Bennett v. Napolitano

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-