ARIZONA FREE ENTERPRISE CLUB, ET AL., Plaintiffs/Appellants, v. KATIE HOBBS, IN HER CAPACITY AS THE SECRETARY OF STATE OF ARIZONA, ET AL. Defendant/Appellee, and INVEST IN ARIZONA (SPONSORED BY AEA AND STAND FOR CHILDREN), A POLITICAL COMMITTEE, Real Party in Interest/Appellee.
No. CV-21-0304-AP/EL
Supreme Court of the State of Arizona
Filed August 19, 2022
Appeal from the Superior Court in Maricopa County, The Honorable Katherine M. Cooper, Judge, No. CV2021-011491, CV2021-016143 (Consolidated)
COUNSEL:
Kory Langhofer (argued), Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Arizona Free Enterprise Club, Scot Mussi, and Diane Schafer
Spencer Scharff, Scharff PLC, Phoenix, Attorney for Katie Hobbs
Roopali H. Desai, D. Andrew Gaona (argued), Kristen Yost, Coppersmith Brockelman PLC, Phoenix, Attorneys for Invest in Arizona (Sponsored by AEA and Stand for Children)
Daniel J. Adelman, Samuel Schnarch, Arizona Center for Law in the Public Interest, Phoenix; and Erin Adele Scharff, Phoenix, Attorneys for Amicus Curiae Arizona Center for Law in the Public Interest
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Brunn (Beau) Roysden, III, Solicitor General, Michael Catlett, Deputy Solicitor General, Jillian Francis, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General Mark Brnovich
JUSTICE LOPEZ authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK and KING joined. JUSTICE MONTGOMERY, joined by JUSTICE BEENE, concurred in part and dissented in part.
JUSTICE LOPEZ, Opinion of the Court:
¶1 We explain today the reasons for our prior decision order disqualifying Real Party in Interest Invest in Arizona’s (“IIA”) referendum petition seeking to refer Senate Bill 1828—sections 13 and 15—(“SB 1828”) to the ballot in the November 8, 2022 General Election. We conclude the exemption from the referendum power for laws “for the support and maintenance of the departments of the state government and state institutions,”
BACKGROUND
¶2 SB 1828 was passed during the First Regular Session of the Fifty-Fifth Arizona Legislature and signed by the Governor as a tax bill for the 2022 fiscal year. SB 1828 imposes a “flat” tax of 2.5% on taxable income but becomes effective only if the state General Fund revenues reach specified targets. SB 1828 was enacted in response to the Invest in
¶3 IIA sought to prevent implementation of the flat tax by referring SB 1828 to the ballot in the November 8, 2022 General Election. On July 21, 2021, Appellants Arizona Free Enterprise Club, et al. (“Free Enterprise”) filed a motion for preliminary injunction in Maricopa County Superior Court seeking to enjoin the Secretary of State from accepting or certifying any petition filed in support of a referendum of SB 1828, including IIA’s petition. Free Enterprise challenged the referendum on two grounds: the Arizona Constitution exempts SB 1828 from referendum, and the petition sheets and signatures are statutorily deficient. IIA moved to dismiss Free Enterprise’s challenge.
¶4 On December 20, 2021, the trial court ruled that SB 1828 is referable and, thus, may be submitted to the voters in the November 8, 2022 General Election. The court reasoned that it did not qualify as a “support and maintenance” measure under the Arizona Constitution because it did not appropriate state funds or generate necessary revenue. See
¶5 Free Enterprise directly appealed the trial court’s ruling to this Court pursuant to
DISCUSSION
¶6 The three branches of government in Arizona share an equal duty in applying and upholding our state constitution, but “our courts bear ultimate responsibility for interpreting its provisions.” Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 8 (2006); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) (“The ultimate interpretation and determination of the [Constitution’s] substantive meaning remains the province of the Judicial Branch.”). The task before us is to interpret the text of section 1(3) to determine its meaning and the scope of the exemption of laws from the referendum power. See Ariz. Sch. Bds. Ass’n v. State, 252 Ariz. 219, 229 ¶ 45 (2022) (noting that this Court’s constitutional duty is to interpret and apply the constitution).
I.
A.
¶7 The Arizona Constitution reserves the powers of initiative and referendum to the people.
¶8 Section 1(3), which establishes the referendum power, is a dense provision that has befuddled our courts since its inception. See Clark v. Boyce, 20 Ariz. 544, 546 (1919) (remarking that “we must admit that it has cost us no little trouble to arrive at a conclusion” concerning the interpretation of section 1(3)). Section 1(3) provides:
The second of these reserved powers is the referendum. Under this power the legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, or for the support and maintenance of the departments of the state government and state institutions; but to allow opportunity for referendum petitions, no act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enacting such measure, except such as require earlier operation to preserve the public peace, health, or safety, or to provide appropriations for the support and maintenance of the departments of the state and of state institutions; provided, that no such emergency measure shall be considered passed by the legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative, and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature, taken by roll call of ayes and nays, and also approved by the governor; and should such measure be vetoed by the governor, it shall not become a law unless it shall be approved by the votes of three-fourths of the members elected to each house of the legislature, taken by roll call of ayes and nays.
(Emphasis added.)
¶9 We first consider whether revenue laws “for the support and maintenance of the departments of the state government and state institutions” are exempt from referendum under section 1(3). The trial court, citing Garvey v. Trew, 64 Ariz. 342, 353 (1946), ruled that SB 1828 did not qualify for exemption as an appropriation measure. In other words, the court reasoned, and IIA contends, that only appropriation measures, rather than support and maintenance revenue provisions, are exempt from the referendum process. We disagree.
¶10 “When interpreting a constitutional provision, ‘we begin with the text,’ because it is ‘the best and most reliable index of a [provision’s] meaning.’” Fann v. State, 251 Ariz. 425, 441 ¶ 59 (2021) (alteration in original) (quoting State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003)). In discerning the text’s meaning, the most objective criterion available is the accepted meaning of the words, in context, when the provision was adopted. See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 16, 78 (2012). If the text is unambiguous, we apply its express terms without applying secondary methods of construction. Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396, 406 ¶ 28 (2020). We also afford meaning to “each word, phrase, and sentence . . . so that no part will be void, inert, redundant, or trivial.” Id. (alteration in original) (quoting City of Phoenix v. Yates, 69 Ariz. 68, 72 (1949)). “An absurd construction of a constitutional provision should be avoided.” Ruth v. Indus. Comm’n, 107 Ariz. 572, 576 (1971). We may examine our constitution’s history to determine the framers’ intent. Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986).
¶11 In determining whether support and maintenance laws are exempt under the Arizona Constitution, it is beneficial to analyze section 1(3) as containing two separate clauses. The first clause provides:
Under this power the legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, or for the support and maintenance of the departments of the state government and state institutions.
¶12 The second clause provides that:
to allow opportunity for referendum petitions, no act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enacting such measure, except such as require earlier operation to preserve the public peace, health, or safety, or to provide appropriations for the support and maintenance of the departments of the state and of state institutions.
¶13 The original draft of section 1(3)’s first clause permitted exercise of the referendum power “except as to the laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the Departments of State and State institutions.” The Records of the Arizona Constitutional Convention of 1910, at 1020–21 (John S. Goff ed., 1991) (emphasis added). In other words, the original language in the first clause mirrored that of the second clause in that it limited the class of exempt support and maintenance laws to “appropriations.” The version of section 1(3) that was ratified in 1912, however, omitted reference to “appropriations” in the first clause and, instead, exempted from referendum “laws...for the support and maintenance of the departments of the State Government and State institutions.”
¶14 Section 1(3)’s first clause enumerates the types of measures exempt from the referendum power: (1) “laws immediately necessary for the preservation of the public peace, health, or safety”; and (2) laws for the support and maintenance of state departments and state institutions. The first clause’s reference to laws “for the support and maintenance,” in context, necessarily entails a broader meaning than the second clause’s use of “appropriations.” 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.” League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 560 ¶ 15 (2009) (quoting Hunt v. Callaghan, 32 Ariz. 235, 239 (1927)). Support is defined as “a broader term embracing both the acquisition and allocation of funds.” Wade v. Greenlee County, 173 Ariz. 462, 463 (App. 1992). These definitions align with the common meaning of these familiar terms.
¶15 We reject the notion that section 1(3)’s reference to “support and maintenance” is synonymous with “appropriations.” Measures that provide “support and maintenance” include laws that raise or disburse revenue, while “appropriations” merely disburse revenue generated through laws for support and maintenance. See Wade, 173 Ariz. at 463 (“Appropriations... are only part of support, the act of allocating independent of how the money was acquired.”). Thus, an appropriation is a subset of measures that provide support and maintenance for state government. This broader interpretation of section 1(3) harmonizes its two clauses, which involve different types of inherently related laws: the first clause exempts laws that raise or disburse revenue for the support and maintenance of identified state governmental entities and the second clause solely concerns appropriations that disburse funds from already-generated revenue.
¶16 Our jurisprudence harmonizes with our interpretation of section 1(3). Contrary to the trial court’s and IIA’s claim, we have never expressly limited exempt measures under section 1(3) to appropriations. In
¶17 Fifteen years later, we disavowed Warner to the extent it read the words “immediately necessary” to apply to the “support and maintenance” referendum exemption. Garvey, 64 Ariz. at 352–53. It is debatable whether Warner or Garvey offers the best interpretation of section 1(3)’s “immediately necessary” requirement. But “[w]e are mindful of the importance of stare decisis,” Sell v. Gama, 231 Ariz. 323, 329 ¶ 30 (2013), and “do not lightly overrule precedent and do so only for compelling reasons,” Lowing v. Allstate Ins., 176 Ariz. 101, 107 (1993) (quoting Wiley v. Indus. Comm’n, 174 Ariz. 94, 103 (1993)). Garvey has been the prevailing interpretation and application of “immediately necessary” for over seventy-five years, and it is not clearly erroneous. Thus, we find no compelling reason to overrule Garvey on this point and we adhere to its reasoning. See id. (“[T]he degree of adherence demanded by a prior judicial decision depends upon its merits, and it may be abandoned if the reasons for it have ceased to exist or if it was clearly erroneous or manifestly wrong.”).
¶18 In Garvey, we considered whether a specific appropriation bill was exempt from a referendum challenge under section 1(3) and held that “the test of whether the appropriation is for the support and maintenance is not the earmarking for a specific pupose [sic], but rather [whether] the funds [are] appropriated for use in carrying out the objects and functions of the department.” Garvey, 64 Ariz. at 347. There, the subject bill directed $50,000 to the Arizona Corporation Commission to ascertain a fair market value of all property of public service corporations providing gas or electric utilities in order to create utility rates. Id. at 345. We concluded that the Secretary of State correctly refused to file the referendum petitions because the appropriation was for the support and maintenance of the existing functions of the Corporation Commission and thus exempt from referendum challenge under section 1(3). Id. at 346–47, 355.
¶20 Our holding that revenue laws “for the support and maintenance” of state departments and institutions are exempt from the referendum power under section 1(3) does not foreclose a challenge to every law that raises state revenue. A revenue law is exempt from referendum only if it supports existing state departments or state institutions. See id. at 348 (“Here the only effect or new features of the measure sought to be referred is the appropriation itself, the commission being already vested with the power and the duty to perform the acts mentioned in the law.”). We announced this principle in Warner, affirmed it in Garvey, and reaffirm it now. Id. (“In the Warner case it was very properly held that the measure was not one for the support and maintenance of a state department, but for the creation of a new department, and, not being passed with the emergency, it was referable.”). Thus, the people retain the right to challenge a law creating a new department of the state even if it also raises revenue to support the newly minted department. Warner, 39 Ariz. at 215 (“[T]he people could not be deprived of their right to approve or reject a law creating a department of the state government and prescribing its functions merely because it provides in addition the funds for the purpose of carrying out its terms in case it should finally come into being.”). Additionally, unlike the
¶21 We next address the differential treatment of “support and maintenance” measures and appropriations under section 1(3)’s second clause, which exempts certain laws from the ninety-day operative delay under its “earlier operation” provision.
¶22 The second clause provides that laws “requir[ing] earlier operation to preserve the public peace, health, or safety” must go into effect immediately, given the urgency of protecting the public, see
¶23 The parties dispute whether a logical purpose exists for the founders to exempt “support and maintenance” revenue laws from the referendum process in the first clause but simultaneously exclude them from the “earlier operation” provision in the second clause. We may consider the text’s purpose but only to decide which textually permissible meaning to adopt. See Scalia & Garner, supra, at 57 (“[E]xcept in the rare case of an obvious scrivener’s error, purpose—even purpose as most narrowly defined—cannot be used to contradict text or to supplement it. Purpose sheds light only on deciding which of various textually permissible meanings should be adopted.”).
¶24 We conclude section 1(3)’s text yields a logical structure, and we consider its purpose only to ascertain which textually permissible interpretation to adopt. To that end, we note its first and second clauses relate to different types of exempt laws—one that generates revenue and appropriates funds for the support and maintenance of the state and another that disburses existing revenue without delay.
¶25 We presume the disparate procedural treatment of these laws in the second clause serves a purpose consistent with its textual design for
¶26 These purposes are consistent with our textually permissible interpretation of section 1(3) and refute any notion that its text must trace to a drafter’s error or that we have settled on an absurd construction. Indeed, a contrary reading that provides exemption from referral only for appropriation measures voids all independent meaning from the framers’ deliberate decision to substantively vary the provisions of the two clauses.
D.
¶27 Our holding that revenue measures for the support and maintenance of existing state departments and institutions are exempt from the referendum process under section 1(3) is hardly a novel interpretation of our constitution. In Wade, the court of appeals considered a new one-half cent sales tax to fund existing county programs and affirmed the trial court’s ruling that the measure was exempt from the referendum process. 173 Ariz. at 463. Wade established a persuasive analytical template for the referendum exception’s arguable internal inconsistencies, noting that “[s]upport is a broader term embracing both the acquisition and allocation of funds. Support cannot occur without money. Appropriations, however, are only part of support, the act of allocating independent of how the money
¶28 We also note that the most recent Attorney General opinion interpreting section 1(3) accords with our holding.3 See
E.
¶29 We next consider whether a tax measure must increase revenue to qualify for exemption from the referendum process under section 1(3). The trial court, citing Wade, ruled that even if the support and maintenance exemption applies to revenue measures, it is limited to laws that increase revenue. Here, because the trial court concluded that SB 1828 would at least initially decrease tax revenue, it ruled, and IIA contends, that SB 1828 is subject to referendum. We disagree.
¶30 The constitution provides that “laws . . . for the support and maintenance of the departments of the state government and state institutions” are exempt from referendum.
¶31 The absence of any textual support in the constitution for the proposition that only tax measures that immediately increase revenue are exempt from the referendum process perhaps reflects the founders’ wisdom. Conditioning the referendum exemption on the revenue effect of a support and maintenance measure is a fool’s errand that raises myriad questions concerning the temporal scope of the inquiry and rests on the vagaries of economic projections. Cf. Armstrong v. United States, 759 F.2d 1378, 1381 (9th Cir. 1985) (holding that, under the origination clause of the Constitution, “[t]he term ‘Bills for raising Revenue’ does not refer only to
II.
¶32 The dissent effectively contends that the majority interprets section 1(3) to provide “categorical exemptions from the referendum” and fails to “give operative effect to every provision within section 1(3) consistent with the framers’ intent.” Infra ¶ 60. We disagree. Our interpretation does not categorically exempt tax revenue measures, but rather limits the exemption to such measures for the support and maintenance of existing state government departments and institutions, supra ¶ 20, and gives meaning and purpose to every provision of section 1(3).
¶33 We embrace the dissent’s recounting of the history of the referendum power, which is not in dispute. Infra ¶¶ 43–46. But the dissent’s citations to the constitutional convention record fail to delineate the precise scope of section 1(3)’s referendum exemption. Instead, the dissent relies heavily on the First Legislature’s treatment of section 1(3) in its passage of legislation. Infra ¶¶ 47–49. Although the examples may “give credence to an interpretation” of section 1(3) that every exemption requires an emergency measure, infra ¶ 49, conduct of a subsequent legislature does not fill the void in the constitutional convention record, and we are reluctant to rely on legislative understanding of a constitutional provision as a primary source of authority for our own interpretation, cf. Napolitano, 213 Ariz. at 485 ¶ 8 (“Although each branch of government must apply and uphold the constitution, our courts bear ultimate responsibility for interpreting its provisions.”). Similarly, we acknowledge that our earlier cases interpreted section 1(3) differently, infra ¶¶ 50–54, but our holding today aligns with this Court’s most recent consideration of the issue, supra ¶¶ 17–20. Because we conclude that Garvey’s reasoning is not clearly
¶34 We next address the dissent’s textual interpretation of section 1(3), which undergirds its assertion that our interpretation fails to “give operative effect to every provision within section 1(3) consistent with the framers’ intent,” infra ¶ 60, namely the section’s “emergency measure” (which the dissent styles the “last clause”), infra ¶¶ 84–85. The dissent suggests that we fail to give the last clause its due because our interpretation does not recognize an emergency measure as a prerequisite for exemption of any law under section 1(3). We are unpersuaded.
¶35 Section 1(3)’s last clause prescribes the procedural requirements for implementing “emergency measures” contemplated in the first and second clauses and reads, in part,
provided, that no such emergency measure shall be considered passed by the legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative, and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature.
¶36 The dissent concludes that referendum exemptions are limited to “laws immediately necessary for the preservation of the public peace, health, or safety,” and laws that “provide appropriations,” infra ¶¶ 75, 79, and that an “emergency measure” is a prerequisite for
III.
¶37 IIA requests attorney fees and costs under the private attorney general doctrine and
CONCLUSION
¶38 Our interpretation of section 1(3) implements the founders’ original plain meaning, as expressed in the text, concerning the meaning and scope of the referendum power to challenge tax laws. We interpret constitutional and statutory provisions as they are written, and we are constrained from rewriting the law under the guise of interpreting it even if we divine a more desirable intended outcome than the text allows. Cf. Silver v. Pueblo Del Sol Water Co., 244 Ariz. 553, 566 ¶ 44 (2018) (“We decline
¶39 Our holding that revenue laws like SB 1828 are exempt from the referendum process as measures for the support and maintenance of existing departments of the state government and state institutions does not deprive our citizens of constitutional recourse to change our tax laws. Our constitution affords myriad avenues to affect political and policy change, including on the subject of taxes. Citizens may change such laws indirectly through the ballot box by selecting their elected representatives to implement their policy preferences or directly through the initiative process.
¶40 For the reasons set forth above, we reverse the trial court’s ruling and remand for entry of judgment consistent with this opinion.
MONTGOMERY, J., joined by JUSTICE BEENE, concurred in part and dissented in part:
¶41 We concur in the majority’s determination that tax revenue measures are for “the support and maintenance of the departments of the state government and state institutions.” Supra ¶ 1. However, we respectfully dissent from our colleagues’ analysis and conclusion that permits an exemption for tax revenue measures absent compliance with all the requirements of article 4, part 1, section 1(3) of the Arizona Constitution. Supra ¶¶ 25–28. Instead, we would return to the understanding of the referendum power’s scope as reflected in the records of the constitutional convention of 1910, the actions of the first legislature, and the earliest decisions of this Court in Clark v. Boyce, 20 Ariz. 544 (1919), Orme v. Salt River Valley Water Users’ Ass’n, 25 Ariz. 324 (1923), and Warner v. White, 39 Ariz. 203 (1931). Accordingly, no legislative act is exempt from the referendum save specific categories of laws for specific reasons enacted in a specified manner.
¶42 At the outset, we acknowledge the difficulty in interpreting this provision of our constitution. We thus echo the state’s earliest justices in confessing that the wording of article 4, part 1, section 1 “has cost us no little trouble to arrive at a conclusion.” Clark, 20 Ariz. at 546. Nonetheless, as noted there exists guidance among those who drafted, exercised, and interpreted the exemption from the referendum power from which we can faithfully discern an interpretation that obviates angst over the effect of the phrases “immediately necessary” and “earlier operation,” avoids arbitrary distinctions between new and existing departments of state government, and renders distinctions between tax measures that ultimately raise or lower revenue irrelevant.
I. HISTORICAL BACKGROUND
A. Constitutional Convention and the Referendum
¶43 The ability for the people to engage in direct democracy through initiative and referendum was at the center of the process for determining delegates to the constitutional convention. John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 32–33 (1988); see also Gordon Morris Bakken, The Arizona Constitutional Convention of 1910, 1978
Believing in the ability and discretion of the people and that they are capable of self-government, and the closer the law-making power is to the people, the better the results and safer the government, we pledge our candidates for the constitutional convention to use their utmost endeavor to place in the constitution self-executing provisions for the initiative and referendum on all laws...substantially according to what is know [sic] as the “Oregon plan.”
Id.
¶44 The subject of the people’s power to legislate through initiative and referendum consumed the convention more than any other subject. See id. at 1013–15 (indexing the various subjects addressed by delegates in the records of the convention); see also Leshy, supra, at 46; Bakken, supra, at 10. Discussion focused on issues concerning the extent of
the power of initiative and referendum for cities, towns, counties, and “other municipalit[ies],” Goff, supra, at 176-88; the percentage of voter signatures required to place a measure on the ballot to ensure the power could be fairly exercised, id. at 188-89, 195-97; whether providing for the initiative and referendum violated the Enabling Act‘s requirement that the constitution provide for a republican form of government, id. at 198-208; and whether including it in the constitution would impede achieving statehood by evoking a rejection by Congress or the President, Leshy, supra, at 104-06.
¶45 Regardless of the sometimes heatedly stated concerns, the convention adopted a constitution providing:
[T]he people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.
¶46 Voters ratified the constitution overwhelmingly on February 9, 1911. Canvass of the Returns, Ariz. Republican, Feb. 28, 1911, at 1 (stating that 12,187 votes were cast in favor of ratification compared to the 3,822 cast against). However, due to a provision permitting the recall of judicial officers, President Taft refused to approve the constitution as drafted. William H. Taft, Special Message of the President of the United States: Returning Without Approval House Joint Resolution No. 14, H.R. Doc. No. 62-106, at 1 (1911). Voters then ratified an amendment to the constitution eliminating the recall on December 12, 1911.6 Phillips Is Saved from Political Disaster: Recall Amendment, Ariz. Republican, Dec. 13, 1911, at 1.
¶47 In its first sessions, the Arizona legislature enacted numerous tax measures. To ensure exemption from referral, the legislature repeatedly complied with the provisions of
¶48 Another example from the same session concerns an act imposing taxes on real and personal property. 1912 Ariz. Sess. Laws ch. 64 (1st Spec. Sess.). In section eight of the act, the legislature stated that the tax measure was “necessary for the support and maintenance” of state departments and institutions and declared an emergency, giving the act immediate effect and exempting it from the referendum. Id. § 8; see also 1912 Ariz. Sess. Laws ch. 11, § 2 (Reg. Sess.) (repealing a mining tax in favor of a new property tax regime, which the legislature determined necessary to “provide funds for appropriations for the support and maintenance of the departments of State and all State institutions, and to preserve the public peace and safety,” and declaring an emergency so the law had immediate effect); 1912 Ariz. Sess. Laws ch. 39, § 8 (Reg. Sess.) (invoking the “public peace, health, [or] safety” as well as the “support and maintenance” requirements to levy a new tax on private car companies, which the legislature deemed necessary “for a more equal and uniform system of assessment and apportionment of taxes, and for the efficient collection of State taxes and revenue“); 1912 Ariz. Sess. Laws ch. 23, § 3 (1st Spec. Sess.) (declaring an emergency in order that a law imposing taxes on railroad corporations “to preserve the public peace, health and safety, and for the support and maintenance of the Departments of State and State institutions” would have immediate effect); 1913 Ariz. Sess. Laws ch. 73, § 8 (3d Spec. Sess.) (declaring law imposing an annual tax on real and personal property to be “necessary for the support and maintenance of the Departments of State and State Institutions“).
C. Early Supreme Court Decisions
¶50 The first case to consider
This sub[section] of the Constitution recognizing the people as the repository of all power has provided that all legislative acts passed by the Legislature shall be subject to the referendum except emergency measures. To give the people an opportunity to invoke the referendum, if they so choose, laws not emergent do not go into effect at once, but become operative 90 days after the final adjournment of the Legislature. Emergency laws when passed according to the
forms prescribed by the Constitution, become effective at once and prevent a referendum.
Id. at 547 (emphasis added). And the Court underscored the importance of the actions of the first legislature in interpreting
If we had greater doubt of the correctness of the construction that we have placed upon the constitutional provisions as affecting the enactment of emergency laws, we would still feel constrained, on account of the public and private interests involved, to heed the unbroken course of conduct by the other two departments. Many of the members of the constitutional convention were members of the first and other sessions of the Legislature. The president of the constitutional convention was the Governor of the state during the sessions of 1912 and 1915.
Id. at 554. The Court further noted it had “indorsed the rule that a construction of the fundamental law by members of the Legislature who were also members of the constitutional convention was entitled to great weight.” Id. at 554-55.7
¶51 This Court next considered
Whereas, the provisions of this act are necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, and this act is hereby exempted from the operation of the referendum provisions of the state Constitution, and shall take effect and be in full force and effect from and after its passage and its approval by the Governor.
[t]his reserved power, however, does not apply to acts requiring “earlier operation to preserve the public peace, health or safety,” nor to those providing “appropriations for the support and maintenance of the departments of state and of state institutions.” Enactments of this character may be made immediately effective and thus exempted from the referendum by the Legislature‘s stating in a separate section of the act why it is necessary and declaring the existence of an emergency.
Id. at 346-47 (emphasis added). The Court ultimately found the language of the act in question sufficient to exempt it from the referendum. Id. at 347-48.
¶52 In Warner, this Court affirmed Clark‘s and Orme‘s conclusion that exceptions to the referendum power are limited to specific categories of legislative acts that are explicitly identified as such and passed in a specific manner. 39 Ariz. at 213. Warner also addressed a provision within a larger act that appropriated monies “[t]o carry out the purposes of th[e] act.” Id. at 207. Opponents to referral of select provisions of the act, including the appropriations provision, argued that because the sections sought to be referred included an appropriation to aid a statewide taxing effort, it was for the support and maintenance of a department of state government and therefore could not be subject to the referendum in light of
¶53 The Warner Court noted that “[t]he third clause of this sub[section,] which sets forth the condition under which emergency measures shall be considered passed by the Legislature[,] shows clearly that no act is withdrawn from the referendum ipso facto under the Constitution of this state.” Id. at 213. The Warner Court further stated:
While it is true these two classes of laws are excepted from the referendum, it will be observed that they are not given this status merely because of their nature or the need for their earlier operation than ninety days but because, these things being true, the Legislature, which is the judge of the question whether they should become immediately operative, recognizes this necessity, expresses it in a separate section of the act and follows this with approval by a two-thirds vote of each house; in other words, incorporates in the act the emergency clause. In no other way may a law enacted by the Legislature of this state, regardless of its nature or the urgency for its early operation, be withdrawn from the referendum.
Id. (internal citation omitted) (emphasis added).
¶54 Reasoning that the phrases “immediately necessary” and “require earlier operation” applied to each class of laws as referenced in the first and second clauses, the Court further stated that “it was the undoubted purpose of the framers of the Constitution to provide that every act passed by the Legislature should be referable unless it be a safety or support measure requiring immediate, or earlier operation than ninety days,” rendering them emergency measures and eligible for exemption from the referendum. Id. at 214.
¶55 Fifteen years later, this Court took up another appropriations measure requiring the interpretation of
¶56 The Garvey Court expressly found that the appropriation was for the support and maintenance of a department of state government and therefore covered by
¶57 Free to interpret
It is not logical to assume that the creators of these departments and institutions set up for the purpose of conducting government, intended that their functions might be disrupted for long periods by a small minority. We cannot believe that the framers of the constitution, or the voters who adopted it, intended to make it possible for a small percentage of the voters to stop the functions of the various departments of government by cutting off their appropriations through the operation of the referendum. This does not make sense.
¶58 This assessment followed the point that a distinction should continue to be made between appropriations measures for new departments versus existing departments:
We are satisfied that the framers of the constitution and the people who voted for its adoption understood and intended that appropriations for the support and maintenance of the departments of the state government and state institutions were not to be subject to the referendum. The departments of the state and its various institutions come into existence only through the majority vote of the people, or of the legislature. Where a new department of state is set up, or a new institution provided by the legislature, its creation is subject to the will of the people under the referendum unless the law is passed by a two-thirds vote, and is an emergency measure.
¶59 Garvey then considered
¶60 Garvey‘s holding that the term “emergency measures” qualifies only public health laws is not the best interpretation of the text and is undermined by the history of the constitutional convention, the practice of the first legislature, and the earliest understanding of
¶61 Before engaging in an analysis of
¶62 Just as Garvey noted, “[w]here previous decisions involve only questions of public interest and which do not affect private rights (the case here) the doctrine of stare decisis is greatly relaxed. This court has not hesitated to review its prior opinions upon questions of public interest and to overrule the former holdings.” 64 Ariz. at 350 (internal citations omitted). Nevertheless, “any departure from the doctrine of stare decisis demands special justification.” Hickman, 205 Ariz. at 200 ¶ 37 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). And, while this is a partial dissent, the ultimate impact on the constitutional reservation of the power of the referendum requires more than just an outline of an interpretive disagreement with Garvey or the majority.
¶64 First, Garvey‘s categorical exemption of appropriations measures from the referendum, even if limited to those for currently existing state departments and institutions, Garvey, 64 Ariz. at 354, is not compelled by the text of
¶65 But even if you read the text in this way, which we agree you should, see infra ¶¶ 76-79, it does not mean that support and maintenance measures are categorically exempt. Instead, it simply means that there are two distinct categories of laws that can be exempted from the referendum and that there are two different bases on which they can be exempted: if they require earlier operation to preserve the public peace, health, or safety, or if they are appropriations for the support and maintenance of state departments.
¶66 Equally problematic with the reasoning about emergency measures is that it allowed Garvey to make a distinction between existing and new state departments. See Garvey, 64 Ariz. at 346-48. If appropriations are for an existing department, they cannot be emergent and are therefore exempt. Id. at 354. However, if it is a new department, then it could be subject to the referendum. Id. at 355. This makes no sense. An
¶67 Second, such an interpretation does not advance a clear intent of the framers to enshrine in the constitution the reserved power of the referendum for the people “to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.”
¶68 Third, the Garvey decision did not result from clear analysis or persuasive reasoning. The Garvey Court failed to fully consider the entirety of
¶69 Instead, the Court merely substituted its judgment for the delegates who drafted the constitution, ran roughshod over the people who ratified it, and bolstered its holding by observing with incredulity that
¶70 The Court failed to address the difference between a measure being subject to a referendum and the effort required to actually place one on the ballot. This distinction was important to the convention delegates
¶71 Fourth, overturning Garvey would return this Court to a consistent understanding of the scope of measures exempt from the referendum as discussed in Warner. Warner‘s overall rationale gives effect to each clause of
¶72 Fifth, the holding of Garvey as applied to the facts of this case renders one more subset of measures, tax revenue measures, wholly exempt from the referendum without the need to comply with the emergency measures otherwise proscribed by
¶73 Garvey is in error and should be overruled. Although this Court has “a strong respect for precedent, this respect is a reasonable one which balks at the perpetuation of error, and the doctrine of stare decisis should not prevail when a departure therefrom is necessary to avoid the perpetuation of pernicious error.” Garvey, 64 Ariz. at 350 (quoting State ex rel. La Prade v. Cox, 43 Ariz. 174, 183 (1934)); see also Lowing, 176 Ariz. at 108 (“[A]lthough we have a healthy respect for stare decisis, we will not be bound by a rule with nothing more than precedent to recommend it.“).
III. ANALYSIS OF SECTION 1(3)
¶74 We now turn to a more appropriate interpretation of
A. What can be exempted?
¶75 The first clause of
¶76 At this point, Warner and Garvey struggled to understand the effect of the phrase “immediately necessary” in discerning the nature of the two categories of laws that could be exempt from the referendum and engaged in differing interpretive methods. Warner, 39 Ariz. at 213-14; Garvey, 64 Ariz. at 353. However, a plain reading of the first clause in context of the entirety of
¶77 When read in conjunction with the second clause, it is not necessary to engage in further interpretation to discern the phrase‘s application to support and maintenance laws. It can, and should, be read as only characteristic of laws for public peace, health, or safety. But this does not mean that support and maintenance measures are categorically exempt from the referendum.
¶78 The second clause generally requires that legislative acts do not become operative until ninety days after the close of the legislative session to preserve the exercise of the referendum power with two exceptions that otherwise permit laws to go into immediate effect.9
¶79 Reading the two clauses together for the first category of laws provides that “laws immediately necessary for the preservation of the public peace, health, or safety” may be exempt from the referendum because they “require earlier operation to preserve the public peace, health, or safety.” Similarly, reading the two clauses together for the second category provides that laws “for the support and maintenance of the departments of the state government and state institutions” may be exempt when they “provide appropriations for the support and maintenance of the departments of the state and of state institutions.”
¶80 Because we read the text as it is, we disavow Warner‘s analysis that concluded “immediately necessary” and “earlier operation” applied to both categories of laws. Warner, 39 Ariz. at 211-12. It is not necessary to apply either phrase to both categories of laws to give proper effect to
¶81 Importantly, though, there is nothing restrictive in the second clause that would prevent its application to either category of laws. For example, the legislature could enact a measure for the preservation of public health that was immediately necessary and justify it as exempt because it was an appropriation for the support and maintenance of the Department of Health Services. Monies appropriated for pandemic operations could be one such possibility.
¶82 Likewise, there is nothing that would prevent the legislature from identifying a tax revenue measure for the support and maintenance of a department of state that “require[d] earlier operation to preserve the public peace, health, or safety.” In fact, the first legislature did just that with an act imposing a tax to fund the State Tax Commission. 1912 Ariz. Sess. Laws ch. 39, § 8 (Reg. Sess.). The justification set forth was that “the provisions of th[e] Act are necessary to the public peace, health, safety, and for the support and maintenance of the departments of State government and State institutions ....” Id.
¶83 This interpretation of the first two clauses of
C. How may laws be exempted from a referendum?
¶84 The last clause of
¶85 Thus, the limitations, exceptions, and extra steps necessary to exempt a legislative act from the referendum pursuant to
IV. APPLICATION TO SB 1828
¶86 As a tax revenue measure, SB 1828 qualifies as a law for support and maintenance of a state department or institution. See supra ¶ 1. It is therefore eligible for exemption from the referendum if the legislature has properly identified it as an emergency measure and enacted it accordingly, which it did not. Although it received the governor‘s approval, it does not contain a separate section stating why such a law is necessary and did not receive a two-thirds vote by roll call in either the House or Senate. Fifty-Fifth Legislature - First Regular Session Bill Status Inquiry: SB1828, Ariz. Legislature, https://apps.azleg.gov/BillStatus/BillOverview/76142 (last visited Aug. 15, 2022) (documenting the bill‘s passage by a 16-14 vote in the Senate and a 31-29 vote in the House).
¶87 Therefore, we would affirm the trial court, though not due to the nature of the measure but because the measure does not comply with the requirements of