Louis Hoffman, a Qualified Elector; and Amy Chan, a Qualified Elector, Plaintiffs/Appellants,
Michele Reagan, in Her Official Capacity as Arizona Secretary of State; State of Arizona, Defendants/Appellees, and Steve Yarbrough, in His Official Capacity as President of the Arizona Senate; J.D. Mesnard, in His Official Capacity as Speaker of the House of Representatives, Special Intervenors.
from the Superior Court in Maricopa County The Honorable
Teresa A. Sanders, Judge No. CV2018-007353
J. Adelman, Arizona Center for Law in the Public Interest,
Phoenix, Attorneys for Louis Hoffman and Amy Chan.
Brnovich, Arizona Attorney General, Rusty D. Crandell,
Assistant Solicitor General, Robert J. Makar, Assistant
Attorney General, Phoenix, Attorneys for State of Arizona and
Secretary of State Michele Reagan.
Michael T. Liburdi, Daniel B. Seiden, Willis M. Wagner,
Greenberg Traurig, LLP, Phoenix; Jeffrey J. Kros, Office of
the President, Arizona State Senate, Phoenix; Joshua A.
Kredit, Office of the Speaker, Arizona House of
Representatives, Attorneys for Steve Yarbrough and J.D.
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER,
BOLICK, GOULD, and LOPEZ joined.
House Concurrent Resolution 2007 ("HCR 2007") is a
legislatively referred referendum that, if approved by the
voters, will amend Arizona's Clean Election Act in two
respects. In a decision order, we ruled that HCR 2007 does
not violate the "single subject rule" - our
constitutional requirement that "[e]very act shall
embrace but one subject and matter properly connected
therewith… which subject shall be embraced in the
title…." Ariz. Const. art. 4, part 2, § 13.
This opinion further explains our ruling.
In 1998, the people of Arizona approved the Citizens Clean
Election Act, A.R.S. §§ 16-940 to -961
("CCEA"), to "create a clean elections system
that will improve the integrity of Arizona state
government." A.R.S. § 16-940. The CCEA created the
Citizens Clean Elections Commission (the
"Commission"), which is charged with voter
education and enforcement of the Act. A.R.S. §§
16-955 to -957. The Commission comprises five members, no
more than two of whom may be from the same political party.
A.R.S. § 16-955(A). Members are appointed for five-year
staggered terms, with appointment authority alternating
between the governor and the highest-ranking official holding
a statewide office who is not a member of the governor's
party. A.R.S. § 16-955(D).
Seeking to amend two aspects of the CCEA, the legislature
approved HCR 2007 pursuant to its authority under article 4,
part 1, section 1(3) of the Arizona Constitution to refer
"any measure…enacted by the legislature" for
approval by the voters. The measure, titled "An Act
Amending Sections 16-948 and 16-956, Arizona Revised
Statutes; Relating to the Citizens Clean Elections Act,"
would amend the CCEA by prohibiting the transfer of clean
elections funds by candidates to political parties and would
subject the Commission's rule-making process to review by
the Governor's Regulatory Review Council
("GRRC"), which reviews and approves rules proposed
by various state agencies. After its enactment by the
legislature, HCR 2007 was referred to the Secretary of State
to be placed on the November 2018 ballot.
Pursuant to A.R.S. § 19-161, Louis Hoffman, a drafter of
the CCEA and former commission member, and Amy Chan, a
current commission member acting in her individual capacity
("Challengers"), filed suit requesting the trial
court to enjoin the Secretary from placing HCR 2007 on the
ballot because the measure violates the single subject rule.
The trial court dismissed the action, relying on Arizona
Chamber of Commerce & Industry v. Kiley, 242 Ariz.
533 (2017), to hold that the rule does not apply to HCR 2007.
The trial court reasoned that because Kiley held
that the single subject rule, contained in article 4, part 2
of the Arizona Constitution, does not apply to initiatives
approved by the voters under article 4, part 1, section 1(2),
the rule also should not apply to measures referred by the
legislature for the voters' approval under article 4,
part 1, section 1(3). Challengers filed an expedited appeal
pursuant to A.R.S. § 19-161(B).
As a preliminary matter, the State defendants and the
Intervenors ("Respondents") argue that
Challengers' lawsuit is premature because the single
subject rule only applies to "acts" and HCR 2007
will not be an "act" before it is approved by the
Respondents correctly note that the power of the people
themselves to refer legislative actions to the ballot for
approval or rejection extends only to legislative acts,
rather than "bills under consideration,"
Wennerstrom v. City of Mesa,169 Ariz. 485, 495
(1991), and that "[t]o be considered legislation [a]
measure must enact something." Saggio v.
Connelly,147 Ariz. 240, 241 (1985). These observations,
however, do not answer whether a challenge may be brought to
the legislature's process for referring a ...