SUPREME COURT OF ARIZONA
En Banc
THE FORTY-SEVENTH LEGISLATURE OF )
THE STATE OF ARIZONA; THE )
ARIZONA STATE SENATE; THE )
ARIZONA HOUSE OF REPRESENTATIVES; )
KEN BENNETT, individually and as )
President, Arizona State Senate; ) Arizona Supreme Court
and JAMES P. WEIERS, individually ) No. CV-06-0079-SA
and as Speaker, Arizona House of )
Representatives, )
)
Petitioners, ) O P I N I O N
)
v. )
)
JANET NAPOLITANO, Governor of )
the State of Arizona; ARIZONA )
DEPARTMENT OF ADMINISTRATION and )
WILLIAM BELL, Director; and )
ARIZONA STATE PERSONNEL BOARD )
and JEFF GRANT, Chair, )
)
Respondents. )
)
__________________________________)
Special Action
JURISDICTION ACCEPTED; RELIEF GRANTED
________________________________________________________________
MEAGHER & GEER, P.L.L.P. Scottsdale
By Gary L. Lassen
Thomas H. Crouch
Attorneys for the 47th Legislature of the State of Arizona, the
Arizona State Senate, the Arizona House of Representatives, Ken
Bennett, and James P. Weiers
OFFICE OF THE GOVERNOR Phoenix
By Timothy A. Nelson, General Counsel
Nicole C. Davis, Deputy General Counsel
And
PERKINS COIE BROWN & BAIN P.A. Phoenix
By Paul F. Eckstein
Joel W. Nomkin
Charles A. Blanchard
Lee Stein
Attorneys for Governor Janet Napolitano
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary O’ Grady, Solicitor General
Attorneys for Arizona Department of Administration and William
Bell, Director, and Arizona State Personnel Board and Jeff
Grant, Chair
RYLEY CARLOCK & APPLEWHITE Phoenix
By N. Warner Lee
John M. Fry
Attorneys for Amicus Curiae National Conference of State
Legislatures
OSBORN MALEDON, P.A. Phoenix
By Diane M. Johnsen
Thomas L. Hudson
Diane M. Meyers
Attorneys for Amicus Curiae National Governors Association
M c G R E G O R, Chief Justice
¶1 This case requires us to decide whether the
gubernatorial veto of a portion of a bill related to state
employee compensation exceeded the Governor’s item veto power
under Article 5, Section 7 of the Arizona Constitution. We
conclude that the vetoed provision is not an item of
appropriation subject to the gubernatorial item veto.
I.
¶2 On January 25 and 26, 2006, the Forty-seventh
Legislature (the Legislature) passed House Bill 2661 (HB 2661)
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as an emergency measure.1 Section 1 of HB 2661 expressed the
Legislature’s intent to grant state employees a pay raise, and
Section 6 appropriated money for employee salary adjustments.
HB 2661, 47th Leg., 2d Reg. Sess. (Ariz. 2006). Section 5 of HB
2661 (Section 5) amended Arizona Revised Statutes (A.R.S.)
section 41-771 (2004) and exempted certain employees hired after
December 31, 2006, from the state merit system. Id.
¶3 On January 30, 2006, the Governor vetoed a portion of
Section 5.2 The Governor’s veto message stated that the item
“would have created an additional expense to the state” because
exempt employees accrue leave differently than do merit system
employees.
¶4 On February 2, 2006, by separate votes, each chamber
of the Legislature authorized its presiding officer to bring an
action on behalf of the Legislature to challenge the
constitutional validity of the Governor’s item veto of Section
5. Senate President Ken Bennett and Speaker of the House James
Weiers then brought this special action, acting both
individually and on behalf of the Legislature.
1
The Arizona Constitution requires a two-thirds vote in each
legislative chamber to pass a bill as an emergency measure.
Ariz. Const. art. 4, pt. 1, § 1(3).
2
The Governor item vetoed the portion of Section 5 that
adopted a substantive change to A.R.S. § 41-771 by adding a new
class of employees to those exempt from the state merit system.
The Governor left intact the remaining minor legislative changes
made by Section 5.
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II.
¶5 In deciding whether to accept jurisdiction of this
special action, we consider several questions. Because
resolution of some of these questions turns on whether this
action involves legal or political issues, we define first the
nature of the issues raised.
¶6 The Legislature asks us to determine whether Section 5
constitutes an “item of appropriation of money” within the
meaning of Article 5, Section 7 of the Arizona Constitution.
The Legislature argues that if the provision is not an item of
appropriation, then the Governor’s item veto power under the
Arizona Constitution does not extend to Section 5. These
issues, asserts the Legislature, are purely legal issues and
appropriate for this Court’s consideration. The Governor, in
contrast, argues that we can resolve the issues presented only
by entering the political arena and that the Legislature has
attempted to transform a political dispute into a constitutional
question.
¶7 “Political questions,” broadly defined, involve
decisions that the constitution commits to one of the political
branches of government and raise issues not susceptible to
judicial resolution according to discoverable and manageable
standards. See Baker v. Carr, 369 U.S. 186, 217 (1962). A
determination that an issue is a political question is “very
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different from determining that specific [governmental] action
does not violate the Constitution. That determination is a
decision on the merits that reflects the exercise of judicial
review, rather than the abstention from judicial review that
would be appropriate in the case of a true political question.”
U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 458 (1992). A
governor’s decision whether to exercise a veto and a
legislature’s decision whether to attempt to override a veto
clearly are political questions; both involve decisions
committed to their respective branches of government. This
case, however, does not involve a comparable decision because it
asks us to decide whether the constitution permitted the
Governor to exercise her veto power. The political question
doctrine, therefore, provides no basis for judicial abstention
in this matter.
¶8 We agree with the Legislature that this petition
presents purely legal questions. To determine whether a branch
of state government has exceeded the powers granted by the
Arizona Constitution requires that we construe the language of
the constitution and declare what the constitution requires.
Such questions traditionally fall to the courts to resolve. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)
(recognizing that “[i]t is emphatically the province and duty of
the judicial department to say what the law is”). Although each
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branch of government must apply and uphold the constitution, our
courts bear ultimate responsibility for interpreting its
provisions. See State v. Casey, 205 Ariz. 359, 362 ¶ 8, 71 P.3d
351, 354 (2003) (stating that interpretation of the state
constitution is the courts’ province).
¶9 Our conclusion that determining the validity of an
item veto presents a justiciable legal issue breaks no new legal
ground. We have, on many occasions, considered whether
particular gubernatorial actions exceeded a governor’s
constitutional authority. See, e.g., Rios v. Symington, 172
Ariz. 3, 5, 833 P.2d 20, 22 (1992) (reviewing a legislator’s
challenge to gubernatorial item vetoes); Black & White Taxicab
Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139 (1923)
(reviewing governor’s veto of the legislature’s tax imposition);
Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923) (accepting
jurisdiction to determine the scope of the governor’s veto
power); Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773 (1915)
(reviewing governor’s item veto of part of a general
appropriations bill). In deciding whether to accept
jurisdiction and resolve the substantive issues raised in this
action, therefore, we begin with the understanding that the
action raises legal, not political, issues.
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A.
¶10 This Court has original jurisdiction to issue
extraordinary writs against state officers. Ariz. Const. art.
6, § 5; Rios, 172 Ariz. at 5, 833 P.2d at 22. A party seeking
such relief must proceed by way of a special action. See Ariz.
R.P. Spec. Act. 1. As we noted in Rios, “[i]n limited
circumstances, a judicial proceeding by way of special action
may be appropriate to test the constitutionality of executive
conduct.” 172 Ariz. at 5, 833 P.2d at 22. We thus have
jurisdiction to grant the requested relief.
¶11 Whether to accept jurisdiction, however, remains a
highly discretionary decision. State Bar Committee Note, Ariz.
R.P. Spec. Act. 3; see also McKaney v. Foreman ex rel. County of
Maricopa, 209 Ariz. 268, 275 ¶ 35, 100 P.3d 18, 25 (2004). In
this case, several factors argue in favor of accepting
jurisdiction. The issues presented are of public importance:
Limiting the actions of each branch of government to those
conferred upon it by the constitution is essential to
maintaining the proper separation of powers. See Ariz. Const.
art. 3 (stating that Arizona’s three branches of government
“shall be separate and distinct, and no one of such departments
shall exercise the powers properly belonging to either of the
others”). Moreover, we last considered the scope of the
Governor’s item veto authority fifteen years ago in Rios, and
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the two political branches obviously disagree in good faith
about the scope and meaning of that opinion, making the issues
raised here likely to recur.3 Because of these exceptional
circumstances, we conclude that this is one of those rare cases
that justify the exercise of our special action jurisdiction.
B.
¶12 The fact that this action raises issues appropriate
for our consideration does not end our inquiry. We next
consider whether the Legislature has standing to bring this
action. Although “we are not constitutionally constrained to
decline jurisdiction based on lack of standing,” Sears v. Hull,
192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998), “[c]oncern
over standing is particularly acute” when “legislators challenge
actions undertaken by the executive branch,” Bennett v.
Napolitano, 206 Ariz. 520, 525 ¶ 20, 81 P.3d 311, 316 (2003).
Good reason exists for our caution: “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.” Bennett, 206 Ariz. at 525 ¶ 20, 81 P.3d
at 316.
¶13 The Governor argues that these petitioners, like those
in Bennett, lack standing. In Bennett, four state legislators,
3
See cases cited supra ¶ 9.
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including the President of the Senate and the Speaker of the
House of Representatives, brought a special action to challenge
the governor’s veto of specific items in a general
appropriations bill. Id. at 522 ¶ 3, 81 P.3d at 313. They
alleged, as do these petitioners, that the governor had exceeded
her veto authority under the Arizona Constitution. Id. We held
that the legislators lacked standing as individuals because they
failed to show any particularized injury: “[N]o legislator’s
vote was nullified by interference in the legislature” and the
injury claimed was, “at most, an institutional injury.” Id. at
526 ¶¶ 24, 26, 81 P.3d at 317. The legislators also failed to
establish standing to assert a claim of injury to the
legislature as a whole, because the four members of the
legislature “ha[d] not been authorized by their respective
chambers to maintain th[e] action.” Id. at 526-27 ¶¶ 24, 29, 81
P.3d at 317-18. Failing to find any prudential concerns that
compelled a consideration of the merits, we concluded that
Bennett was “not the rare case in which waiver of standing [was]
proper.” Id. at 527 ¶ 31, 81 P.3d at 318.
¶14 The situation here differs in several significant
respects from that in Bennett. First, in contrast to Bennett,
here the Legislature has alleged a particularized injury to the
legislative body as a whole. The United States Supreme Court
considered a similar situation in Coleman v. Miller, 307 U.S.
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433 (1939),4 an action brought by twenty-one state senators,
twenty of whom had voted against ratifying a proposed
constitutional amendment. Id. at 436. Because twenty senators
also had voted for the amendment, the matter failed to pass.
Id. The lieutenant governor broke the tie by voting in favor of
the resolution, and the twenty senators opposed to ratification
alleged that the lieutenant governor’s vote exceeded his
authority. Id. The Court held that the bloc of legislators who
voted against ratification had standing to bring the action
because their combined votes, sufficient absent the executive
vote to defeat ratification, had “been overridden and virtually
held for naught . . . .” Id. at 438; cf. Raines v. Byrd, 521
U.S. 811, 821-22 (1997) (characterizing Coleman as holding that
legislators who sued as a bloc and had sufficient votes to
defeat legislative action had standing to assert a claim of
institutional injury). The circumstances we consider here are
analogous.
¶15 A majority of the members of the legislature can pass
legislation, Ariz. Const. art. 4, pt. 2, § 15, subject to the
governor’s veto power. If, as the Legislature asserts, the
Governor’s item veto was unconstitutional and thus invalid, the
4
Although federal jurisprudence on issues of standing does
not bind this Court, we regard federal decisions as instructive.
Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 22, 81 P.3d 311, 316
(2003).
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Legislature’s right to have the votes of a majority given effect
has been overridden and the Legislature, as an institution, has
sustained a direct injury to its authority to make and amend
laws by a majority vote.
¶16 Second, we held in Bennett that four of ninety
legislators could not bring an action that allegedly belonged to
the legislature as a whole “without the benefit of legislative
authorization . . . .” 206 Ariz. at 527 ¶ 29, 81 P.3d at 318.
In this case, both the House of Representatives and the Senate
authorized the Forty-seventh Legislature to challenge the
Governor’s item veto of Section 5 of HB 2661, making it clear
that the Legislature as a body intended to challenge the
Governor’s action.5
¶17 Contrary to the Governor’s arguments, the
Legislature’s failure to attempt to override the item veto does
not preclude a finding that it has standing to bring suit. In
Bennett, we considered the legislature’s failure to attempt an
override as a prudential concern that indicated we should not
waive the lack of standing present there. Id. at ¶ 34. In this
5
The Senate President and House Speaker also seek standing
as individuals. We previously rejected the argument that the
President and the Speaker have standing to bring suit as
individuals on behalf of the entire legislative body. See
Bennett, 206 Ariz. at 526-27 ¶ 28, 81 P.3d at 317-18 (holding
that legislators lacked standing as individuals to litigate a
claim of the legislature as a whole).
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case, if the Governor did, in fact, exceed her item veto
authority, the Legislature should not be put to the task of
attempting to override an invalid veto before being able to
challenge an allegedly unauthorized action in court. The
alleged injury to the Legislature as a body occurred, if at all,
when the Governor vetoed legislation approved by a majority of
each house. The existence of the injury does not depend upon
and is not affected by whether the Legislature attempted to
override the veto.
¶18 Based on these circumstances, we conclude that the
Legislature has alleged a direct institutional injury and has
standing to challenge the validity of the Governor’s item veto
of Section 5 of HB 2661.6
III.
¶19 Article 5, Section 7 of the Arizona Constitution
defines the governor’s item veto power. Under the terms of the
constitution, the governor may veto “items of appropriations of
money . . . while approving other portions of [a] bill.” Ariz.
Const. art. 5, § 7. An appropriation is “the setting aside from
the public revenue of a certain sum of money for a specified
6
Because we find that the Legislature as a whole has
established standing to bring suit, we need not address the
prudential concerns outlined in Bennett, 206 Ariz. at 527-29 ¶¶
31-40, 81 P.3d at 318-20, which allow us to waive the standing
requirement.
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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, 172 Ariz. at 6, 833 P.2d at
23 (quoting Hunt v. Callaghan, 32 Ariz. 235, 239, 257 P. 648,
649 (1927)) (internal quotation marks omitted). “[N]o specific
language is necessary to make an appropriation, for the test is
. . . whether or not the people have expressed an intention that
the money in question be paid.” Windes v. Frohmiller, 38 Ariz.
557, 560, 3 P.2d 275, 276 (1931).
¶20 The setting aside of a certain sum of public revenue
can occur in two ways: The legislature can authorize spending
from the general fund or it can authorize payments of
ascertainable amounts from a special fund.7 See Crane v.
Frohmiller, 45 Ariz. 490, 499, 45 P.2d 955, 959 (1935); accord
Ryan v. Riley, 223 P. 1027, 1029 (Cal. Dist. Ct. App. 1924)
(noting that an “appropriation must be specific both as to
purpose and amount”). If the legislature chooses to appropriate
public revenues by setting aside monies from a defined special
fund, “no limit need be stated in the act authorizing the
expenditures and specifying for what purpose the money is to be
expended.” Crane, 45 Ariz. at 499, 45 P.2d at 959; see also
7
Neither side suggests that the Rios discussion of
reductions to or transfers from previously made appropriations,
see Rios v. Symington, 172 Ariz. 3, 8-9, 833 P.2d 20, 25-26
(1992), applies to the facts of this case.
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Rios, 172 Ariz. at 8, 833 P.2d at 25 (holding that creation of
several special funds were appropriations although the enabling
statutes did not themselves specify a sum certain).
¶21 Section 5 amends A.R.S. § 41-771, the statute that
identifies those groups of employees who are exempt from the
state merit system. It adds “correctional officers and juvenile
correctional officers, state officers and employees who are
appointed or employed after December 31, 2006 and who are at a
pay grade of twenty-four or above” to the class of exempt
employees.
¶22 On its face, Section 5 fails to set aside any sum from
the general fund. That fact, however, does not preclude finding
that the statute constitutes an item of appropriation if it sets
aside revenue from some other specific limited source. In Rios,
for example, we held that A.R.S. § 41-511.26 was an
appropriation because when viewed in conjunction with the
federal statute, the vetoed section “authorize[d] the creation
of a fund” and granted authority to spend the monies in that
fund. 172 Ariz. at 8, 833 P.2d at 25. We concluded that
although section 41-511.26 did not specify a sum on its face,
the legislative intent to set aside a certain sum for a
specified object was clear when we viewed the statute in
conjunction with the federal statute incorporated into the text
of section 41-511.26. Id.
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¶23 Unlike the provisions considered in Rios, Section 5
fails to specify any fund from which payment for accrued leave
or, more generally, payment to exempt employees may be made.
Instead, it merely defines a class of employees that will be
excluded from the state merit system.
¶24 The Governor argues that this failure to set aside
funds does not disqualify Section 5 from being an appropriation
because the “combined effect of the vetoed language and the
employment practices statutes [in Title 23] . . . turns the
vetoed language into a spending authorization.” She asserts
that, under current administrative regulations, exempt employees
accrue more leave than do merit system employees and, because
the state must pay separating employees for accrued leave,
Section 5 will impose additional costs to the state unrelated to
employee salaries.
¶25 As the Governor correctly points out, A.R.S. § 23-
353.B (1995) requires that an employee be paid “in the usual
manner all wages due [to] him” upon leaving the service of an
employer, and A.R.S. § 23-350.5 (1995) defines wages as
including vacation pay. The statutes, therefore, do obligate
the state to make certain payments to separating employees. The
Governor’s argument, however, incorrectly equates the obligation
imposed by the statutes with an appropriation to fulfill the
obligation. See Crane, 45 Ariz. at 498, 45 P.2d at 959 (“A
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promise to make an appropriation is not an appropriation. . . .
The utmost that can be claimed for the act under consideration
is that it pledges the good faith of the state to the making of
an appropriation.”); Millett v. Frohmiller, 66 Ariz. 339, 344,
188 P.2d 457, 461 (1948) (noting that statute authorizing agency
to employ persons did not itself constitute an appropriation).
The employment statutes may obligate the state to make certain
payments, but they do not set aside any sum of money from the
public revenue and thus cannot be regarded as making an
appropriation.8
¶26 In this case, Section 5, even when considered in
conjunction with other statutes, does not set aside a defined
amount of public revenue from any specific funding source. We
8
Even the alleged fiscal impact of Section 5 results not
from the statute but rather from state administrative rules and
regulations and from employee manuals adopted by the executive
branch. See Ariz. Admin. Code (A.A.C.) R2-5-403.B (non-exempt
employees accrue annual leave from 3.7 hours to 6.47 hours bi-
weekly, based on the number of years of service); A.A.C. R2-5-
403.D (non-exempt employees may accrue up to 240 hours of
compensatory leave each calendar year); Arizona Department of
Administration, Human Resources Policies and Procedures (ADOA
Manual), art. 4, § B (2004), available at
http://www.hr.state.az.us/Homepagelinks/policies/content.htm
(exempt employees accrue annual leave at a rate of 6.47 hours bi-
weekly and have a maximum accrual of 320 hours of annual leave
per calendar year). Because the amount of annual leave to which
employees, both exempt and non-exempt, are entitled is defined
in administrative rules and procedures rather than by statute,
see A.A.C. R2-5-403; ADOA Manual, art. 4, § B, the fiscal impact
of Section 5 derives from matters committed to the executive
branch, see A.R.S. § 41-703 (2004) (indicating that the governor
oversees the direction, control, and operation of the Department
of Administration).
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conclude, therefore, that Section 5 was not subject to the
Governor’s item veto power.
IV.
¶27 Because Section 5 of HB 2661 is not an appropriation,
the Governor’s item veto of that provision exceeded her
constitutional authority and is invalid. Accordingly, we order
that Section 5 be given full force and effect.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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