Lead Opinion
OPINION
¶ 1 This special action challenges the qualifications of three nominees to the Arizona Independent Redistricting Commission. On January 19, 2011, we issued an order accepting jurisdiction and granting relief in part, stating that a written opinion would follow. This is that opinion.
I.
¶ 2 In 2000, the voters approved Proposition 106, which amended the Arizona Constitution to require that a five-member Independent Redistricting Commission (“IRC”) draw boundaries for congressional and state legislative districts after every decennial census. The IRC must be constituted by February 28 of each year ending in one. Ariz. Const. art. 4, pt. 2, § 1(3). No more than two Commission members may belong to the same political party. Id. In addition, during the thi’ee years preceding appointment,
members shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer, and shall not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate’s campaign committee.
Id.
¶ 3 The Arizona Constitution directs that by January 8 of years ending in one, the Commission on Appellate Court Appointments (“Appointment Commission”) shall nominate twenty-five persons to serve on the IRC, “with ten nominees from each of the two largest political parties in Arizona ... and five who are not registered with either of
¶ 4 After the Appointment Commission has created its list of twenty-five nominees, the highest ranking officer of the Arizona House of Representatives appoints one person from the list to serve on the IRC. Id. § 1(6). Appointments of the next three commissioners are then made from the list successively by the House minority leader, the highest ranking officer of the Arizona Senate, and the Senate minority leader. Id. The four commissioners chosen by the legislative leaders select the fifth, who cannot be a member of any party already represented on the IRC. Id. § 1(8).
¶ 5 In September 2010, the Appointment Commission announced that it was accepting applications from persons interested in serving on the IRC. Seventy-nine people applied, including Mark Sehnepf, Stephen Sossaman, and Paul Bender. Sehnepf and Sossaman, both Republicans, reported on their applications that they serve as directors for irrigation districts. Sehnepf is on the board for the New Magma Irrigation District; Sossaman is on the board for the Queen Creek Irrigation District. Bender, an independent, stated on his application that he serves as “Chief Judge of two Arizona tribal courts.” Bender, a law professor at Arizona State University, serves as the Chief Justice of the Supreme Court of the Port McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe.
¶ 6 The Appointment Commission met on December 8, 2010, to take public comment, obtain legal advice on eligibility questions, interview forty applicants, and select nominees. The committee selected twenty-five nominees, including Bender, Sehnepf, and Sossaman. Two days later, Kirk Adams, Speaker of the House of Representatives, and Russell Pearce, President of the Senate, asked the Appointment Commission to reconsider, arguing that the three contested nominees were ineligible because they held public office. The two legislators notified Bender, Sehnepf, and Sossaman that they would not consider appointing them and urged them to withdraw. Bender declined; Sehnepf and Sossaman sent withdrawal letters to the Appointment Commission.
¶ 7 On December 29, 2010, the Appointment Commission declined to change its selections and transmitted its list of twenty-five nominees to Adams. The next day, Adams and Pearce filed a petition for special action with this Court, arguing that the three challenged nominees are ineligible because they hold other public office and that Sehnepf and Sossaman are also ineligible because they have withdrawn their applications.
II.
¶ 8 “Our decision to accept jurisdiction of a special action is highly discretionary.” League of Ariz. Cities & Towns v. Martin,
¶ 9 We agree that Petitioners, as the persons entitled to make the first and third appointments to the IRC, have standing to challenge the legality of the Appointment Commission’s list of nominees. See Brewer v. Burns,
III.
A.
¶ 10 Arizona’s constitution states that “[w]ithin the three years previous to appointment,” members of the IRC “shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer.” Ariz. Const, art. 4, pt. 2, § 1(3). Commis
¶ 11 The term “public office” as used in § 1(3) is not defined in the constitution. The sentence in which the term appears, however, provides guidance as to its meaning. Section 1(3) refers to “other public office” in contrast to service as an IRC commissioner, a state office, and “public office” therefore includes other state offices. In addition, § 1(3) excludes school board members. Because school districts are political subdivisions of the state, AR.S. § 15-101(21) (2011), this exclusion implies that public offices of other political subdivisions (e.g., counties or municipalities) are encompassed by the term “public office” in § 1(3). Cf. State Consol. Publ’g Co. v. Hill,
¶ 12 Thus, “public office” as used in § 1(3) includes offices of the state or any of its political subdivisions, excluding school board members or officers. Cf. AR.S. § 38-101(1) (defining “office” to mean “any office ... of the state, or any political subdivision thereof, the salary or compensation ... of which is paid from a fund raised by taxation or by public revenue”).
B.
¶ 13 If an irrigation district director holds an “office” of a political subdivision of the state, Schnepf and Sossaman are ineligible to serve as commissioners.
¶ 14 Irrigation districts “derive their powers from the constitution and statutes of Arizona.” Hohokam Irr. & Drainage Dist. v. Ariz. Pub. Serv. Co.,
¶ 15 Irrigation districts are managed by elected boards of directors, who, along with a secretary appointed by the board, comprise the “officers” of the district. AR.S. §§ 48-2971. Although irrigation districts have business and economic purposes, rather than a solely governmental one, Local 266, Int’l. Bhd. of Elec. Workers v. Salt River Project Agrie. Improvement & Power Dist.,
¶ 16 Because irrigation districts are political subdivisions of the state and their “officers” include their directors, we conclude that Schnepf and Sossaman hold “public office” for purposes of § 1(3), just as officers of a city or a county hold public office. Notably, directors of irrigation districts take the same oath of office as county officials, see AR.S. § 48-2973, -3023, and they are treated like county officers for purposes of recall. See id. § 48-3024 (permitting the recall of directors of irrigation districts and stipulating that the proceedings for such a recall follow what is “provided by the constitution and laws of the state for the recall of county officers”).
¶ 17 Schnepf and Sossaman are therefore ineligible to serve as IRC commissioners. We thus do not address Petitioners’ argu
C.
¶ 18 Bender is not an officer of the state or any of its political subdivisions. We assume, but need not decide, that he is an “officer” of the two tribes for which he serves as a part-time judge. Bender’s eligibility turns on whether a tribal office is a “public office” under § 1(3) of the constitution.
¶ 19 Petitioners and the amici congressional representatives argue that “public office” must include more than offices of the state or its subdivisions, because the addition of the word “Arizona” before “public office” in the disqualification provision of § 1(13) would otherwise be superfluous. They also note that allowing members of Congress to serve as commissioners would conflict with Proposition 106’s intent to remove self-interested officials from the process of drawing boundaries for their own electoral districts.
¶ 20 The meaning of “public office” cannot be identified without considering the context in which the term appears and the fact that, long before the adoption of § 1(3), the constitution had used the terms “public office” or “public officer” in several other provisions. See Kilpatrick v. Superior Court (Miller),
¶ 21 The Enabling Act that resulted in Arizona’s statehood provided for an initial election at which “officers for a full state government, including a governor, members of the legislature, one Representative in Congress, and such other officers as such constitutional convention shall prescribe, shall be chosen by the people.” Act of June 20,1910, ch. 310, § 23, 36 Stat. 557, 571. Consistent with this mandate, delegates at our state constitutional convention approved an ordinance providing that at the initial state election:
[Ojfficers for a full State government shall be chosen by the people, including all the elective State, County, and Precinct officers and members of the Legislature, provided for by said Constitution, and one Representative of Congress. For the purpose of advising the Legislature, the people shall also express at said election, their choice for two United States Senators to represent the State in Congress.
Elec. Ord. No. 2, § 2.
¶ 22 Thus, on the eve of statehood, representatives to Congress were identified as among the “officers for a full state government.” (United States Senators were not directly elected until after the 1913 ratification of the Seventeenth Amendment.) Members of Congress are properly regarded as “officers for ... a state,” even though they are not state officers, inasmuch as they are chosen “by the People” of their respective states, and the vote of representatives may, in rare instances, be taken by state. U.S. Const, art. 1, § 2, els. 1-2; amend. XII (providing that vote of House of Representatives in selecting President shall be taken by state); amend. XVII (providing for direct election of senators).
¶ 23 The Arizona Constitution as drafted in 1910 and implemented in 1912 also contained several references to “public office.” Some of those references have long been understood to include Arizona’s members of Congress. For example, the constitution provides that “[w]hen any office shall, from any cause, become vacant, and no mode shall be provided by the Constitution or by law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment.” Ariz. Const, art. 5, § 8. The inaugural state legislature provided for the filling of certain vacancies, including those in Congress. See Rev. Stat. Ariz. Civ. § 2869
¶ 24 Arizona’s constitution also broadly declares in Article 8, Part 1, Section 1 that “[e]very public officer in the State of Arizona, holding an elective office ... is subject to recall.” Since statehood, Arizona has had statutory recall provisions directed at members of Congress. Rev. Stat. Ariz. Civ. § 22-3054 to -3364 (1913) (providing for advisory recall elections of members of Congress); A.R.S. §§ 19-221 to -222 (allowing members of Congress to file statements indicating their willingness to resign in response to a recall election).
¶ 25 Also relevant is Article 6, Section 28, of the Arizona Constitution, which provides that “[jjustices and judges of courts of record shall not be eligible for any other public office or for any other public employment during their term of office.” Before 1960, Article 6 stated that supreme court justices and superior court judges “shall not be eligible to any office or public employment” other than judicial office “during the term for which they shall have been elected.” Ariz. Const, art. 6, § 11 (repealed 1960).
¶ 26 In Stockton v. McFarland, a primary candidate argued that this provision rendered his opponent, a superior court judge, ineligible for the United States Senate.
¶ 27 Arizona’s legislature has also repeatedly enacted statutes suggesting, at least implicitly, that members of Congress are regarded as holding public office. For example, the state requires the filing of financial disclosures by “public officers.” AR.S. § 38-541(8). Members of Congress are specifically excluded, suggesting that they might otherwise be regarded as “public officers.” Id. Similarly, although Arizona law broadly requires campaign finance disclosures for candidates for public office, candidates for federal office are specifically excluded. A.R.S. § 16-901(2) (excluding candidates for federal office from state campaign disclosure law).
¶ 28 Arizona law, we acknowledge, is not entirely consistent in its use of the terms “office,” “public office,” and “public officer.” Sometimes the constitution expressly distinguishes between federal and state offices. See, e.g., Ariz. Const, art. 4, pt. 2, § 4 (providing that, with certain exceptions, “[n]o person holding any public office of profit or trust under the authority of the United States, or of this state, shall be a member of the legislature”); id. § 5 (providing, with certain exceptions, that legislators during their term “shall [not] be eligible to hold any other office or be otherwise employed by the state of Arizona or, any county or incorporated city or town thereof’); id. art. 22, § 18 (providing that, “[e]xcept during the final year of the term being served, no incumbent of a salaried elective office ... may offer himself for nomination or election to any salaried local, State or federal office”).
¶ 29 The legislature has also sometimes interpreted the constitution’s use of the term “public office” as referring only to offices of the state and its political subdivisions. When the constitution was ratified, Article 7, Section 16 directed the legislature, during its first session, to adopt a law providing for the disclosure of “all campaign contributions to, and expenditures of ... candidates for public office.” The 1912 statute adopted in response required financial disclosures from “candidate[s] for election ... to any state, county, city, or town office.” Rev. Stat. Ariz. Civ. § 3054 (1913). The statute did not men
¶ 30 Arizona law, however, has sometimes treated members of Congress as holding “public office.” Given this backdrop, we agree with Petitioners and the amici representatives that Arizona’s members of Congress hold “public office” under § 1(3) and thus are ineligible for service on the IRC. This conclusion recognizes the evident purpose of § 1(3) to prevent self-interested officials from drawing the boundaries of their own electoral districts. Cf Ariz. Const, art. 4, pt. 2, § 1(15) (directing that “places of residence of incumbents or candidates shall not be identified or considered”).
¶ 31 Our interpretation of § 1(3) also recognizes the difference between its language and § l(13)’s reference to “Arizona public office.” Although Arizona may exclude members of Congress or other federal officeholders from serving on the IRC, § 1(13) recognizes that the state has no power to disqualify candidates from serving in federal office or offices created by other sovereign entities. See State ex rel. Pickrell v. Senner,
D.
¶ 32 Our conclusion that members of Congress hold “public office” for purposes of § 1(3) does not, however, resolve whether Bender, a tribal judge, holds a public office. Is a tribal office a public office under § 1(3)?
¶ 33 Petitioners argue that a tribal judgeship is a “public office” because the term generally refers to a position in which a person exercises a government’s sovereign powers and Indian tribes are sovereign entities. Citing dictionary definitions of “public office,” the dissent similarly argues that § 1(3) should be construed broadly to include tribal officers.
¶ 34 These arguments are not persuasive because they seek to interpret “public office” without considering the context in which it appears within § 1(3) and the way in which this phrase has otherwise been interpreted under Arizona law. As Justice Scalia has observed, it is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.” Deal v. United States,
¶ 35 Indian tribes are not, of course, political subdivisions of the state. Instead, Indian tribes have been recognized since the ratification of the United States Constitution as having a special sovereign status separate from the federal government and the states. Cf. U.S. Const, art. I, § 8, cl. 3 (granting Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). “Indian tribes retain attributes of sovereignty over both their members and their territory, to the extent that sovereignty has not been withdrawn by federal statute or treaty.” Iowa Mut. Ins. Co. v. LaPlante,
¶ 36 Consistent with the tribes’ distinctive status, Arizona’s constitution and laws generally do not include tribes within the meaning of the word “public.” Cf. Ariz. Const, art. 20,
¶ 37 Petitioners and the congressional ami-ci also contend that a tribal judge is a “public officer” under the test adopted in Winsor v. Hunt,
¶ 38 Recognizing that “[tjhere is no entirely satisfactory definition” of public office, id. at 518,
¶ 39 Winsor is inapposite. It construed a since-replaced constitutional provision and did not purport to adopt a general definition of “public office.” But most importantly, Winsor did not concern whether an individual held a “public” position (Winsor indisputably worked for the state), but instead whether the person was an officer rather than an employee. Although we do not question Winsofs criteria for identifying when a position created by state law qualifies as an “office of profit under this State,” or that those criteria might provide useful guidance in other contexts, of. McCarthy v. State ex rel. Harless,
¶ 40 In arguing that “public office” as used in § 1(3) includes tribal judges, Petitioners also contend that Indian tribes are “communities of interest” affected by redistricting and that allowing tribal officers to serve as commissioners would undermine the goals of promoting impartiality and public confidence in the redistricting process. These arguments are not compelling. Section 1(3) does not exclude persons from service as commissioners merely because they may be associated with some group characterized as a community of interest. Indeed, § 1(3) does not exclude many persons who might be regarded as potentially interested or biased in the redistricting process, such as relatives or staff members of incumbents or prospective candidates.
¶ 41 Moreover, we are confident that the Appointment Commission will carefully exercise its constitutional responsibility to identify nominees, who are committed to serving “in an honest, independent and impartial fashion and to upholding public confidence in the integrity of the redistricting process.” Ariz. Const, art. 4, pt. 2, § 1(3). Here, there is no reason to question the Appointment Commission’s conclusion that Bender, despite his service as a tribal judge, could serve impartially and uphold public confidence in the integrity of the process.
¶ 42 Before § 1(3) was adopted, the Arizona Constitution had referred to “public office” or “public officers” in a half dozen places, none of which was ever construed to include tribal officers. As noted above, no legal authority identified by the parties or this Court has interpreted a state law referring to “public office” as including tribal offices absent a specific statutory reference to Indians or tribes. For this Court to construe § 1(3) as including tribal offices would thus constitute a unique and unprecedented interpretation of the phrase “public office.” Since statehood, this Court has declined to construe provisions restricting eligibility for
¶ 43 Because § 1(3) contains no language indicating that its proscription on commissioners holding “other public office” extends to Indian tribes, we hold that the position of tribal judge is not a “public office” for purposes of § 1(3).
IV.
¶ 44 For the reasons stated, we accepted jurisdiction and granted relief in part. Because Schnepf and Sossaman are ineligible to serve .as commissioners, we ordered the Appointment Commission promptly to identify two alternative nominees so that Adams could appoint the initial commissioner from a pool of twenty-five qualified nominees. Petitioners’ request for relief was denied as to Bender because his position as a tribal judge does not render him ineligible to serve as a commissioner.
Dissenting Opinion
dissenting in part.
¶ 45 I concur with the majority’s result concerning Schnepf and Sossaman, but respectfully dissent from its analysis of the phrase “any other public office” as used in Article 4, Part 2, § 1(3) of the Arizona Constitution, as well as its analysis of Professor Bender’s eligibility for service on the IRC. A straightforward reading of the constitutional provisions at issue reveals a clear, unambiguous intent to broadly curtail the influence of the politically entrenched and politically ambitious on that Commission’s work and decisions. See Carrow Co. v. Lusby,
¶ 46 In promoting the proposed constitutional amendment to establish the membership of the IRC, proponents of Proposition 106 said it would create “an independent commission of balanced appointments to oversee the mapping of fair and competitive congressional and legislative districts,” Ariz. Sec’y of State 2000 Publicity Pamphlet 60 (2000). To further that objective, the broadest possible restrictions were placed on potentially interested parties. No person on the IRC may hold or be a candidate for “any other public office” in the three years preceding appointment. § 1(3). And at the conclusion of their service, IRC members are further barred from seeking any “Arizona public office” for three years. § 1(13).
¶ 47 As the majority recognizes, see supra, ¶¶ 20, 31, and as the Arizona Attorney General’s Office has opined, these are not symmetrical restrictions. See 2007 Op. Ariz. Att’y Gen. 107-011,
¶ 48 Conversely, Arizona may exercise significantly less authority over the prospective
¶ 49 Reading §§ 1(3) and 1(13) together, the specific limitation in § 1(13) on a former member’s seeking an “Arizona” public office is not intended to limit the applicability of the general disqualification of “any” public office holder in § 1(3). See State Comp. Fund v. Superior Court (EnerGCorp, Inc.),
¶ 50 As noted, § 1(3) broadly disqualifies persons who have, in the last three years, held or been a candidate for “any other public office.” There is no express or implied exemption for a tribal position.
¶ 51 Giving the term “public office” the broad construction that § 1(3) suggests, I would conclude that Bender, as chief justice of two tribal courts, holds public office. At oral argument, amicus Valley Citizens’ League’s counsel (advocating for Professor Bender’s eligibility) expressly stated that Bender is a public officer of the respective tribes he serves. The constitutions and bylaws of both the San Carlos Apache and Fort McDowell Yavapai tribes support this ac-knowledgement, expressly delegating the judicial authority of their respective nations to their judiciaries. And it is indisputable that the judicial powers of a tribal nation are governmental powers of a sovereign. See 25 U.S.C. § 3631 (2006) (recognizing inherent sovereign authority of each tribal government’s judiciary); Penn v. United States,
¶ 52 Appropriately, the majority looks to the constitution and Arizona statutes to determine if the term “public office” has a particularized, consistent meaning under Arizona law and concludes that it does not. See supra, ¶¶ 28-30. Also understandably, the majority declines to simply adopt a definition used elsewhere in Arizona law to construe § 1(3), noting that “public office” has not been consistently interpreted throughout Arizona law. But the majority then rejects any applicable or relevant principles derived from Winsor v. Hunt,
¶ 53 The majority’s unwillingness to adopt a definition of the term “public office” skews its analysis of Bender’s eligibility for service. Without a definition, the majority correctly attempts to look to the context in which the term “public office” appears. See supra, ¶ 20. But what it claims is constitutional context appears to be mere constitutional silence. The majority cites only a section of the Arizona Constitution that refers separately to “public lands” and “Indian lands.” See supra, ¶ 38. Article 20, Section 4, however disclaims the people’s right to appropriate as personal property any ungranted public lands within the border of the state and lands granted specifically to Indian tribes.
¶ 54 The majority also points out that “Arizona’s constitution and statutes refer in many places to public office or public officers ... but none of those provisions has been construed to embrace tribal offices.” Supra, ¶ 38. That point, although correct, is neither surprising nor helpful to the majority inasmuch as the issue presented here has never been raised or decided before. Absent any controlling or pertinent authority, giving the unqualified phrase “any other public office” in § 1(3) a fair and rational interpretation, so as to include within its broad sweep tribal offices, is no more “unique and unprecedented” than the majority’s contrary holding, particularly considering the overarching purpose of Proposition 106. See supra, ¶ 42.
¶ 55 In short, the majority’s observation provides no constitutional or statutory support for excluding tribal offices from the broad category of public office. In fact, the same absence of authority supports including them within this category because no law or case has expressly excluded tribal officers. The most logical reading of constitutional language affords a broad meaning to broad
¶ 56 Moreover, this Court should be hesitant to infer too much from Arizona law failing to expressly refer to Indian tribes. Because states have limited authority to bind tribes, see Ramah Navajo Sch. Bd. v. Bureau of Rev. of New Mexico,
¶ 57 Section 1(3) is framed very broadly, has no surrounding subsections that suggest a qualified or limiting construction, and, as a constitutional provision enacted through voter initiative, has no instructive legislative history. Accordingly, it should be given the broad meaning the language dictates.
¶ 58 Like the majority, and as the Commission on Appellate Court Appointments implicitly determined, I have no doubt that Professor Bender would exercise a position on the IRC “in an honest, independent and impartial fashion” and would “uphold[ ] public confidence in the integrity of the redis-trieting process.” Ariz. Const, art. 4, pt. 2, § 1(3). But that is not the issue. I am similarly convinced that Mr. Schnepf and Mr. Sossaman would exercise their duties equally professionally, honestly, and diligently. But our constitution categorically excludes certain people from service on the IRC. Regardless of our convictions about the sincerity and merit of any given candidate, our duty is to give effect to the constitution as written. Because the more reasonable interpretation of the phrase “any other public office” in § 1(3) includes tribal officers (as well as many other government posts, regardless of the employing sovereign), I respectfully dissent from the portion of the majority opinion that concludes otherwise.
Notes
. A significant portion of the majority opinion is devoted to deciding whether a member of Congress is a "public officer" under the Arizona Constitution. That question, while no doubt important, is not before this Court. But given the breadth of the phrase "any other public office” in § 1(3), it clearly would encompass members of Congress and render them ineligible for service on the IRC.
. Accordingly, I disagree with the majority’s position that the exclusion of school board members from the ambit of this provision "provides guidance as to its meaning.” See supra, ¶ 11. The exclusion of school board members from this provision merely suggests that "any ... public office" means just that—any public office. Moreover, the drafters’ choice to expressly exclude a specific office tends to support a broad construction of the phrase "public office.” In any event, the text does not contain any other express limitations on the term, and we should decline to limit it any further. See State Comp. Fund,
. In response to a question in the IRC application that asked about "elected or appointed offices” the applicant had held, Professor Bender described his tribal judge positions with two Indian nations and said his judicial role was “essentially the same as the role of federal judges with respect to the federal government.”
. Article 20, par. 4 states in its entirety:
The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted pub-lie lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that, until the title of such Indian or Indian tribes shall have been extinguished, the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States.
. Although I agree with the majority that this Court declines to construe restrictions on public office more broadly than the text supports, see Steeves v. Wilson,