Clean Elections v. brewer/no Taxpayer

SUPREME COURT OF ARIZONA
En Banc

CLEAN ELECTIONS INSTITUTE, INC., ) Arizona Supreme Court
an Arizona non-profit ) No. CV-04-0263-AP/EL
corporation; MICHAEL J. VALDER; )
and LYDIA GUZMAN, ) Maricopa County
) Superior Court
Plaintiffs/Appellees/ ) No. CV2004-012699
Cross-Appellants, )
v. )
)
JANICE BREWER, in her official )
capacity as Secretary of State )
for the State of Arizona, )
)
Defendant/Appellant/ )
Cross-Appellee, )
)
NO TAXPAYER MONEY FOR ) O P I N I O N
POLITICIANS, an unincorporated )
association; ERIC CROWN, in his )
capacity as chairman of the )
association; LETTIE PHILLIPS, in )
her capacity as treasurer of the )
association, )
)
Real Parties in Interest/ )
Appellants/Cross-Appellees.)
)
__________________________________)

Appeal from Superior Court of Maricopa County
CV-2004-012699
The Honorable Margaret H. Downie
AFFIRMED
________________________________________________________________
Perkins Coie Brown & Bain P.A. Phoenix
by Charles A. Blanchard
Michael S. Mandell
Michael T. Liburdi
Attorneys for Clean Elections Institute Inc., Michael J. Valder
and Lydia Guzman

James P. Walsh, Acting Attorney General Phoenix
by Jessica G. Funkhouser, Special Counsel
Diana L. Varela, Assistant Attorney General
Attorneys for Janice Brewer

Gammage & Burnham Phoenix
by Lisa T. Hauser
Cameron C. Artigue
Attorneys for No Taxpayer Money For Politicians, Eric Crown and
Lettie Phillips

Coppersmith Gordon Schermer Owens & Nelson P.L.C. Phoenix
By Andrew S. Gordon
Attorneys for Amicus Curiae Arizona Corporation
Commissioners/Candidates for the Arizona Corporation
Commission

Irvine Law Firm, P.A. Phoenix
by Thomas K. Irvine
Attorneys for Amicus Curiae Hon. Raul H. Castro
_______________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1 In November 1998, the voters of Arizona adopted the

Citizens Clean Elections Act (the Act), later codified as

Arizona Revised Statutes (A.R.S.) §§ 16-940 to 16-961 (Supp.

2003). In June 2004, a group known as No Taxpayer Money for

Politicians filed initiative petition signature sheets seeking

to qualify Proposition 106 for the 2004 general election ballot.

The plaintiffs brought this action to enjoin the Secretary of

State from certifying Proposition 106. Following a hearing, the

superior court concluded that Proposition 106 violated the

2
“separate amendment rule”1 of Article 21, Section 1, of the

Arizona Constitution because it incorporates two separate

constitutional amendments. For that reason, the court ordered

that the matter not be certified and placed on the ballot. On

August 12, 2004, we entered an order affirming the judgment of

the superior court, with this opinion to follow.

II.

¶2 Whether an initiative violates the separate amendment

rule presents a question of law, which we review de novo. See

Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204

Ariz. 394, 397 ¶ 5, 64 P.3d 836, 839 (2003).

A.

¶3 The Arizona Constitution includes two provisions often

loosely referred to as adopting a “single subject rule.” The

first, Article 4, Part 2, Section 13, sets out the rule that

applies uniquely to statutes enacted by the legislature.2 That

provision states:

Every Act shall embrace but one subject and
matters properly connected therewith, which
subject shall be expressed in the title; but
if any subject shall be embraced in an Act

1
Although this Court has referred to Article 21 as setting
out a “single subject rule,” its language can better be
described as setting out a “separate amendment rule,” and we
will use that term in this opinion.
2
Article 4 does not apply to laws adopted by initiative.
Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 524 ¶
35, 1 P.3d 706, 714 (2000).

3
 which shall not be expressed in the title,
such Act shall be void only as to so much
thereof as shall not be embraced in the
title.

Ariz. Const. art. 4, pt. 2, § 13.

¶4 The purpose of this single subject provision is to

prevent surprise and the evils of surreptitious or hodgepodge

legislation, including the practice known as logrolling. Taylor

v. Frohmiller, 52 Ariz. 211, 215-16, 79 P.2d 961, 963 (1938).

Although this provision does not require that the “title of the

act should be a complete index to the legislation contained

therein,” id. at 216, the title of an act “should not be so

meager as to mislead or tend to avert inquiry as to the context

thereof . . . .” Dennis v. Jordan, 71 Ariz. 430, 439, 229 P.2d

692, 697-98 (1951). To allow the legislature freedom to act,

while enforcing the command of this provision, our

interpretation of the single subject rule must be not “so

narrowly technical on the one side so as to substitute the

letter for the spirit, or so foolishly liberal on the other as

to render the constitutional provision nugatory . . . .”

Taylor, 52 Ariz. at 217, 79 P.2d at 964. Under this provision,

we construe legislation liberally in favor of its

constitutionality. See White v. Kaibab Rd. Improvement Dist.,

113 Ariz. 209, 212, 550 P.2d 80, 83 (1976).

4
¶5 The constitutional language also directs that “if any

subject shall be embraced in an Act which shall not be expressed

in the title, such Act shall be void only as to so much thereof

as shall not be embraced in the title.” Ariz. Const. art. 4,

pt. 2, § 13. Thus, if one portion of a statute violates the

single subject rule, “only that part which is objectionable will

be eliminated and the balance left intact.”3 State v. Coursey,

71 Ariz. 227, 236, 225 P.2d 713, 719 (1951); see also Citizens

Clean Elections Comm’n v. Myers, 196 Ariz. 516, 522, 1 P.3d 706,

712 (2000) (stating that unconstitutional provision of act was

severable from remainder of act).4

B.

¶6 In contrast, the Arizona Constitution establishes a

stricter test for determining whether a proposal involves more

than one constitutional amendment. See Ariz. Const. art. 21, §

3
To determine whether the court can sever the offending
portion of a statute, we consider “whether the valid portion can
operate without the unconstitutional provision and, if so, we
will uphold it unless the result is so absurd or irrational that
one would not have been adopted without the other.” Citizens
Clean Elections Comm’n, 196 Ariz. at 522, 1 P.3d at 712.
4
The saving measure of severance responded to the concern,
as expressed by some framers of the Arizona Constitution, that
the single-subject provision established “a handle or a string
upon every law by which the court can declare it
unconstitutional.” Statement of Fred L. Ingraham (Nov. 23,
1910), in The Records of the Arizona Constitutional Convention
of 1910, at 590 (John S. Goff ed.).

5
1 (Article 21). In language distinguishable from that used to

describe the single-subject rule, the constitution provides:

If 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.

¶7 The clear import of this provision is that voters must

be allowed to express their separate opinion as to each proposed

constitutional amendment. The separate amendment rule of

Article 21 differs from the single-subject rule of Article 4 in

two important respects. First, although statutes comply with

the single-subject rule if they “embrace but one subject and

matters properly connected therewith,” Article 21 includes no

reference to matters “connected with” a proposed constitutional

amendment. Simply showing that several sections of a proposed

amendment relate to the same general subject as that expressed

in the title of the proposed amendment does not satisfy the

requirements of Article 21. Instead, Article 21 requires that

each proposed amendment “shall be” presented in a manner that

allows the voters to consider and vote for or against each

amendment separately.

¶8 Second, unlike the single-subject provision of Article

4, Article 21 does not permit the court to sever an offending

provision from a multiple-proposal constitutional amendment. See

6
Taxpayers Prot. Alliance v. Arizonans Against Unfair Tax Schemes,

199 Ariz. 180, 182 ¶ 7, 16 P.3d 207, 209 (2001) (holding that

court has no authority to sever sections of a proposed amendment

to the constitution). Instead, if a proposal includes more than

one amendment, the entire proposal falls within the

constitutional prohibition.

¶9 The distinctions between Article 4 and Article 21

reflect the unique position and importance of the Arizona

Constitution in state governance. The constitution provides a

statement of basic principles that inform and define the

foundation of the state’s laws. See Miller v. Heller, 68 Ariz.

352, 357, 206 P.2d 569, 573 (1949) (“The constitution of this

state, second only to the constitution of the United States, is

the supreme law of Arizona.”); see also Cecil v. Gila County, 71

Ariz. 320, 322, 227 P.2d 217, 218 (1951) (stating that the

Arizona Constitution is basic law); see also John D. Leshy, The

Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 112

(Spring 1988) (“[O]ne thing about the intent of the framers of

the Arizona Constitution is absolutely clear - they fully

expected the document they crafted to be the primary charter of

state government and the primary check on it.”). If the

principles set out in this fundamental document are to be

changed by a vote of the people, the voters must receive the

7
opportunity to express their opinion clearly as to each proposed

change.

¶10 When a proposed amendment consists of multiple

provisions, the proposal constitutes one amendment under the

terms of the constitution only if its 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.” Kerby v. Luhrs, 44 Ariz. 208,

221, 36 P.2d 549, 554 (1934) (emphasis added).

¶11 Under the “common purpose or principle test,”

[i]f 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 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.

Id.

¶12 To determine whether the provisions of a proposed

amendment meet the common purpose or principle test, we consider

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.

8
Korte v. Bayless, 199 Ariz. 173, 177 ¶ 11, 16 P.3d 200, 204

(2001) (citations omitted).

III.

A.

¶13 To measure Proposition 106 against the dictate of

Article 21, we first describe briefly the Clean Elections Act,

which Proposition 106 is intended to affect. The Act

established the Citizens Clean Election Commission (the

Commission). A.R.S. § 16-955. The Act assigns the Commission

many duties related to the conduct of public elections, but

three are paramount. First, the Commission administers the

public funding provided under the Act for the campaigns of

participating candidates. Id. § 16-951. Second, it administers

a voter education program and provides for debates among

candidates.5 Id. § 16-956.A.1 and A.2. Third, the Commission

enforces the provisions of Title 19, Chapter 6, Article 2,

5
According to the record in this case, the Commission will
spend $1,258,541.25 in 2004 to publish and distribute voter
guides. In 2002, the last complete election cycle, the
Commission spent $1,601,437 for voter education. See 2002 Annual
Report of the Clean Elections Commission, at 34, available at
http://www.ccec.state.az.us/ccecscr/pub/pdfPub.asp?docName=2002%
20Annual%20Report&docFile=ccec_ar2002.pdf.

9
dealing with administration and enforcement.6 Id. § 16-956.A.7.

The latter two categories do not relate to the public financing

of political campaigns. Rather, they address voter education

and require that the Commission enforce measures such as (1)

statutory limits on acceptance of campaign contributions, which

limits apply to candidates not receiving public funding, § 16-

941.B.1, (2) requirements concerning reporting of contributions

by candidates who do not receive public funding, § 16-941.B.2,

(3) requirements that those making independent expenditures file

periodic reports, § 16-941.D, and (4) provisions allowing

candidates to agree jointly to restrict campaign expenditures, §

19-941.C.1. Nothing in Proposition 106 alters these statutory

duties. The Commission, therefore, would retain full

enforcement authority and responsibility as to these provisions

even if the voters abolished public financing of political

campaigns.

¶14 Under the Act, campaign funding for participating

candidates, as well as funding for the Commission to carry out

its various duties, comes not from the general fund, but rather

from the Clean Elections Fund (the Fund), which receives monies

from a variety of explicitly dedicated sources. Any taxpayer

may contribute five dollars to the Fund by marking an optional

6
In 2002, the Commission spent $845,141 on administration
and enforcement. See 2002 Annual Report at 34.

10
check-off box on his or her Arizona income tax form. Taxpayers

who do so receive an equal tax credit.7 Id. § 16-954.A.

Taxpayers also may donate taxes owed the state to the Fund, in

an amount up to twenty percent of the tax owed, or five hundred

dollars per taxpayer, whichever is higher.8 Id. § 16-954.B.

Finally, the Act imposes a surcharge of ten percent on all

criminal and civil fines and penalties, the proceeds of which

are deposited into the Fund.9 Id. § 16-954.C.

¶15 The Act also places limits on monies that the

Commission may spend and defines the expenditures that the

Commission must or may make. The Act caps the total amount the

Commission may spend each year at five dollars for each state

personal income tax return filed by an Arizona resident during

the previous calendar year. Id. § 16-949.A. The Commission

“may use” up to ten percent of this amount for administrative

and regulatory expenses. Id. § 16-949.B. Any portion of the

ten percent not used for these purposes remains in the Fund.

Id. The Act also instructs that the Commission “shall apply”

_____________________
7
In 2002, the Commission received $3,254,258 from such
check-offs. See 2002 Annual Report at 32.
8
In 2002, the Commission received $98,688 from such
donations. See 2002 Annual Report at 32.
9
In 2002, the Commission received $6,252,944 in fines,
forfeitures and penalties. See 2002 Annual Report at 32.

11
ten percent of the money collected pursuant to section 16-949.A

to voter education. Id. § 16-949.C.

¶16 At least once each year, the Commission must project

the amount of money it will collect over the next four years.

Id. § 16-954.D. Then, assuming it will spend the maximum amount

allowed by section 16-949.A, the Commission designates any

projected surplus as excess funds, which return to the state’s

general fund. Id. § 16-954.D.

B.

¶17 We apply the common purpose or principle test of Korte

and Kerby to the operative sections of Proposition 106. If we

cannot conclude that the provisions should stand or fall

together or that a voter supporting one would reasonably be

expected to support the principle of the other, we are obliged

to find that Proposition 106 violates the separate amendment

rule of Article 21.

¶18 Section A of Proposition 106 states that “[n]o

taxpayer money10 shall be used to fund any political candidate or

10
Section B of Proposition 106 broadly defines “taxpayer
money” as “any tax, fee, assessment, surcharge, forfeiture,
penalty, fine, other revenue or funds collected by the state, a
political subdivision, department, agency or instrumentality of
the state, city or town” or “any contribution, donation or
expenditure that is eligible for a state tax reduction,
deduction, exemption, exclusion, credit, donation, check-off or
other tax feature.” The definition effectively includes all
money currently used to fund the Commission, regardless whether
it comes from taxpayers.

12
campaign for statewide office or the office of a member of the

legislature.” The purpose underlying section A seems clear:

this provision seeks to end public funding of statewide and

legislative campaigns. The section uses clear and sufficient

language to accomplish its purpose: If the voters were to adopt

this language, the Arizona Constitution would forbid public

funding of campaigns, and those portions of the Clean Elections

Act that require such funding would violate the Constitution

and, hence, be unenforceable. Voters who agree with the

principle that Arizona should not provide public funding for

campaigns presumably would support this provision.

¶19 Section C of Proposition 106 provides that “all money

in [the Clean Elections Fund], on and after the effective date

of this section, shall be deposited in the general fund of the

state.” This language dramatically changes the funding source

for the Clean Elections Commission by sweeping funds dedicated

by the voters to the Commission into the state’s general fund.

Under the Act as adopted in 1998, and subject only to its

limitations, the Commission independently decides how to spend

the monies in the Fund and how much to spend on particular

activities. See ¶ 15, supra. By virtue of section C of

Proposition 106, the Commission, rather than being funded from

an established, dedicated source, will become dependent upon

legislative appropriations from the general fund to support all

13
Commission duties unrelated to public campaign financing. In

short, section C strips the Commission of its independence from

legislative appropriation and renders it subject to legislative

control of its budgeting decisions.

¶20 No facial relationship exists between sections A and

C, and the sections advance no common purpose or principle.

The purpose of section C, unlike that of section A, cannot be to

eliminate public funding of political campaigns: Section A

accomplishes that purpose. Nor can the purpose of section C be

simply to assure that dollars no longer used for public funding

of political campaigns be returned to the general fund. Section

16-954.D of the Act as it presently exists already requires the

periodic return of excess funds to the general fund and, in

addition, the impact of section C is not limited to funds that

previously might have been used for political campaigns.

Rather, section C reverts the entirety of all monies deposited

in the Fund to the general fund.

¶21 One purpose of section C must be to deprive the

Commission of its authority to make independent budgeting

decisions by changing the funding source for the Commission and,

concomitantly, to increase the amount of monies that go into the

general fund.11 Therefore, no common purpose joins sections A

11
The initiative description prepared by the proponents of
Proposition 106 suggests that increasing the general fund is at

14
and C. Nor can we conceive of a common principle that underlies

the two provisions. The question posed by section C, whether

Arizona’s voters would choose to change the funding source for

the Commission and make the Commission dependent upon a

legislative appropriation to carry out its remaining duties,

involves a principle quite different from the question posed by

section A, whether the voters would choose to end public funding

for political campaigns.

¶22 The proponents of Proposition 106 argue that, whatever

the language of section C, the effect of that section will be

negligible. They point out that the Clean Elections Act

mandates that the Commission devote ten percent of the amount

derived under A.R.S. § 16-949.A to its duties of voter

education. Id. § 16-949.C. Therefore, the proponents conclude,

the legislature could not appropriate less than the mandated

amount for the Commission’s voter education activity. Even

assuming arguendo that the proponents are correct, the fact

remains that section C changes the funding source for the

Commission’s enforcement and administrative duties. Under the

terms of the Act, the Commission may use “up to ten percent” of

_____________________
least one purpose of section C. The description, after setting
out the amount of money spent under the Clean Elections Act in
2002, stated: “With severe budget cutbacks an unfortunate
reality, this $13 million is better spent on education,
healthcare for seniors, and other essential services.” Petition

15
the amount defined by section 16-949.A for its administrative

and enforcement duties. Id. § 16-949.B. As adopted by the

voters, the Act gave the Commission discretion to decide how

much to spend for administration and enforcement, subject only

to the limitation that the amount could not exceed ten percent

of the available monies.

¶23 Section C transfers that decision to the

legislature, thereby divesting the Commission of its authority

to make independent funding decisions. It thus represents an

important change to the existing statutory scheme: Whereas the

Commission now can itself decide how much to spend on

enforcement of election laws, under Proposition 106 the

Commission would be required to apply to the legislature for

funds to fulfill its enforcement duties, even though the members

of the legislature are always potential targets of such

enforcement efforts. Arizona’s voters surely could adopt such

an approach. But because the proposition advanced by section C

rests upon a principle quite different from that advanced by

section A, Article 21 requires that the voters be afforded the

opportunity to consider a constitutional amendment that presents

only that decision, not an amendment that joins the separate

_____________________
Signature Sheets for Proposition 106, filed with the Arizona
Secretary of State.

16
question of whether Arizona should publicly fund political

campaigns.

C.

¶24 Section C of Proposition 106 furthers yet another

purpose, also unrelated to the purpose and principle underlying

section A. When the voters adopted the Clean Elections Act,

they approved a surcharge on all criminal and civil fines and

penalties and dedicated those funds to specific purposes defined

in the Act.12 A.R.S. § 16-954.C. As noted above, section C

would transfer those previously dedicated funds to the state

general fund. Article 21 requires that we ask whether a common

principle supports both the proposition that Arizona should

prohibit public financing for political campaigns and the

proposition that Arizona should impose a significant surcharge

on civil and criminal fines to support the general fund.

¶25 We cannot conclude from any objective factor that

voters favoring one proposition would likely favor the other.

No common principle makes it likely that one who votes to

abolish public financing of political campaigns also would vote

12
During 2002, the surcharge accounted for approximately
sixty-two percent of the dedicated funds that the Commission
received. See 2002 Annual Report at 34.

17
to retain a surcharge that provided taxpayer money, as defined

in Proposition 106, for those campaigns.13

¶26 The voters, of course, retain the right to continue

the surcharge and to allow the funds previously dedicated to the

Commission to be diverted to the general fund. If the voters

are to be asked to approve the use of this surcharge to increase

the general fund, however, they must be given the opportunity to

express their opinion through a separate proposed amendment.

IV.

¶27 For the forgoing reasons, we affirm the judgment of

the Superior Court.

_____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_________________________________
Charles E. Jones, Chief Justice

13
A previous initiative measure adopted by Arizona’s voters
strongly suggests that this state’s voters prefer to directly
express their views concerning the use of dedicated funds
established by the voters. In 1998, the voters amended the
Arizona Constitution to provide that the legislature may
“appropriate or divert funds allocated to a specific purpose by
an initiative measure approved by a majority of the votes cast
thereon” only if the diversion or appropriation of funds
furthers the purposes of the initiative and only if approved by
a vote of three-fourths of the members of the legislature.
Ariz. Const. art. 4, pt. 1, § 1(6)(D).

18
_________________________________
Rebecca White Berch, Justice

_________________________________
Michael D. Ryan, Justice

__________________________________
Andrew D. Hurwitz, Justice

H U R W I T Z, Justice, concurring:

¶28 The opinion of the Court faithfully summarizes and

correctly applies our precedents concerning the “separate

amendment rule” in Article 21, Section 1 of the Arizona

Constitution. The opinion is particularly useful in emphasizing

the differences between this constitutional provision and the

“single subject” rule applicable to legislation in Article 4,

Part 2, Section 13. Op. ¶¶ 3 - 9.14

¶29 While I join the Court’s opinion, I have substantial

doubts about the continued utility of the “common principle or

purpose test” derived from Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d

549 (1934), and its progeny. Because that test in part turns on

14
Because even the more lenient “single subject” rule of
Article 4, Part 2, Section 13 does not apply to legislation
proposed by initiative, Citizens Clean Elections Comm’n v.
Myers, 196 Ariz. 516, 524 ¶ 35, 1 P.3d 706, 714 (2000), it is
clear that if Proposition 106 had offered legislation, rather
than a constitutional amendment, the multiple subjects in the

19
a judicial determination of whether a voter supporting one part

of a proposed amendment would “be expected to support the

principle of the others,” id. at 221, 36 P.2d at 554, it

involves the Court in a prediction of voter preferences and

behavior that is often somewhat subjective and that will subject

most proposed multi-faceted constitutional amendments to attack.

¶30 It may well be that a different approach to the

separate amendment rule would provide greater certainty in

interpretation while still achieving the critical goal of

Article 21, Section 1 – making sure that when voters are asked

to amend the Constitution, what is before them is a single

amendment, not several distinct proposals lumped under one

heading. For example, an approach that focused on such

objective factors as whether one proposal logically follows from

another and is necessary for the practical implementation of the

first might well provide more predictable adjudication.

¶31 The parties to this case, however, did not argue that

we should apply anything but the traditional Kerby test, and I

am reluctant to consider altering our traditional approach in

the absence of briefing and argument on the subject. For the

reasons stated by the Court, Proposition 106 fails the Kerby

_____________________
proposal would not have barred its placement on the general
election ballot.

20
test, and I therefore leave for another day whether that test

should continue to govern our separate amendment jurisprudence.

_______________________________________
Andrew D. Hurwitz, Justice

21