SUPREME COURT OF ARIZONA
En Banc
KEN BENNETT, President, Arizona )
State Senate; FRANKLIN “JAKE” )
FLAKE, Speaker, Arizona House of )
Representatives; TIMOTHY BEE, )
Majority Leader, Arizona State )
Senate; EDDIE FARNSWORTH, )
Majority Leader, Arizona House of )
Representatives, )
)
Petitioners, ) Arizona Supreme Court
) No. CV-03-0245-SA
v. )
)
JANET NAPOLITANO, Governor of )
the State of Arizona; ARIZONA )
DEPARTMENT OF ADMINISTRATION and )
BETSEY BAYLESS, Director; GENERAL )
ACCOUNTING OFFICE of the Arizona )
Department of Administration; )
D. CLARK PARTRIDGE, Arizona State )
Comptroller; ARIZONA DEPARTMENT OF )
AGRICULTURE and JACK PETERSON, )
Director; ARIZONA DEPARTMENT OF ) O P I N I O N
ECONOMIC SECURITY and WILLIAM )
BELL, Acting Director; ARIZONA )
DEPARTMENT OF HEALTH SERVICES and )
CATHERINE R. EDEN, Director; )
ARIZONA STATE LAND DEPARTMENT and )
MARK WINKELMAN, Commissioner; )
ARIZONA HEALTH CARE COST )
CONTAINMENT SYSTEM and C.J. )
HINDMAN, Acting Director; ARIZONA )
DEPARTMENT OF EDUCATION and TOM )
HORNE, Superintendent; and )
ARIZONA STATE PARKS BOARD, )
)
Respondents. )
)
___________________________________)
Special Action
JURISDICTION ACCEPTED; RELIEF DENIED
_________________________________________________________________
SNELL & WILMER L.L.P. Phoenix
by John J. Bouma
Andrew F. Halaby
Danielle J. Malody
Jeffrey C. Warren
Attorneys for Petitioners
Office of the Governor Phoenix
by Timothy A. Nelson, General Counsel
Nicole D. Davis, Deputy General Counsel
and
LEWIS AND ROCA LLP Phoenix
by Scott Bales
Kimberly A. Demarchi
Attorneys for Governor Napolitano
TERRY GODDARD, Attorney General Phoenix
by Mary O’Grady, Solicitor General
Attorneys for Respondent State Agencies
and Related Officials
Logan T. Johnston, III Phoenix
Attorneys for AHCCCS and C.J. Hindman
Arizona Center for Law in the Public Interest Phoenix
by Timothy M. Hogan
Amicus Curiae for School Finance Reform Group
_________________________________________________________________
J O N E S, Chief Justice
I. INTRODUCTION
¶1 On June 12, 2003, the legislature enacted and transmitted
to the governor four bills comprising the state’s operating budget
for fiscal year 2004 -- the general appropriations bill (House Bill
2531) and three omnibus reconciliation bills (ORBs) consisting of the
Public Finance ORB (House Bill 2533), the Education ORB (House Bill
2534), and the Health and Welfare ORB (House Bill 2535).
¶2 On June 17, 2003, the governor item vetoed some thirty-five
-2-
separate provisions from the four bills, and, as required, sent a
message to both legislative chambers stating the reasons for her
vetoes. Ariz. Const. art. V, § 7. On June 19, 2003, with no further
action on the vetoed items, the legislature adjourned sine die.
¶3 On July 15, 2003, petitioners -- state legislators Ken
Bennett, President of the Senate, Franklin “Jake” Flake, Speaker of
the House of Representatives, Timothy Bee, Senate Majority Leader,
and Eddie Farnsworth, House Majority Leader -- brought this special
action challenging the governor’s use of the item veto in twelve
specified instances and alleging, as to each, that the governor
exceeded her veto authority under the Arizona Constitution. On
September 4, 2003, petitioners withdrew their challenge to one of the
twelve vetoes, leaving eleven.
A. The Provisions Vetoed
¶4 Of the eleven vetoes challenged, nine involved provisions
in the general appropriations bill, and two pertained, respectively,
to provisions in the Education and the Health and Welfare ORBs.
1. The General Appropriations Bill
a. Fixed Lump Sum Reductions
¶5 In separate appropriations to five governmental departments
in the general appropriations bill, the legislature provided in each
instance (a) a single operating allocation, (b) various specifically
directed allocations in smaller amounts, and (c) a separate “lump sum
reduction.” In each appropriation, the lump sum reduction required
-3-
the particular department to reduce overall spending by a specified
sum.1 The governor item vetoed each of the five lump sum reductions.2
b. Other Reductions
¶6 The sixth, seventh, and eighth item vetoes directed at the
general appropriations bill also involved reductions in funding. In
the appropriation to the Department of Health Services, the
legislature imposed a $10,000,000 reduction labeled an “offset for
receipts.” 2003 Ariz. Sess. Laws, ch. 262 § 44. The governor vetoed
the offset.
¶7 In the appropriation to the Department of Economic
Security, the legislature imposed a $14,906,000 reduction for
1
The spending reductions for the five departments were
ordered as follows: $531,600 from the Department of
Administration, 2003 Ariz. Sess. Laws, ch. 262, § 4; $566,700 from
the Department of Agriculture, id. § 6; $1,007,500 from the
Department of Economic Security, id. § 29; $2,524,500 from the
Department of Health Services, id. § 44; and $125,000 from the
State Land Department, id. § 54.
2
For example, after the governor’s veto, the appropriation
to the Department of Agriculture appeared as follows:
Sec. 6 DEPARTMENT OF AGRICULTURE
2003-04
FTE positions 250.2
Operating lump sum appropriation $12,436,700
Agricultural employment relations
board 23,300
Animal damage control 65,000
Red imported fire ant 23,200
Lump sum reduction 566,700
Total appropriation –- department of
agriculture $11,981,500
The appropriations to the other four departments were of similar
form and appearance following the vetoes.
-4-
“federal match rate savings.” The legislature explained this
provision:
The reduction associated with the federal match rate change
represents a reduction in the state general fund
appropriation associated with temporary changes to the
federal matching assistance percentage designed to give
fiscal relief to states. There shall be a corresponding
$14,906,000 increase in federal expenditure authority to
the department.
Id. § 29. The governor vetoed the match rate savings reduction.
¶8 In the appropriation to the Department of Health Services,
the legislature imposed a contingency reduction to be taken from the
allocated funds pursuant to the following formula:
If the department receives more than $1,188,000 in federal
317 monies for vaccines purchase for state fiscal year
2003-2004, the state general fund amount of the state
fiscal year 2003-2004 appropriation for the vaccines
special line item equal to the amount by which the federal
monies exceed $1,188,000 up to $576,000 shall revert to the
state general fund.
Id. § 44. The governor vetoed the contingency reduction.
c. Arts Commission Funding
¶9 The ninth and final item veto within the general
appropriations bill involved an appropriation of $1,800,000 to the
Arizona Commission on the Arts. Id. § 9. With this appropriation,
the legislature identified the Heritage Fund as the source of the
funds. Id. The governor vetoed the source but left the
appropriation intact and asserted that, in the absence of a source of
monies, the $1,800,000 would be disbursed from the state general
fund. Petitioners challenge the veto, claiming the governor lacked
-5-
authority to direct monies from the general fund to the Arts
Commission.
2. The Omnibus Reconciliation Bills (ORBs)
a. The Education ORB
¶10 The tenth item veto was directed at the Education ORB in
which the legislature ordered a fifty percent reduction in the amount
of “rapid decline” funding a school district is eligible to receive.
2003 Ariz. Sess. Laws, ch. 264, § 40. The governor vetoed the
reduction.
b. The Health and Welfare ORB
¶11 The eleventh item veto was directed at the Health and
Welfare ORB in which the legislature amended Arizona Revised Statutes
section 36-2907 to remove adult emergency dental care from coverage
under the Arizona Health Care Cost Containment System. 2003 Ariz.
Sess. Laws, ch. 265, § 21. The governor vetoed the amendment.
c. The Public Finance ORB
¶12 Petitioners also raise an issue relating to the Public
Finance ORB which, among other things, appropriated $75,000,000 to be
used as partial reimbursement due a class of Arizona taxpayers,
pursuant to the settlement of a judicial matter.3 2003 Ariz. Sess.
Laws, ch. 263, § 69. The governor vetoed the appropriation, causing
the monies to remain in the general fund. Petitioners concede the
3
See Ariz. Dep’t of Revenue v. Dougherty, 200 Ariz. 515,
29 P.3d 862 (2001).
-6-
validity of this veto but claim the language in the governor’s veto
message will authorize future spending not approved by the
legislature.4
B. Jurisdiction
¶13 The Arizona Constitution gives the governor two distinct
veto powers: (a) a general power, which allows veto of an entire
bill on any subject, and (b) a line item power, which authorizes the
governor to veto “one or more” items of appropriation in “any bill”
that contains “several items of appropriations.” Ariz. Const. art.
V, § 7.
¶14 Petitioners claim the eleven vetoed items were not
appropriations.5 They urge that we hold the vetoes unconstitutional
and that we order the governor and all affected state officers and
departments to implement the legislature’s budget package without
regard to the vetoes. This court has original jurisdiction over the
issuance of extraordinary writs against state officers. Ariz. Const.
art. VI, § 5(1); see also Rios v. Symington, 172 Ariz. 3, 833 P.2d 20
4
Special action jurisdiction is not appropriate to review
the language used by the governor in the veto message; it will be
appropriate to consider the issue only if and when the executive
branch of government undertakes spending to which an objection is
properly made.
5
An appropriation is “the setting aside from the public
revenue of a certain sum of money for a specified object, in such
manner that the executive officers of the government are authorized
to use that money, and no more, for that object, and no other.”
Rios v. Symington, 172 Ariz. 3, 6, 833 P.2d 20, 23 (1992) (quoting
Hunt v. Callaghan, 32 Ariz. 235, 239, 257 P. 648, 649 (1927)
(citations omitted in Rios)).
-7-
(1992).
¶15 We accept jurisdiction of the petition. We conclude,
however, without reaching the merits, that two threshold questions
determine the outcome of this case: first, whether the petitioners
have demonstrated facts sufficient to achieve requisite standing to
maintain the action; and second, whether prudential concerns dictate
the exercise of judicial restraint such that the court should abstain
from consideration of the dispute.
II. DISCUSSION
A. Standing
¶16 This court has, as a matter of sound judicial policy,
required persons seeking redress in the courts first to establish
standing, especially in actions in which constitutional relief is
sought against the government. Sears v. Hull, 192 Ariz. 65, 71, 961
P.2d 1013, 1019 (1998). In Sears, we denied standing to citizens
seeking relief against the governor because they failed to plead and
prove palpable injury personal to themselves. Id. at 69-70, 961 P.2d
at 1017-18. A contrary approach would inevitably open the door to
multiple actions asserting all manner of claims against the
government.
¶17 In the federal courts, standing requirements are firmly
rooted in Article III of the U.S. Constitution. Indeed, the
founders, at the constitutional convention of 1787, circumscribed
federal jurisdiction carefully with the requirement that matters
-8-
brought before the courts must constitute real “cases or
controversies.” See U.S. Const. art. III, § 2, cl. 1. In short,
cognizable injury personal to those seeking redress would have to be
shown. The case or controversy requirement provides clear
recognition of the separation of powers principle that was central to
the creation of our national government. See The Federalist No. 78
(Alexander Hamilton); see also Allen v. Wright, 468 U.S. 737, 750
(1984). To ensure separation of the powers of government under the
U.S. Constitution, federal courts have consistently established
doctrines “founded in concern about the proper –- and properly
limited –- role of the courts in a democratic society.” Allen, 468
U.S. at 750 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
¶18 The federal standing doctrine requires that a court refrain
from addressing a case on its merits unless the parties can assert
facts that give rise to an actual case or controversy. It is
“perhaps the most important of [the Article III] doctrines.” Id. To
establish federal standing, a party invoking the court’s jurisdiction
“must allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the
requested relief.” Id. at 751.
¶19 Article VI of the Arizona Constitution, the judicial
article, does not contain the specific case or controversy
requirement of the U.S. Constitution. But, unlike the federal
constitution in which the separation of powers principle is implicit,
-9-
our state constitution contains an express mandate, requiring that
the legislative, executive, and judicial powers of government be
divided among the three branches and exercised separately.6 This
mandate underlies our own requirement that as a matter of sound
jurisprudence a litigant seeking relief in the Arizona courts must
first establish standing to sue.
¶20 Concern over standing is particularly acute when, as here,
legislators challenge actions undertaken by the executive branch.
Without the standing requirement, the judicial branch would be too
easily coerced into resolving political disputes between the
executive and legislative branches, an arena in which courts are
naturally reluctant to intrude. See, e.g., Raines v. Byrd, 521 U.S.
811, 819-20 (1997) (“[O]ur standing inquiry has been especially
rigorous when reaching the merits of the dispute would force us to
decide whether an action taken by one of the other two branches of
the Federal Government was unconstitutional.”).
1. Standing as Legislators
¶21 Standing sought by legislators in an action against the
governor is an issue of first impression in Arizona. In Rios, 172
6
Article III of the Arizona Constitution provides:
The powers of the government of the state of Arizona
shall be divided into three separate departments, the
legislative, the executive, and the judicial; and, except
as provided in this constitution, such departments shall
be separate and distinct, and no one of such departments
shall exercise the powers properly belonging to either of
the others.
-10-
Ariz. 3, 833 P.2d 20, a case in which a legislator challenged a
number of item vetoes by the governor, this court accepted
jurisdiction and decided the case. There, however, the governor did
not raise the standing question, and, because courts traditionally do
not address issues not properly raised, we declined, albeit
reluctantly, to address “potential standing issues.” Id. at 5 n.2,
833 P.2d at 22 n.2. By contrast, in the case before us, the standing
question has been squarely raised by the governor and addressed in
reply by the petitioners.
¶22 Although we are not bound by federal jurisprudence on the
matter of standing, we have previously found federal case law
instructive. See Armory Park Neighborhood Ass’n v. Episcopal Cmty.
Servs. in Ariz., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985). Of
particular relevance is Raines v. Byrd, the Supreme Court’s most
recent opinion on whether legislators have standing to sue the
executive branch. 521 U.S. 811.
¶23 Raines involved six members of Congress who brought suit in
federal court challenging the constitutionality of the Line Item Veto
Act, which authorized the President to cancel certain spending
provisions while signing other provisions into law. Id. at 814. Any
provision that might be vetoed by the President remained subject to
override by a two-thirds vote of the Congress. Id.
¶24 The six plaintiffs, having voted against the Act, argued
that the Act infringed on the legislative power granted in Article I
-11-
of the U.S. Constitution. Id. at 816. They claimed standing on the
basis that the Act reduced the “effectiveness” of their votes and
injured them in their official capacity as members of Congress. Id.
The Supreme Court rejected the argument, holding that the members
lacked standing to maintain the action because their alleged injury
was not “particularized” to the individual claimants and was not
sufficiently “concrete” to justify judicial intrusion into a dispute
between the legislative and executive branches. Id. at 829. The
Court reasoned that the injury alleged was “based on a loss of
political power, not loss of any private right,” and therefore the
members suffered no injury personal to themselves. Id. at 821. In
addition, the Court pointed out that the injury claimed was, at most,
an institutional injury and that the six members had not been
authorized to sue on behalf of their respective chambers of the
Congress. Id. at 829.
¶25 In reaching its conclusion, the Supreme Court distinguished
a prior legislative standing case, Coleman v. Miller, 307 U.S. 403
(1939), urged as authority by the six members of Congress, as well as
by the petitioners in the instant case. In Coleman, twenty of forty
Kansas state senators in 1937 voted against ratification of the
proposed Child Labor Amendment to the U.S. Constitution. Id. at 435-
36. The other twenty voted for the Amendment. Id. The tie vote
would mean that ratification had failed in Kansas. Seeking to avoid
failure, Kansas’ lieutenant governor broke the deadlock by providing
-12-
the twenty-first vote in the legislature in favor of ratification.
The twenty opposing senators, joined by a twenty-first, brought suit
challenging the lieutenant governor’s action as unconstitutional.
Id. at 436. On the matter of standing, the Supreme Court found that
if the allegation were true, the senators’ “votes against
ratification [had] been overridden and virtually held for naught
although . . . their votes would have been sufficient to defeat
ratification.” Id. at 438. The twenty senators’ negative votes had
thus been nullified by illegal interference within the legislative
process. Id. at 446. Distinguishing Coleman, the Supreme Court in
Raines found the facts to be quite different. Most importantly, the
votes of the six Raines plaintiffs were not nullified by improper
action in the Congress; rather, they were fully counted as valid but
were simply insufficient in number to defeat the Act. 521 U.S. at
824.
¶26 Similarly, in the case before us, no legislator’s vote was
nullified by interference in the legislature. All votes were
counted, and the budget bills were enacted. The bills were
transmitted to the governor in the normal course. Once enacted, as
in Raines but contrary to Coleman, legislative action on the bills
was complete.
¶27 Further explaining the distinction in Coleman, the Supreme
Court responded to the argument that the President’s veto power
unconstitutionally canceled the members’ votes:
-13-
Even taking [the members of Congress] at their word
about the change in the “meaning” and “effectiveness” of
their vote for appropriations bills which are subject to
the Act, we think their argument pulls Coleman too far from
its moorings. [The members’] use of the word
“effectiveness” to link their argument to Coleman stretches
the word far beyond the sense in which the Coleman opinion
used it. There is a vast difference between the level of
vote nullification at issue in Coleman and the abstract
dilution of institutional legislative power that is alleged
here. To uphold standing here would require a drastic
extension of Coleman. We are unwilling to take that step.
Id. at 825-26.
¶28 Today’s case resembles Raines more closely than it
resembles Coleman. Under the Raines doctrine, “[t]he standing
inquiry focuses on whether the plaintiff is the proper party” to
bring suit, that is, whether a sufficient showing of particularized
injury has been made. Id. at 818. Our four petitioners have shown
no injury to a private right or to themselves personally and are thus
in a position similar to the six members of Congress in Raines. Like
the alleged injury in Raines, petitioners’ injury is “wholly abstract
and widely dispersed,” and as such, is not sufficient to establish
individual standing.
¶29 Nor can these four petitioners assert standing to litigate
claims of injury to the legislature as a whole. The Supreme Court in
Raines found it significant that the six plaintiffs “ha[d] not been
authorized to represent their respective Houses of Congress in th[e]
action.” Id. at 829. In contrast, the twenty-one senators in
Coleman constituted a majority of the Kansas Senate. Petitioners
-14-
here, consisting of four of ninety members of the legislature, have
not been authorized by their respective chambers to maintain this
action. When a claim allegedly belongs to the legislature as a
whole, four members who bring the action without the benefit of
legislative authorization should not, except perhaps in the most
exceptional circumstances, be accorded standing to obtain relief on
behalf of the legislature.
2. Standing as Taxpayers
¶30 We also reject petitioners’ claim to standing as taxpayers.
The petition before us makes no statement or allegation that
petitioners filed the action in their capacity as taxpayers. The
“taxpayer” argument was first raised in petitioners’ reply brief,
relying on Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948).
That case was advanced for the proposition that a taxpayer has
standing to challenge the illegal expenditure of state funds. Id. at
387, 189 P.2d at 213. But Ethington allowed a taxpayer to challenge
a legislative act that expended monies for an unconstitutional
purpose. Id. at 394, 189 P.2d at 217. Petitioners here do not claim
the funds affected by the vetoes are to be spent for an illegal or
unconstitutional purpose; they challenge only the manner in which the
governor’s action affected proposed spending. Whatever the
implications of Ethington, they do not reach the facts before us.
B. Prudential Concerns
¶31 Because the Arizona Constitution does not contain a
-15-
provision analogous to the case or controversy requirement of the
U.S. Constitution, “we are not constitutionally constrained to
decline jurisdiction based on lack of standing.” Sears, 192 Ariz. at
71, 961 P.2d at 1019. But even within the parameters of the state
constitution, we have indicated a willingness to consider the merits
of a case in the absence of a particularized injury “only in
exceptional circumstances, generally in cases involving issues of
great public importance that are likely to recur. The paucity of
cases in which we have waived the standing requirement demonstrates
both our reluctance to do so and the narrowness of this exception.”
Id. The following factors convince us that this is not the rare case
in which waiver of standing is proper.
1. The Dispute Is Political
¶32 First, we are reluctant to become the referee of a
political dispute. Even in Rios, where this court accepted
jurisdiction in a setting in which legitimate standing issues were
never raised, we “caution[ed] that [the court] did not do so
lightly.” We expressed concern that
it would be a serious mistake to interpret our acceptance
of jurisdiction in this cause as a general willingness to
thrust the Court into the political arena and referee on
an . . . [annual] basis the assertions of the power of the
executive and legislative branches in the appropriations
act. . . . [F]uture attempts to invoke this Court’s
jurisdiction on similar grounds will be viewed with great
circumspection.
172 Ariz. at 5, 833 P.2d at 22 (quoting Brown v. Firestone, 382 So.
-16-
2d 654, 671 (Fla. 1980)).
¶33 Our general disinclination to enter political controversy
is heightened by the fact that petitioners here, though leaders in
their respective chambers, represent only four of ninety members of
the legislature.
¶34 In addition, we attach significance to the legislature’s
failure to exercise available political means by seeking to override
the governor’s vetoes, a procedure permitted by Article V, § 7 of the
state constitution. Although the absence of an override attempt is
not per se fatal to petitioners’ argument that the court should waive
the standing requirement, we note that had petitioners attempted the
constitutional remedy available to them, the legislature would have
been able to alleviate some of the court’s concern that we ought not
prematurely enter “the political arena [to] referee . . . the
assertions of the power of the executive and legislative branches.”
Id. (quoting Brown, 382 So. 2d at 671).
2. Method of Structuring Appropriations
¶35 We agree with the petitioners’ argument that the
legislature is free to structure appropriations in ways that it,
alone, shall determine and to express in its own way the intent that
underlies such measures. We conclude, however, that the unusual
method of legislative structuring used in the vetoed reductions at
issue in the instant case is likely a non-recurring event. Indeed,
neither party has offered evidence that the manner of formatting
-17-
these reductions in the current budget cycle has ever before been
utilized by the legislature. As a practical matter, the legislature
may enact future appropriations in ways that avoid reductions as
parts of the appropriation process.
3. The Single Subject Rule of Article IV
¶36 Finally, our decision to abstain from the merits of this
case is in part predicated on the “single subject” rule of Article IV
of the Arizona Constitution. The rule was conspicuously avoided by
the parties in the instant dispute, but was raised in an amicus
curiae brief filed with the court.
¶37 The rule requires that every act passed by the legislature
“embrace but one subject and matters properly connected therewith.”
Ariz. Const. art. IV, pt. 2, § 13.7 This rule, wisely placed, “was
intended to prevent the pernicious practice of ‘logrolling.’” Kerby
v. Luhra, 44 Ariz. 208, 214, 36 P.2d 549, 551 (1934). A bill that
deals with multiple subjects creates a serious “logrolling” problem
because an individual legislator “is thus forced, in order to secure
the enactment of the proposition which he considers the most
important, to vote for others of which he disapproves.” Id. at 214-
7
The single subject rule is also found in section 20 of
Article IV, which requires all appropriations, other than those in
the general appropriations bill, to “be made by separate bills,
each embracing but one subject.” Ariz. Const. art. IV, pt. 2,
§ 20.
-18-
15, 36 P.2d at 552.8
¶38 Moreover, single subject violations create a separate
problem, equally serious, in connection with the governor’s veto
power. A governor presented with a multi-subject bill inevitably
faces a “Hobson’s choice.” She must either veto the entire bill,
including the measures she supports, or accept the entire bill,
including the measures she opposes. In addition, lumping multiple
subjects in the same bill tends to undermine the legislative process
by stifling valuable debate within government’s most important forum
of persuasion and policymaking, the legislature.
¶39 The issue is whether the governor is authorized to item
veto provisions of the ORBs. The problem arises because the relevant
ORBs address multiple subjects. Had the legislature addressed these
subjects in separate bills, there would be no need to determine
whether they were or were not appropriations. Thus, the problem we
face is in part created by apparent non-adherence to the single
8
An example of this problem appears graphically in one
measure inserted in the Education ORB that had been previously
treated in a separate bill. In May 2003, the legislature passed
and transmitted to the governor House Bill 2012, which made changes
to the formula for school building renewal funding. H.B. 2012,
46th Leg., 1st Reg. Sess. (Ariz. 2003). The governor, exercising
her general power, vetoed the entire bill. In June 2003, the
legislature passed and transmitted to the governor the Education
ORB, which included, among other things, the same measure amending
the formula for school building renewal funding that was vetoed one
month earlier in House Bill 2012. 2003 Ariz. Sess. Laws, ch. 264,
§ 10. This time, the governor did not veto the entire Education
ORB. Instead, she item vetoed only the amended formula.
-19-
subject rule in the legislative process.9
¶40 We understand that failure to adhere to the single subject
rule does not validate improper use of the governor’s veto power.
But at the least, we are also reluctant to confront the parameters of
that power in a case in which there are also legitimate questions
about whether the ORBs themselves are constitutional. Thus, any
decision on our part holding that executive misuse of the veto power
occurred under Article V would of necessity require that we
simultaneously validate legislation which appears to conflict with
the single subject rule of Article IV. There can be no virtue in
that result.
III. CONCLUSION
¶41 We hold, based on the facts presented, that petitioners
lack standing to challenge the governor’s vetoes made in connection
9
For example, the Public Finance ORB enacts the following
changes, among others: an authorization for state lottery fund
monies to be used for “Abstinence Only” education programs, 2003
Ariz. Sess. Laws, ch. 263, § 2; a direction to the Director of the
Department of Mines and Mineral Resources to establish adult
entrance fees to the museum, id. § 13; an authorization to the
Department of Transportation to enter into intergovernmental
agreements with Maricopa County to design, reconstruct, and improve
a county highway bridge, id. §§ 15, 22; the removal of the Liquor
Control Division from the Department of Public Safety, id. § 46; an
appropriation of $75,000,000 partially to cover an income tax
refund, id. § 69; and a direction to the Department of Public
Safety to transfer two vehicles with less than 80,000 miles from
the Criminal Investigations Division to the Department of Liquor
Licenses and Control, id. § 97. Similarly, the Education ORB and
the Health and Welfare ORB, on their face, also appear to address
multiple subjects. See 2003 Ariz. Sess. Laws, chs. 264, 265.
-20-
with the legislative budget package for fiscal year 2004. Although
we may waive the standing requirement in an exceptional case, we
decline to do so here.
¶42 The record contains evidence that a measure of
accountability for the current dispute can properly be assessed
against both sides. Thus, in summary, even where instances of misuse
of the governor’s veto power may be present as alleged, the record
also reflects what appear to be non-recurring instances of
unconventional budget structuring, failure to attempt legislative
override or to obtain authorization to maintain the action, and
numerous apparent violations of the single subject rule in the ORBs.
Accordingly, notions of restraint prompt us to abstain from further
consideration of this matter. Relief is denied.
__________________________________________
Charles E. Jones, Chief Justice
CONCURRING:
_____________________________________
Ruth V. McGregor, Vice Chief Justice
_____________________________________
Rebecca White Berch, Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
Andrew D. Hurwitz, Justice
-21-
-22-
Bennett v. Napolitano
Court: Arizona Supreme Court
Date filed: 2003-12-04
Citations: 81 P.3d 311, 206 Ariz. 520
Copy CitationsCombined Opinion