The superior court granted summary judgment for defendants in plaintiffs' action to enjoin the Secretary of State from printing an initiative measure on the November 1986 ballot. We affirmed this judgment on September 10, 1986, and indicated that a formal written opinion would follow.
Two issues are presented for review:
1) Whether the proposed initiative violates the single-subject rule of article 21, section 1 of the Arizona Constitution;
2) Whether the proposed initiative violates A.R.S. § 19-123(A)(1).
In July 1986, Citizens for Fair and Sensible Liability Laws (Citizens), a non-profit corporation, filed petitions with the Secretary of State to place the following initiative measure on the ballot for the November 1986 general election:
Be it enacted by the People of the State of Arizona:
Soon after the filing of the initiative petition, Gwendolyn Tilson and Robert McMath (Tilson) filed an action in superior court seeking to enjoin the Secretary of State from printing the measure on the ballot. The trial court allowed Citizens to intervene in the case as defendants. Citizens moved for summary judgment and the trial court granted the motion, thereby denying Tilson's request for an injunction. Tilson appealed.
Before we reach the issues raised by Tilson, the issue of our jurisdiction to review the legality of the proposed initiative prior to its approval by the voters has been raised. Under our constitution, the people did not grant to the legislature plenary law-making power. They reserved to themselves the powers of initiative and referendum. Ariz. Const. art. 4, Pt. 1 § 1. The legislative power of the people is as great as that of the legislature. See Ariz. Const. art. 22, § 14. Just as under the separation of powers doctrine the courts are powerless to predetermine the constitutionality of the substance of legislation, so also they are powerless to predetermine the validity of the substance of an initiated measure. See State v. Osborn, 16 Ariz. 247, 249-51, 143 P. 117, 118-19 (1914); accord Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989 (1957). The courts have the power to determine what the law is and what the constitution contains, but not what it should contain. Osborn, 16 Ariz. at 251, 143 P. at 118.
However, the courts do have the duty of ensuring that the constitutional and statutory provisions protecting the electoral process (i.e., the manner in which an election is held) are not violated. See Kerby v. Griffin, 48 Ariz. 434, 444-46, 62 P.2d 1131, 1135-36 (1936). Indeed, we have held that the procedures leading up to an election cannot be questioned after the people have voted, but instead the procedures must be challenged before the election is held. Id. Before an election, the court's authority to intervene and enjoin the enactment of an initiative is limited to those instances "where an initiative petition is defective in form or does not bear the number of signatures of qualified electors required by Article 4, Part 1, § 1, Constitution of Arizona, or where the prescribed procedure has not been followed...." Iman v. Bolin, 98 Ariz. 358, 365, 404 P.2d 705, 709 (1965); see also Williams v. Parrack,
Neither issue before the court requires inquiry into the legality of the substance of the proposed constitutional amendment. Both issues deal with whether the form of the initiative conforms with the constitutional and statutory provisions regulating the initiative process. See Ariz. Const. art. 21, § 1; A.R.S. § 19-123(A)(1). Therefore, we have jurisdiction pursuant to A.R.S. § 19-122(C) to hear the limited issues raised by Tilson as to the form of the proposed initiative, but we express no opinion on the legality of the substance of the amendment.
Article 21 of the Arizona Constitution establishes the procedure for amending the state constitution. The last sentence of the section provides:
Ariz. Const. art. 21, § 1. Tilson contends that the proposed initiative violates this single-subject rule because it contains four separate and distinct propositions, none of which is required for proper operation of the others.
In the leading case interpreting article 21, section 1, this court recognized that this constitutional provision "was intended to prevent the pernicious practice of `log-rolling' in the submission of a constitutional amendment." Kerby v. Luhrs, 44 Ariz. 208, 214, 36 P.2d 549, 551 (1934). Log-rolling is the attempt to combine several dissimilar propositions into one proposed amendment so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.
Although the constitutional mandate in article 21, section 1 is clear, the difficult question, as recognized by this court in Kerby, "is to determine what test shall be used to ascertain whether there are in reality several amendments submitted under the guise of one." Id. at 216, 36 P.2d at 552. Kerby went on to clarify the test that had been initially laid out in State v. Timme, 54 Wis. 318, 11 N.W. 785 (1882), and later applied by other jurisdictions:
Kerby, 44 Ariz. at 221, 36 P.2d at 554.
Applying this test, the court in Kerby rejected the initiative proposal before it on the basis that no two of the sections were "necessarily required for a proper operation of the third" and on their face they had "no direct relation to each other." Id. at 222, 36 P.2d at 554 (emphasis in original). Furthermore, the proposed amendment submitted "three separate propositions upon which each voter might, and many doubtless would, have widely different opinions." Id. As the amendment compelled voters to vote for or against all three separate propositions as a unit, the court found that the amendment was "log-rolling of the worst type" and that it violated "both the spirit and the letter of the Constitution." Id. Subsequent cases in Arizona have similarly applied
The trial court in the instant case found that the initiative consisted of four propositions, all related to the same topic of tort damages and all logically related to each other. The court concluded that voters reasonably would be expected to favor either all or none of the issues presented in the proposed amendment. Thus, the court found that the initiative did not violate Arizona Constitution article 21, section 1.
We agree with the reasoning of the trial court. All of the propositions in the proposed amendment deal with authorizing the legislature to regulate tort awards. To determine a plaintiff's recovery in a tort case, the court must consider amounts to be paid for non-monetary damages, attorneys' fees, and costs, as well as the payment method utilized for monetary damages. As the purpose of each of the propositions in the proposed amendment is the same, (i.e., to regulate tort awards), voters reasonably can be expected to vote for or against the amendment as a whole. We affirm the trial court's ruling that the proposed initiative does not violate Arizona Constitution article 21, section 1.
Tilson next argues that the initiative violates A.R.S. § 19-123 and is intentionally deceptive and misleading.
A. A.R.S. § 19-123
Pursuant to A.R.S. § 19-123, the Secretary of State must print a publicity pamphlet on any proposed constitutional amendment. The pamphlet must contain:
A.R.S. § 19-123(A)(1). Tilson claims that the initiative violates the statute because it fails to indicate that the proposed amendment would "drastically alter" at least two existing provisions of the Arizona Constitution, article 2, section 31 and article 18, section 6.
Tilson's reliance on A.R.S. § 19-123 is misplaced. The statute does not regulate the initiative measure itself, but relates only to the publicity pamphlet. Thus, although it is indisputable that the proposed initiative expressly authorizes the legislature to do what article 2, section 31 and article 18, section 6 of the Arizona Constitution specifically prohibit the legislature from doing, A.R.S. § 19-123 does not require that the initiative itself indicate other constitutional provisions affected by the amendment. As Tilson makes no claims that the Secretary of State has improperly prepared the publicity pamphlet,
B. Fundamental Fairness and Due Process
Tilson claims that the proposed initiative is intentionally deceptive and misleading because it is framed so as to hide from voters the fact that its adoption will "repeal" Arizona Constitution article 2, section 31 and article 18, section 6. Thus, Tilson asserts, the initiative fails to satisfy fundamental fairness and due process requirements of the elective process.
The plain language of the proposed amendment is clear and straightforward; any ambiguity would lie not in the language of the amendment itself, but rather in the effect the amendment would have on other constitutional provisions. Arizona has no statute nor constitutional provision requiring an initiative to indicate other provisions of the constitution that would be affected by the proposed amendment. As stated earlier, A.R.S. § 19-123 deals solely with the publicity pamphlet. Furthermore, the initiative provisions of the state constitution found in article 4, Part 1 section 1 and article 21, section 1 are simple and self-executing; none of them require the initiative to indicate other constitutional provisions affected or altered.
In the absence of any constitutional or statutory directive to the contrary, the proper place to argue about the potential impact of an initiative is in the political arena, in speeches, newspaper articles, advertisements and other forums. The constitutionality of the interpretation or application of the proposed amendment will be considered by this court only after the amendment is adopted and the issue is presented by litigants whose rights are affected.
The judgment of the superior court is affirmed.
CAMERON, J., concurring.
MOELLER, J., did not participate in the determination of this matter. FELDMAN, Vice Chief Justice, concurring.
I concur in the court's analysis and conclusion. I write separately only because I believe part III of the court's opinion requires further comment.
In order to accurately describe and properly inform the public of its effect, the initiative measure should have been labeled as follows:
Instead, the amendment was put before the people under a title indicating that it was an amendment to art. 27 of the Arizona Constitution, a provision that deals with the legislature's power to regulate ambulances. Nothing in the title or body of the initiative proposal clearly stated that its actual effect was to modify the guarantees contained in art. 2, § 31 and art. 18, § 6, which prohibit the legislature from either abrogating the right to recover damages or limiting the amount recovered. This result nevertheless was accomplished by the concluding paragraph of the proposal, which states that the initiative governs over all other sections of the Constitution.
Thus, the title and wording of the initiative proposal did not indicate its effect on art. 2, § 31 and art. 18, § 6; in fact, the initiative title and wording actually may have disguised the proposal's reach. Believing, with the court, that the democratic process requires questions of fairness in drafting to be resolved first by the electorate rather than the judiciary, I concur in the holding that the judicial branch has no power to keep the proposal off the ballot simply because we might believe the matter has not been submitted to the people in a fair form. In my view, however, the question of fairness and clarity may be addressed by the legislature. See Ariz. Const. art. 4, pt. 1, § 1 and A.R.S. § 19-102
GORDON, C.J., joins in Vice Chief Justice Feldman's concurrence.
§ 1. Regulation of ambulances; powers of legislature
Section 1. The Legislature may provide for the regulation of ambulances and ambulance services in this State in all matters relating to services provided, routes served, response times and charges.