Tilson v. Mofford

FELDMAN, Vice Chief Justice,

concurring.

I concur in the court’s analysis and conclusion. I write separately only because I believe part III of the court’s opinion requires further comment.

In order to accurately describe and properly inform the public of its effect, the initiative measure should have been labeled as follows:

AN INITIATIVE MEASURE PROPOSING TO AMEND ARTICLE 2, SECTION 31 AND ARTICLE 18, SECTION 6 OF THE CONSTITUTION SO AS TO ENABLE THE LEGISLATURE TO SET LIMITS ON THE AMOUNT OF DAMAGES TO BE AWARDED FOR INJURY OR DEATH, AND TO LIMIT ATTORNEY’S FEES IN SUCH CASES.

Instead, the amendment was put before the people under a title indicating that it was an amendment to art. 27 of the Arizona Constitution, a provision that deals with the legislature’s power to regulate ambulances. Nothing in the title or body of the initiative proposal clearly stated that its actual effect was to modify the guarantees contained in art. 2, § 31 and art. 18, § 6, which prohibit the legislature from either abrogating the right to recover damages or limiting the amount recovered. This result nevertheless was accomplished by the concluding paragraph of the proposal, which states that the initiative governs over all other sections of the Constitution.

Thus, the title and wording of the initiative proposal did not indicate its effect on art. 2, § 31 and art. 18, § 6; in fact, the initiative title and wording actually may have disguised the proposal’s reach. Believing, with the court, that the democratic process requires questions of fairness in drafting to be resolved first by the electorate rather than the judiciary, I concur in the holding that the judicial branch has no power to keep the proposal off the ballot simply because we might believe the matter has not been submitted to the people in a fair form. In my view, however, the question of fairness and clarity may be addressed by the legislature. See Ariz. Const, art. 4, pt. 1, § 1 and A.R.S. § 19-102 *474et seq. The legislature certainly may require that initiative measures amending existing portions of the Constitution be submitted to the people with a caption indicating the constitutional sections to be affected. It may require that the proposal set forth both the original text and the proposed amended text. Such statutory requirements would have the salutary effect of informing the electorate of just what they are being asked to do and what changes are being made. It would have the further beneficial effect of decreasing the selling power of public relations specialists on either side of any proposal. The question should not be how palatable something can be made to appear but how accurately it is put before the people.

GORDON, C.J., joins in Vice Chief Justice Feldman’s concurrence.