Citizens Clean Elections Commission v. Myers

FELDMAN, Justice,

concurring in part, dissenting in part.

¶38 I join the majority’s opinion, except Sections II (¶¶ 8 through 22) and III (¶¶ 23 through 25). I dissent from Section II because I have serious reservations about some of its language and disagree with the conclusion that the assignment of nominating duties to the Commission on Appellate Court Appointments violates our state constitution. Believing the assignment of such duties is not unconstitutional, I conclude that the sev-erability discussion in Section III is irrelevant and therefore do not join in that section.

A. The Commission on Appellate Court Appointments

¶ 39 In Section II, the majority concludes that A.R.S. §§ 16-940 to 16-961 (the Act) gives the Commission on Appellate Court Appointments (the Commission) “functions wholly alien to its constitutional charter” and thus violates the constitution. Ante ¶22. The majority does not tell us which section of the constitution is violated but does say that the Commission’s duties under the Act are “simply incompatible with article VI, sections 36 and 37” of our constitution. Id. While the majority argues that this finding arises from the language of the constitution, it cites no textual prohibition to the legislative assignment of additional functions, thus violating “ ‘the presumption that the Legislature is acting within the Constitution ... until it is made to appear in what particular it is violating constitutional limitations.’” Earhart v. Frohmiller, 65 Ariz. 221, 224, 178 P.2d 436, 438 (1947)(quoting MacMillan Co. v. Clarke, 184 Cal. 491, 194 P. 1030, 1032 (1920) (emphasis added)). Given the plenary nature of the state’s legislative power, the finding of incompatibility, in the absence of textual prohibition, necessarily presupposes that the Commission’s functions are judicial in nature and its work, therefore, part of the operation of the judicial branch of government.

¶40 But even a cursory examination reveals that there is no incompatibility between the functions constitutionally assigned to the Commission and those additional duties assigned by the Act. While the Commission is established by section 36 of the judicial article of the constitution, it is not a judicial entity. Ten of its sixteen members are lay persons and five are lawyers nominated by the State Bar. All fifteen are appointed by the Governor and confirmed by the Senate. Ariz. Const., art. VI, § 36. The only judicial officer on the Commission is the Chief Justice, who presides over the Commission’s meetings. Id. We thus have a Commission composed almost entirely of persons who do not hold judicial office and are not members of the judicial branch.

¶41 Nor are the Commission’s functions judicial in nature. The Commission adjudicates nothing, and its work is unrelated to any adjudicatory or judicial function. Its sole constitutional duty is the nomination of candidates for appointment by the Governor to the appellate bench. Id., § 37. The selection process for judicial office is not a function of the judicial branch. In this country quite the opposite is true: the entire appointment process, including nomination and con-*526fírmation, has always belonged to the other branches of government. I see no support, therefore, for the majority’s idea that the duties the constitution assigns to the Commission uniquely belong to the judicial branch. Neither the composition nor the functions assigned to it by the constitution compel such a result. I disagree, thus, with the majority’s conclusion that the duties the Act assigns to the Commission are incompatible with its constitutionally assigned duties. Furnishing slates of names for gubernatorial appointment is exactly what the Commission was created to do.

¶42 VotePac argues, however, that the Commission was designed to screen and nominate candidates for judicial office and that “a serious conflict is created when the legislative branch assigns duties to the [Commission] that have no relation to the administration of justice” and “create [an] inherent conflict and are repugnant to its judicial purpose.” Response to Petitions for Special Action at 11. Evidently VotePac, and perhaps .the majority, fears that exposing the Commission to a role in partisan election activities will compromise the Commission’s nonpartisan constitutional role in the selection of judges. Here, again, the assumption is quite unsupported. •

¶43 The constitution describes the Commission as nonpartisan. Art. VI, § 36. But party membership must be considered in appointing Commission members. The constitution requires the Commission to make its decision “without regard to political affiliation.” Id., § 36(D). But governors hold political office, and no matter what their political persuasion, they take politics into consideration in making appointments to the Commission and bench. Anyone familiar with the workings of the Arizona nominating commissions knows there are political pressures on the commissioners. Politics is not wholly alien to them. While the members of all three nominating commissions have done excellent work in a difficult task, they do not live in a vacuum and are quite familiar with the pressures arising from our political system. It is doubtful whether their activities in nominating a relatively few nonpartisan slates for appointment to the Clean Elections Commission would expose them to any greater or different political pressure than their work in nominating a much larger number of nonpartisan slates for appointment to the appellate bench. Thus I disagree with the majority’s largely unexplained conclusion that the Commission’s duties under the Act are “wholly alien to its constitutional charter” under article VI, §§ 36 and 37. Ante ¶ 22.

¶ 44 But the majority ignores any analysis of the Commission’s nature and functions and, in its search for a constitutional basis, raises a new and dangerous concept of state constitutional law.

B. Change in constitutional doctrine

¶ 45 To buttress its opinion, the majority states that one “conclusion that might be drawn from textual analysis [of the constitution] alone is that where the constitution intends that the legislature have the power to expand the duties of a constitutional entity, the constitution will so state.” Ante ¶ 10. If this were merely a recitation of VotePac’s argument, I would have no objection to it or to the corollary that “the duties of the constitutional entity are only those specifically described by the constitutional grant of authority.” Id.

¶46 The majority, however, seems to approve VotePac’s argument in a misplaced reliance on Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003 (1958). Whitney dealt with the qualifications for holding an office established by the constitution and simply held that where the constitution sets qualifications for an office, the legislature is without power to add to or subtract from such qualifications. Id. at 47, 330 P.2d at 1005; see also State ex rel. Sawyer v. LaSota, 119 Ariz. 253, 580 P.2d 714 (1978), the other case cited by the majority. Ante ¶¶ 15-17. There is no quarreling with these cases because by reciting qualifications, the constitution has prescribed all that is necessary for holding the office in question, and any legislative attempt to add or subtract qualifications impliedly conflicts with the constitutional text.

¶ 47 The present question is not comparable at all, yet the majority uses Whitney’s language that when the constitution contains *527“[p]ositive directions,” there is “an implication against anything contrary to them.” Ante ¶ 17 (quoting Whitney, 85 Ariz. at 47, 330 P.2d at 1005 (emphasis added)). Whitney, however, used this language in the context of changing, and thus violating, the constitution’s textual prescription of what was necessary to hold a particular office. In our case, the legislative assignment of additional nominating duties does not conflict with, impact, or affect the Commission’s performance of its constitutional duties. The Act assigns a different and additional duty that does not relate to or affect the duties assigned and granted by the constitution. Indeed, we have expressly renounced the idea that the constitution’s express assignment or grant of a particular legislative power implies a denial of other powers not specified. Cox v. Superior Court, 73 Ariz. 93, 96, 237 P.2d 820, 822 (1951) (state legislative power is plenary and, unlike federal, not based on express constitutional authorization; nor should rule of ex-pressio unius est exclusio alterius be used to restrict state’s plenary legislative power).

C. Exegesis

¶48 The majority makes the necessary obeisance to this basic principle of state constitutional law by stating that it “agree[s] with and re-affirm[s] the rule of Frohmiller and Cox that the legislature need not look to an express grant of authority in order to justify an enactment.” Ante ¶ 141 Then, however, it relies on those eases for the further principle that such plenary power “is subject to the limitations imposed by the constitution.” See ante ¶ 14. Such limitations, the majority says correctly, may be found in both the express text of the constitution and, by implication, necessarily arising from the constitution. Id. For this dictum, the majority relies on our past approval of the following words in Judge Cooley’s 1927 work:

The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.

Ante ¶ 18, quoting from 1 Thomas M. Cooley, Constitutional Limitations 176 (8th ed.1927), and citing Hudson v. Kelly, 76 Ariz. 255, 263, 263 P.2d 362, 367 (1953).

¶ 49 Judge Cooley’s words, however, were not written to justify the rule that the expression or grant of a particular legislative power implied a denial of related powers. They were written in the context of a discussion about the separation of powers doctrine. The frame of the government to which he referred was the separation of powers be-twéen the legislative branch on the one hand and the executive and judicial branches on the other. As he wrote two paragraphs after the words quoted by the majority:

I entertain no doubt, ... that, aside from the special limitations of the Constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are, by the Constitution, distributed to other departments of the government. It is only the legislative power which is vested in the [legislative body]. But where the Constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this [legislative] power.

Cooley, supra, at 179, quoting an unidentified Comstock, J.

*528¶ 50 It is here, I believe, that the majority makes its basic error. There are implied limitations to the legislative power, but as Judge Cooley said, they arise not from the grant of express powers but from the frame or structure of government, the separation of powers between the legislative, executive, and judicial branches. In the absence of express text prohibiting the exercise of legislative power, the plenary power to legislate is restricted only by the prohibitions against enacting measures that violate the separation of powers between legislative, executive, and judicial branches. On this subject, Arizona has a considerable body of jurisprudence that the majority has overlooked in its attempt to grapple with the Commission’s functions.

D. Separation of powers

¶ 51 I need only advert to a few of this court’s many cases dealing with the doctrine of separation of powers prescribed by article III of our constitution. We recently considered a case in which the validity of a statute was challenged on grounds that the legislature violated article III because, by its power of appointment, it controlled a governmental agency performing an executive function. See State ex rel. Woods v. Block, 189 Ariz. 269, 942 P.2d 428 (1997). We adopted a four-part test “to determine if one branch of government ‘is exercising “the powers properly belonging to either of the others.” ’ ” Id. at 276, 942 P.2d at 435, quoting J.W. Hancock Enterprises v. Arizona State Registrar of Contractors, 142 Ariz. 400, 405-06, 690 P.2d 119, 124-25 (1984), and Ariz. Const, art. III. Approving a previous opinion from our court of appeals, we said that when a

“statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented.” The court is to evaluate the following factors: the “essential nature” of the powers being exercised, “the degree of control by the legislative department in the exercise of the power,” the objective of the Legislature, and the practical consequences of the action, if available. This ... test ... provides “the necessary flexibility to government,” yet “preserves the essential goal of the separation of powers theory,” to prevent “the concentration of the whole power of two or more branches in one body.”

Id. at 276, 942 P.2d at 435, citing and quoting variously from State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786, 792 (1976), and J.W. Hancock, 142 Ariz. at 406, 690 P.2d at 125.

¶ 52 The essential nature of the nominating power to be exercised by the Commission in the present case is executive, rather than judicial, because it is part of the appointment process. Even assuming the Commission is part of the judicial branch, obviously the legislative branch will exercise no control over the Commission’s functions and'actions. The Commission may nominate whomever it wishes for appointment by the executive branch. The objective of the clean elections initiative was to ensure, so far as is possible, a high quality of membership and a lesser degree of partisanship on the Clean Elections Commission. Given that this is also the goal of the Commission in nominating for judicial office, it is plain that the Act’s objective is healthy and does not conflict with any constitutional function. Nor is there any evidence that the practical consequences of giving the Commission the additional nominating power will unduly affect the performance of its constitutionally-assigned duties.

¶53 Thus, I believe the Act withstands challenge under the separation of powers clause. It does not compel a judicial agency to find a certain set of facts or declare a certain principle of law; nor does it impair or affect any adjudicative function. Cf. San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 201-02, 972 P.2d 179, 217-18 (1999) (invalidating statute that purported to require agency with adjudicative functions to find facts and decree law in accordance with legislative rather than judicial standards and findings). With the complexities of today’s government, “some blending of powers is inevitable,” but “the separation of powers doctrine ensures ‘sufficient checks and balances to preserve each branch’s core functions.’ ” Id. at 211, 972 P.2d at 195 (quoting J.W. Hancock, 142 Ariz. at 405, 690 P.2d at *529124). In the present case, as in others, the exercise of the power given to the Commission seems “practical and not intrusive upon the court” so that there is no usurpation of the power and no violation of article III. Martin v. Reinstein, 195 Ariz. 293, 322, 987 P.2d 779, 808 (1999) (upholding legislature’s selection of rules to apply to new civil commitment procedure).

¶ 54 The distinction between what is constitutionally allowed by the separation of powers doctrine becomes apparent when we compare Section II of the majority opinion, from which I dissent, with Section V, in which I join. Section V holds that the portion of the Act giving judges of this court power to appoint members of the Clean Elections Commission violates article III and for the first time applies our jurisprudence on separation of powers. It holds that under Block and J.W. Hancock, justices of this court may not be given power to appoint members of an executive agency whose work, when challenged, would be ultimately reviewable by this court.

¶ 55 The present case is not comparable. The Commission has no adjudicative power or responsibility. Its members are not judicial officers, and political affiliation must be considered in both their appointment and in the performance of their duties. See ante ¶32 and compare with article VI, § 36(A). The nomination of slates from which political office holders will appoint members of the Clean Elections Commission is not much different from the Commission’s constitutional function to prepare slates of nominees for the Governor to appoint to judicial office. Thus, in my view, Section II of the majority opinion is incompatible with Section V. The principles of Section V ought to have been applied to the nomination process as well as the appointment process.

¶ 56 The problem with the majority’s opinion is that it may well initiate a search for implied prohibitions to the state’s plenary legislative power — a search that will not stop, I am afraid, with this case. From this point forward, I fear, unhappy litigants will be able to argue, with basis in precedent, that a statute is unconstitutional merely because the constitution has not expressly authorized the exercise of a particular legislative power even though it has granted other and similar powers to the legislative branch. If, in the future, this court will imply constitutional restraints other than those arising from the separation of powers clause and from conflict with constitutional text, we shall today have created a pernicious doctrine that will eventually have to be curbed, if not overthrown in its entirety.

¶ 57 Thus, I dissent from Section II of the majority’s opinion. I would find the assignment of duties to the Commission was valid. I therefore néed not join in the severability discussion of Section III but do join in the rest of the opinion.

CONCURRING: WILLIAM E. DRUKE, Judge. Chief Justice THOMAS A. ZLAKET and Vice Chief Justice CHARLES E. JONES did not participate in the determination of this matter. Pursuant to article VI, section 3 of the Arizona Constitution, the Honorable NOEL A. FIDEL, Judge of the Arizona Court of Appeals, Division One, and the Honorable WILLIAM E. DRUKE, Judge of the Arizona Court of Appeals, Division Two, were designated to sit in their stead.

. As noted in the previous paragraph, in approving Frohmiller and Cox, the majority ignores the positive holding of these cases that in state constitutional law the express grant of power does not raise any implication that related powers are denied because not expressly granted. Cox, 73 Ariz. at 96, 237 P.2d at 821-22. In Cox, we expressly rejected that idea and the cases standing for that proposition. Id. at 95, 237 P.2d at 821. We adopted instead the following in answer to the argument that because the constitution granted the right to appeal only from cases arising in inferior courts, by implication it prohibited the legislature from granting a right to appeal from decisions by executive tribunals:

When the right is neither given nor denied by the Constitution, it is then within the discretion of the legislative authority to grant it or take it away, to enlarge or circumscribe the remedy, and to say in what cases, and under what circumstances, and whence appeals may be taken.

Id. (quoting Hoeye v. Willis, 15 Ariz. 257, 259-60, 138 P. 15, 16(1914)).