purpose or principle” test requires us to

analyze two components. First, the proposed amendment’s

6
provisions must be topically related: All the provisions must

embrace the same “general topic.” See Kerby, 44 Ariz. at 221,

36 P.2d at 554. Second, the provisions must be sufficiently

interrelated so as to form a consistent and workable proposition

that “logically speaking . . . should stand or fall as a whole.”

Id. If the provisions of a proposal exhibit both topicality and

interrelatedness, we can conclude that the provisions have a

common purpose or principle and therefore comply with the

mandate of Article 21, Section 1.

B.

¶7 The parties agree that Proposition 107, despite being

drafted as a single sentence, can be divided into two

provisions. The first requires that “only a union between one

man and one woman shall be valid or recognized as a marriage by

this state or its political subdivisions.” Proposition 107, §

1. The second provides that “no legal status for unmarried

persons shall be created or recognized by this state or its

political subdivisions that is similar to that of marriage.”

Id. The initial question, then, is whether both provisions

embrace the same general topic.

¶8 We conclude that the provisions are topically related.

The text of Proposition 107 identifies its purpose as being to

“preserve and protect marriage in this state.” Id. The first

provision adopts an exclusive definition of marriage, while the

7
second emphasizes that the state cannot circumvent the

definition by conferring any other marriage-like legal status

upon unmarried individuals. Consequently, both provisions of

Proposition 107 embrace the same general topic.4

¶9 This conclusion does not end our inquiry. The

separate amendment requirement is not satisfied by every

“initiative that demonstrates a topical relationship among its

various provisions.” Korte, 199 Ariz. at 176 ¶ 10, 16 P.3d at

203. In Kerby, for instance, three separate provisions of a

proposed amendment embraced the “broader general subject . . .

of taxation.” 44 Ariz. at 222, 36 P.2d at 554. The proposition

as a whole nevertheless lacked sufficient interrelatedness and

therefore failed to satisfy the separate amendment rule. See

id. at 222, 36 P.2d at 554-55. Accordingly, we must also

determine whether the provisions here are sufficiently

interrelated.

C.

4
Arizona Together argues that the provisions of the proposed
amendment do not embrace the same general topic because
inclusion of the phrase “legal status” in Proposition 107 will
prohibit the state and its political subdivisions from
conferring benefits and rights on domestic partners, while
Protect Marriage Arizona asserts the proposition will not have
that effect. We need not determine conclusively the
hypothetical substantive impact of the proposition, which the
voters ultimately rejected at the polls. We do note that when
alternative constructions of proposed constitutional amendments
are available, courts will generally adopt a construction that
avoids constitutional difficulty under the separate amendment
rule. See Slayton, 166 Ariz. at 92, 800 P.2d at 595.

8
 1.

¶10 In assessing whether the provisions of a proposed

amendment are sufficiently interrelated, we do not apply “a

strict rule that all components of a provision be logically

dependent on one another.” Korte, 199 Ariz. at 176 ¶ 10, 16

P.3d at 203. Instead, we measure the provisions against

objective factors, such as

whether various provisions are facially related,
whether all the matters addressed by an initiative
concern a single section of the constitution, whether
the voters or the legislature historically has treated
the matters addressed as one subject, and whether the
various provisions are qualitatively similar in their
effect on either procedural or substantive law.

Id. at 177 ¶ 11, 16 P.3d at 204 (citations omitted); see also

Clean Elections, 209 Ariz. at 244-45 ¶ 12, 99 P.3d at 573-74

(listing factors); Taxpayer Prot. Alliance v. Arizonans Against

Unfair Tax Schemes, 199 Ariz. 180, 181 ¶ 4, 16 P.3d 207, 208

(2001) (same). On balance, we find sufficient interrelatedness

between the provisions that, in conjunction with their

topicality, allows us to conclude that they are sufficiently

related to a common purpose or principle to satisfy the separate

amendment rule.

¶11 We have already noted that the language of both

provisions addresses the definition of “marriage” and the

purpose of both provisions is to preserve and protect marriage.

9
Accordingly, the text of the provisions of Proposition 107

demonstrates a facial relationship.

¶12 In addition, the two provisions of Proposition 107, as

proposed, involve a single section of the constitution. No

section of the Arizona Constitution presently purports to define

marriage.5 Therefore, Proposition 107 would operate as the only

provision of the constitution addressing this subject. Because

both provisions of Proposition 107 concern a single proposed

article and would therefore operate in tandem as a unified

section of the constitution, this factor helps to demonstrate

the interrelated nature of the provisions of Proposition 107.

¶13 Because the Arizona Constitution has never defined

marriage, the historical treatment of these provisions offers

little guidance. Arizona Together, however, asks us to look to

two other sources. It first asks us to consider the treatment

of marriage and domestic partnerships afforded by the

legislatures and voters of various sister states. In addition,

Arizona Together encourages us to regard the Arizona

Legislature’s treatment of marriage and domestic partnerships in

separate parts of the Arizona Revised Statutes as evidence that

5
Although the second paragraph of Article 20 of the Arizona
Constitution provides that “[p]olygamous or plural marriages, or
polygamous cohabitation, are forever prohibited within this
State,” this provision does not itself define marriage and does
not affect our analysis of whether Proposition 107 satisfies the
separate amendment rule.

10
Arizona has historically treated marriage and domestic

partnerships separately. Neither argument persuades us that

Arizona has historically treated the subjects of these two

provisions differently as a constitutional matter.

¶14 First, even if we were to rely on the opinions of

voters and legislatures in other states, the argument Arizona

Together submits actually demonstrates that some other states

have treated marriage and domestic partnerships as one subject.

See, e.g., Cal. Fam. Code § 297.5(a) (West Supp. 2007) (giving

registered domestic partners the “same rights, protections, and

benefits . . . as are granted to and imposed upon spouses”

(emphasis added)); Vt. Stat. Ann. tit. 15, § 1204(a) (2002)

(“Parties to a civil union shall have all the same benefits,

protections and responsibilities under law . . . as are granted

to spouses in a marriage.” (emphasis added)). Moreover, our

inquiry in a separate amendment challenge must focus not upon

the historical treatment of the relevant subject in the laws of

other states, but rather upon the historical treatment of the

subject in the Arizona Constitution. See Lockhart, 76 Ariz. at

397, 265 P.2d at 451-52 (discussing the voters’ historical

treatment of constitutional provisions concerning the

legislature).

¶15 Our focus upon the treatment afforded by the Arizona

Constitution leads us to conclude that Arizona Together’s

11
reliance on various Arizona statutes concerning marriage and

domestic partner rights does not advance our inquiry. Merely

showing that the legislature has addressed an issue in various

places in Arizona’s statutory scheme fails to demonstrate that

the specific concerns addressed by each statute would not

constitute a “single subject in constitutional amendments.” See

id. at 397, 265 P.2d at 452 (emphasis added). Because Arizona

has not historically treated the definition of marriage in the

state constitution, we find little guidance from this factor.

¶16 We do find guidance, however, from the factor that

instructs us to consider whether provisions are qualitatively

similar in their effect on the law. Cf. Slayton, 166 Ariz. at

92, 800 P.2d at 595 (concluding that proposed amendment

containing eleven provisions, all of which were deemed to be

both “procedural” and relating to “victims’ rights,” satisfied

the separate amendment rule). In Slayton, we considered a

separate amendment challenge to a proposition popularly known as

the “Victims’ Rights Initiative.” Id. at 88, 800 P.2d at 591.

The initiative contained eleven subsections, the first ten of

which enumerated “certain procedural protections to, and rights

of, those who are victims of crime,” and were in uncontested

compliance with the separate amendment rule. Id. The

challengers, however, argued that the eleventh subsection was

unlike the other ten because it conferred judicial rulemaking

12
authority upon the legislature, rather than the Court, and thus

violated separation of powers principles. Id. at 88-89, 800

P.2d at 591-92. We rejected the challengers’ argument and

instead adopted the interpretation advanced by the initiative’s

proponents, and thus narrowly construed the eleventh subsection

“to mean the legislature will have the power to amend or repeal

rules [only] for the limited purpose of protecting victims’

rights.” In light of this construction, “subsection 11 is more

than ‘reasonably related’ to the rest of the proposition; it

depends on the rest of the proposition for its meaning and

effect, and it would mean little or nothing if enacted in

isolation.” Id. at 92, 800 P.2d at 595. Hence, the separate

amendment rule was not violated because the eleventh subsection

dealt “only with procedural rules pertaining to victims and not

with the substantive general subject of the rulemaking power.”

Id. Consequently, all eleven subsections were “qualitatively

similar in their effect on . . . procedural . . . law.” See

Korte, 199 Ariz. at 177 ¶ 11, 16 P.3d at 204.

¶17 In this case, both provisions affect substantive law

in the same way; both pertain to the law surrounding the

definition of marriage. The first provision sets forth a

definitional framework of marriage, which the second provision

makes exclusive in terms of “legal status.” The provisions of

the proposed amendment, while not logically dependent on one

13
another, clearly share a logical relationship and comprise a

unified pronouncement on the state’s constitutional

understanding of marriage. Because both provisions affect

substantive law, pertain to the subject of the definition of

marriage, and derive meaning and effect from the mandates

contained in the other provision, we conclude that they are

qualitatively similar in their effect on the substantive law of

marriage. Cf. Slayton, 166 Ariz. at 92, 800 P.2d at 595. As a

result, this factor firmly encourages a finding that the two

provisions of Proposition 107 are sufficiently interrelated.

2.

¶18 Since our decision in Kerby, we have included a

“reasonable voter” analysis as one factor to consider in

determining whether a common purpose or principle joins the

provisions of a proposed amendment. See Kerby, 44 Ariz. at 221,

36 P.2d at 554. Arizona Together argues that Proposition 107

does not meet this criterion and supports its argument by

referring to polling data that purportedly demonstrate that a

reasonable voter would not simultaneously support defining

marriage as a union between only one man and one woman and

support prohibiting the state from creating a legal status for

unmarried persons similar to marriage. For the reasons set

forth below, we will no longer consider the reasonable voter

factor when evaluating separate amendment rule challenges.

14
¶19 As part of our separate amendment rule jurisprudence,

we have previously considered whether a “voter supporting [one

part of an amendment] would reasonably be expected to support

the principle of the [other parts of the amendment].” Id. We

have never applied this reasonable voter inquiry to invalidate

an initiative based solely upon this Court’s prediction of voter

behavior, however, and we have never regarded this factor as a

separate test for determining whether provisions advance a

common purpose or principle. Korte, 199 Ariz. at 177 ¶ 11, 16

P.3d at 204. Rather, we have used this factor only as an

“alternate approach” to assessing whether a common purpose or

principle joins various provisions. Id.

¶20 After reviewing our cases interpreting the separate

amendment rule, we are convinced the reasonable voter analysis

has shed little light on whether a common purpose or principle

exists. Generally, when we have found that a common purpose or

principle joins the various provisions of an amendment, we have

also found that a reasonable voter is likely to support all the

provisions of the amendment. See id. at 177 ¶ 11, 178 ¶¶ 14-17,

16 P.3d at 204, 205 (rejecting argument that voters could not be

reasonably expected to support all the provisions of an

amendment upon finding that proposal satisfied objective

factors); Slayton, 166 Ariz. at 92, 800 P.2d at 595 (concluding

that voters “might reasonably be expected” to support an entire

15
amendment that we had already found to be a “‘consistent and

workable whole on the general topic’ of victims’ rights and

protections” (quoting Kerby, 44 Ariz. at 221, 36 P.2d at 554));

Tilson, 153 Ariz. at 472, 737 P.2d at 1371 (“As the purpose of

each of the propositions in the proposed amendment is the same .

. . voters reasonably can be expected to vote for or against the

amendment as a whole.”); Lockhart, 76 Ariz. at 397, 265 P.2d at

452 (concluding that the “people of this state” could not have

been acting “unreasonably” after finding that the provisions in

question “both relate to, and are germane to, one general

subject”). Conversely, when no common purpose or principle

underlies a proposed amendment, we have concluded that “voters

favoring one proposition would [not] likely favor the other.”

See Clean Elections, 209 Ariz. at 247 ¶ 25, 99 P.3d at 576; see

also Kerby, 44 Ariz. at 221-22, 36 P.2d at 554-55 (declaring,

after finding no interrelatedness among the provisions in

question, that voters would “have widely different opinions” on

the amendment). Perhaps most telling, we have never found that

a reasonable voter was unlikely to support an entire amendment

if the amendment otherwise satisfied the separate amendment

rule, or vice versa.

¶21 Nevertheless, as our previous cases reveal, litigants

have persistently attacked proposed amendments under the

reasonable voter approach by using a variety of arguments, most

16
of which asked the Court to speculate about the behavior of the

electorate at some future time. See, e.g., Korte, 199 Ariz. at

177 ¶ 11, 178 ¶ 14, 16 P.3d at 204, 205 (rejecting argument that

voters could not be reasonably expected to support all

provisions of the amendment); Slayton, 166 Ariz. at 92, 800 P.2d

at 595 (acknowledging that there was “still some question” as to

whether voters “might reasonably be expected to support” the

entire amendment). Notwithstanding our admonition against

excessive reliance on the reasonable voter assessment, see

Korte, 199 Ariz. at 177 ¶ 11, 16 P.3d at 204, litigants have

continued to use the reasonable voter as a proxy for analysis of

objective factors such as those we summarized in Korte. Because

it appears that the reasonable voter inquiry has led to

substantial confusion among litigants, has added nothing to

assure consistency in outcome, and provides little more than a

tautological justification for a conclusion best reached by

applying the topicality and interrelatedness approach to assess

whether a common purpose or principle joins the provisions of a

proposed amendment, we can no longer justify using the

reasonable voter alternative as a part of our separate amendment

jurisprudence. Cf. Derendal v. Griffith, 209 Ariz. 416, 423-24

¶¶ 28-32, 104 P.3d 147, 154-55 (2005) (abandoning continued

reliance on the “moral quality test” because it was “subjective

and ambiguous, [and] inconsistent outcomes resulted”).

17
¶22 The parties here have suggested no other objective

factors that we should consider in this case, and none are

apparent to the Court. For the reasons set forth above, we

conclude that the two provisions of Proposition 107 exhibit

sufficient interrelatedness to satisfy the second component of

the Kerby test.

3.

¶23 Because we find that the two provisions contained in

Proposition 107 share both topicality and interrelatedness, we

hold that the provisions “are sufficiently related to a common

purpose or principle that the proposal can be said to

‘constitute a consistent and workable whole on the general topic

embraced,’ that, ‘logically speaking, . . . should stand or fall

as a whole.’” Korte, 199 Ariz. at 177 ¶ 10, 16 P.3d at 204

(footnote omitted) (quoting Kerby, 44 Ariz. at 221, 36 P.2d at

554).

II.

¶24 Amicus Institute for Justice urges us to adopt an

entirely different approach to determine whether a proposed

amendment satisfies the separate amendment rule. Amicus argues

that Article 21, Section 1 merely imposes a procedural rule that

instructs the Secretary of State as to the proper method to use

in preparing ballots for proposed constitutional amendments.

Under this interpretation, the separate amendment rule lacks any

18
“substantive” component and does not require that we consider

whether the various provisions of a proposed amendment further a

common purpose or principle. We reject this interpretation.

¶25 Contrary to the argument made by amicus, history does

not support a strictly procedural understanding of the separate

amendment rule. Article 21, Section 1 of the Arizona

Constitution was originally submitted as Proposition Number 14

at the Arizona Constitutional Convention. See The Records of

the Arizona Constitutional Convention of 1910, at 686, 1062

(John S. Goff ed., 1991). The proposition was designed to model

Arizona’s method for amending its constitution after that

previously adopted by South Dakota. Id. at 686. During

discussion of the matter at the Constitutional Convention,

Delegate Cunniff noted:

In examining the mode of amendments in the various
constitutions, the South Dakota form seemed to those
of us who worked on this proposition to be as
carefully drawn up and as unmistakably a presentation
of the idea that our constitution wished to convey as
we could find. Into that the initiative method of
proposing an amendment to the constitution was
inserted, in the same manner (and following the same
plan) by which an amendment to the constitution was
worked out in our initiative and referendum article
covering the method of initiating laws. In that way
it conforms to measures that we have already adopted.

Id.

¶26 At the time Mr. Cunniff and the other delegates who

worked on the separate amendment proposition determined that the

19
South Dakota provision conveyed the idea the framers wished to

adopt, South Dakota courts already had held that the provision

required substantive judicial review to decide whether proposed

amendments constituted separate amendments. See State ex rel.

Adams v. Herried, 72 N.W. 93, 96-97 (S.D. 1897) (adopting the

substantive Wisconsin view of the separate amendment provision).

Nor did South Dakota stand alone in its interpretation of this

provision.6 We impute to the framers of the Arizona Constitution

the contemporary understanding of, and judicial construction

given to, the provision they adopted, particularly because they

singled out the South Dakota approach and copied it virtually

verbatim into the Arizona Constitution. See, e.g., Barrows v.

Garvey, 67 Ariz. 202, 209, 193 P.2d 913, 917 (1948) (presuming

that “the framers of our constitution were conversant with and

6
Before the South Dakota Supreme Court decided Herried,
other jurisdictions had also given their separate amendment
clauses a similar construction. See, e.g., State ex rel. Hudd
v. Timme, 11 N.W. 785, 789-91 (Wis. 1882) (concluding that
amendments containing various propositions that “have different
objects and purposes in view” would violate section 1, article
12 of the Wisconsin Constitution, which requires that voters be
permitted to “vote for or against such amendments separately”);
cf. State ex rel. Morris v. Mason, 9 So. 776, 800 (La. 1891)
(considering whether the various provisions of proposed
legislation would constitute “more than one amendment” to the
constitution in violation of a constitutional provision
requiring that amendments be presented to the voters in a manner
allowing them to vote on each amendment separately). The
decision in Timme also provided support for our Kerby opinion,
which adopted a substantive approach. See Kerby, 44 Ariz. at
216-21, 36 P.2d at 552-54.

20
intended to adopt also the construction that had been placed

upon [a] provision” by the courts of the jurisdiction from which

the provision was taken “prior to its incorporation into the

Arizona Constitution”).

¶27 In addition, between the time that South Dakota

construed its provision and the time Arizona adopted its

constitution, several other jurisdictions had given

corresponding constructions to parallel constitutional

provisions. See, e.g., State ex rel. McClurg v. Powell, 27 So.

927, 932 (Miss. 1900) (holding that “there were at least four

amendments submitted to the people” in a single proposition and

“for that reason the amendments were not submitted in accordance

with . . . the constitution, and, notwithstanding the action of

the legislature in inserting them in the constitution, are null

and void, and form no part of said constitution”); see also

People ex rel. Elder v. Sours, 74 P. 167, 176-78 (Colo. 1903)

(citing with approval the approach adopted in Timme, 11 N.W. at

789-91, and Herried, 72 N.W. at 96-97); Hammond v. Clark, 71

S.E. 479, 484-86 (Ga. 1911) (evaluating whether a proposed

amendment constituted more than one amendment, thereby violating

a provision of the state constitution requiring that voters

“vote on each amendment separately”).

¶28 Amicus further argues that giving a substantive

interpretation to the separate amendment rule necessarily

21
undermines the fundamental role the voter initiative plays in

Arizona. As already noted, however, the framers clearly meant

to incorporate both the power of initiative and the South Dakota

approach to amending the constitution. See The Records of the

Arizona Constitutional Convention of 1910, at 686.7

¶29 Moreover, we find it compelling that, while amicus has

cited no jurisdiction that has adopted its proposed

interpretation, other jurisdictions with similar constitutional

provisions share Arizona’s substantive approach.8 Based upon

7
Other states that, like Arizona, give voters the power of
initiative, also construe their separate amendment rules in a
substantive manner. See, e.g., League of Or. Cities v. State,
56 P.3d 892, 904-05 (Or. 2002) (interpreting Or. Const. art.
XVII, § 1); cf. Legislature v. Eu, 816 P.2d 1309, 1320-21 (Cal.
1991) (interpreting Cal. Const. art. II, § 8).
8
See, e.g., Carter v. Burson, 198 S.E.2d 151, 156 (Ga. 1973)
(discussing the state’s constitutional separate amendment rule
and acknowledging its substantive component); State ex rel. Kemp
v. City of Baton Rouge, 40 So. 2d 477, 481 (La. 1949)
(concluding that proposed amendments must have “one purpose, one
design” to satisfy the separate vote requirement contained in
the state constitution); Andrews v. Governor of Md., 449 A.2d
1144, 1150 (Md. 1982) (noting that the state’s separate vote
requirement dictates that when a provision proposes changes that
“deal with different or dissimilar subjects and seek to reach
different objectives which require amendment, then the
legislature must submit these proposals to the electorate so as
to allow the electors to vote upon each separately”); Fugina v.
Donovan, 104 N.W.2d 911, 914 (Minn. 1960) (explaining that the
separate vote requirement in the state constitution requires
courts to assess whether there is a “rational relationship in
purpose, plan, or subject of two or more propositions”);
Marshall v. State ex rel. Cooney, 975 P.2d 325, 331-32 ¶ 24
(Mont. 1999) (concluding that a proposed amendment that amended
three separate parts of the state constitution violated the
“separate vote” requirement of the constitution); Munch v. Tusa,

22
this wealth of historical and contemporary authority, we

300 N.W. 385, 389 (Neb. 1941) (deciding whether the provisions
of a proposed amendment have a “natural and necessary connection
with each other,” and are a “part of one general subject”);
State ex rel. Clark v. State Canvassing Bd., 888 P.2d 458, 461
(N.M. 1995) (noting that the separate vote requirement in the
state constitution is designed to prevent the joinder “of two or
more independent measures” in a single proposal); State ex rel.
Roahrig v. Brown, 282 N.E.2d 584, 586 (Ohio 1972) (“[A] proposal
consists of one amendment to the Constitution only so long as
each of its subjects bears some reasonable relationship to a
single general object or purpose.”); In re Initiative Petition
No. 360, State Question No. 662, 879 P.2d 810, 816-17 (Okla.
1994) (relying on Kerby in construing the state’s constitutional
requirement of a separate vote on each proposed amendment);
League of Or. Cities, 56 P.3d at 904 (“[T]o determine whether a
measure denominated as a single amendment actually contained two
or more amendments for constitutional purposes, a court must
determine whether, if adopted, the proposal would make two or
more changes to the constitution that are substantive and that
are not closely related.” (internal quotation marks omitted));
Milwaukee Alliance Against Racist and Political Repression v.
Elections Bd., 317 N.W.2d 420, 425-26 (Wis. 1982) (reaffirming
the substantive interpretation of the separate vote requirement
in the state constitution, as explained in Timme, 11 N.W. 785);
see also Kerby, 44 Ariz. at 217-18, 36 P.2d at 553 (collecting
additional cases from North Dakota, Iowa, Washington,
Mississippi, and Idaho); cf. Eu, 816 P.2d at 1320 (acknowledging
a substantive role for the state’s “single-subject
requirement”); In re Proposed Ballot Initiative on Parental
Rights, 913 P.2d 1127, 1130-31 (Colo. 1996) (discussing the
state’s constitutional single subject requirement for proposed
amendments); Advisory Opinion to the Att’y Gen. re Term Limits
Pledge, 718 So. 2d 798, 802 (Fla. 1998) (declaring that in order
to “comply with the single-subject requirement” of the state
constitution, “a proposed amendment must manifest a ‘logical and
natural oneness of purpose’” (quoting Fine v. Firestone, 448 So.
2d 984, 990 (Fla. 1984))); Coal. for Political Honesty v. State
Bd. of Elections, 415 N.E.2d 368, 379-82 (Ill. 1980)
(articulating a substantive approach to ensuring that unrelated
questions are not combined in a single proposition); Missourians
to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 830-
31 (Mo. 1990) (explaining that courts must “scrutinize the
proposal to see if all matters included relate to a readily
identifiable and reasonably narrow central purpose” to ensure
compliance with the state constitution’s single subject rule).

23
conclude that this Court correctly interpreted the separate

amendment rule of the Arizona Constitution as imposing

substantive limits on proposed amendments submitted to the

voters.

III.

¶30 For these reasons, we affirm the judgment of the

superior court.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

H U R W I T Z, Justice, concurring

I.

¶31 I have previously suggested that our separate

amendment rule case law needed clarification. Clean Elections

Inst., Inc. v. Brewer, 209 Ariz. 241, 248 ¶¶ 28-30, 99 P.3d 570,

24
77 (2004) (Hurwitz, J., concurring). Today’s opinion undertakes

that task and admirably clears out a considerable amount of our

jurisprudential underbrush.

¶32 Today the Court appropriately returns to first

principles – the test articulated more than seventy years ago in

Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). That test, as

the Court explains, has two components. First, all provisions

of a proposed amendment must relate to the same “general topic.”

Id. at 221, 36 P.2d at 554. This is simply a test of

germaneness. Although most proposed constitutional amendments

will easily pass through this initial screen, a proposed

amendment with separate provisions relating to, for instance,

education and worker’s compensation would plainly fail this

test.

¶33 But Kerby requires more. In that case, the various

provisions of the proposed constitutional amendment all related

to the same general topic – taxation. This Court, however,

found that the proposal did not pass muster under the separate

amendment rule because the various provisions were not

sufficiently interrelated. This second part of the Kerby test

requires that “logically speaking,” the various provisions

“should stand or fall as a whole.” Id. (emphasis added).

¶34 Our cases have generally applied this second prong of

the Kerby test in a straightforward fashion. Tilson v. Mofford,

25
153 Ariz. 468, 737 P.2d 1367 (1987), is a paradigm. Tilson

involved a proposed constitutional amendment with four

provisions authorizing the Legislature to regulate tort damages.

The Court first noted that the various propositions “all related

to the same topic of tort damages.” Id. at 472, 737 P.2d at

1371. The first part of the Kerby test – topicality – was thus

satisfied. The Court then went on to note that the various

provisions in the amendment “all logically related to each

other.” Id. (emphasis added).

¶35 Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990),

is to the same effect. In upholding an initiative involving

victims’ rights against a separate amendment rule challenge, the

Court again applied the two-step Kerby analysis. It concluded

that all provisions of the initiative dealt with the same topic

– “victims’ proposals.” Id. at 92, 800 P.2d at 595. This

satisfied the requirement of topicality. The Court also dealt

with the argument that one provision of the proposed amendment,

which gave the Legislature the power to promulgate rules

relating to victims’ rights, was in reality a separate amendment

and thus violated Article 21, Section 1. The Court rejected

that argument because it agreed with the proponents of the

initiative that this provision was “more than ‘reasonably

related’ to the rest of the proposition.” Id. This satisfied

the second prong of the Kerby test.

26
¶36 In this case, there is no doubt that the two parts of

the Kerby test are satisfied. As the Court notes, both

provisions of Proposition 107 relate to the same general topic –

marriage. Op. ¶ 8. And, it is also clear that the two

provisions have a “logical relationship.” Id. ¶ 17. One

provision defines marriage as only being between a man and a

woman; the second enforces the first by preventing governmental

agencies from enacting marriage substitutes – relationships

substantively identical to marriage but called by a different

name.

¶37 To be sure, the second provision in the initiative

before us today is not necessarily required by the first. It is

quite possible to limit the institution of marriage to persons

of different gender while allowing same-sex couples to enter

into marriage-like relationships. But Kerby does not require

that various provisions of a proposal all be required by the

others. If that were the case, the initiative in Slayton, to

use but one example, would not have passed muster; it was not

necessary to extend rule-making power to the Legislature to

protect victims’ rights. But it was logical and reasonable to

do so, and the rule-making provision therefore met the

interrelatedness test. The provisions here also do so.

27
¶38 I therefore concur in the Court’s conclusion that

Proposition 107 does not violate the separate amendment rule. I

write separately to address two points briefly.

II.

A.

¶39 The Court’s conclusion that the two provisions of

Proposition 107 “share a logical relationship,” Op. ¶ 17, more

than suffices to establish the interrelationship required by the

second prong of the Kerby test. That conclusion should end the

analysis. I would leave for another day the question of whether

in some future case the second prong could alternatively be

satisfied by establishing one of the four “objective factors”

listed in Korte v. Bayless, 199 Ariz. 173, 177 ¶ 11, 16 P.3d

200, 204 (2001), or by some other showing. See Op. ¶¶ 10-17.

¶40 In my view, Korte did not correctly state or apply the

Kerby interrelatedness test. As Chief Justice Zlaket cogently

noted in dissent, there was simply no logical or reasonable

relationship among many of the provisions of the proposed

amendment at issue in Korte. 199 Ariz. at 179–80 ¶¶ 19-26, 16

P.3d at 206-07 (Zlaket, C.J., dissenting). For example, one

provision of the proposed amendment allowed long-term leases of

grazing land without public auction while another permitted

school districts to obtain trust land at no cost. Id. at 179 ¶

20, 16 P.3d at 206. The Korte majority did not find these

28
provisions logically related to each other or to any other

provision of the subject initiative; it instead concluded that

the various provisions constituted a “multifaceted approach” to

the complex issue of managing state lands wisely and thus had a

single purpose. Id. at 178 ¶ 15, 16 P.3d at 205. But such can

be said of virtually any proposed constitutional provision that

meets the topicality prong of the Kerby test – each provision

can be viewed as one facet of improving the constitution’s

treatment of that topic or solving a complex problem.

¶41 I think that the second prong of the Kerby test

requires more - a reasonable or logical relationship of the

various provisions with each other, and not simply with the

broader topic that they cover. It is this interrelatedness

which, in the words of Kerby, ensures that “logically speaking,

they should stand or fall as a whole,” 44 Ariz. at 221, 36 P.2d

at 554, so that the provisions form one amendment, not several.

¶42 In finding the two provisions of Proposition 107

sufficiently interrelated to pass separate amendment rule

scrutiny, the Court today cites language in Korte suggesting

that the separate amendment rule is satisfied when “the various

provisions are qualitatively similar in their effect on either

procedural or substantive law.” Op. ¶¶ 10, 16-17. Korte in

turn cited Slayton in support of this formulation, Korte, 199

Ariz. at 177 ¶ 11, 16 P.3d 204, but this language does not

29
appear in Slayton, nor do I believe that it accurately

characterizes the analysis in Slayton. Rather, as noted above,

I think that Slayton straightforwardly applied the

topicality/logical relationship test set forth in Kerby.

¶43 A great virtue of the Court’s decision today is the

return to the historic Kerby test. Because a logical

relationship between two provisions plainly satisfies the second

prong of that test, I would not today attempt to tease out of

our post-Kerby cases other “objective factors” establishing

interrelationship, and I am particularly reluctant to use Korte

as an avatar.

B.

¶44 Perhaps the most useful aspect of the Court’s opinion

is its interment of the “reasonable voter” test. Op. ¶¶ 18-20.

I have previously noted my discomfort with that test, which

requires “a judicial determination of whether a voter supporting

one part of a proposed amendment would ‘be expected to support

the principle of the others’” and thus “involves the Court in a

prediction of voter preferences and behavior that is often

somewhat subjective.” Clean Elections, 209 Ariz. at 248 ¶ 29,

99 P.3d at 577 (Hurwitz, J., concurring) (quoting Kerby, 44

Ariz. at 221, 36 P.2d at 554). Moreover, the test is in some

ways unrelated to the true purpose of the separate amendment

rule. It may be empirically true, for example, that all voters

30
who oppose gun control also oppose trade with China. Yet these

common preferences would not suffice to protect a constitutional

amendment addressing both issues from an attack under Article

21, Section 1.

¶45 As the Court notes, our past cases applying the

reasonable voter test have also relied on other parts of the

Kerby rubric in determining whether a particular proposal

satisfied the separate amendment rule. Op. ¶ 20. Whether each

of those cases was correctly decided is not before us today, and

there is no reason to revisit each of our prior opinions to

speculate whether they would have come out the same way in the

absence of the reasonable voter test. But, at the very least,

our past focus on the mythical reasonable voter has required us

to engage in a predictive exercise for which judges are ill-

suited and which had the potential of producing inconsistent

results. By limiting our analysis to two far more objective

factors – topicality and interrelatedness – the Court’s opinion

should add greater predictability to our future separate

amendment rule jurisprudence.

__________________________________
Andrew D. Hurwitz, Justice

31