Hoffman v. Reagan

          Appeal from the Superior Court in Maricopa County The Honorable Teresa A. Sanders, Judge No. CV2018-007353

          Daniel J. Adelman, Arizona Center for Law in the Public Interest, Phoenix, Attorneys for Louis Hoffman and Amy Chan.

          Mark 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. Mesnard.

          CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          BALES CHIEF JUSTICE.

         ¶1 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.

         I.

         ¶2 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).

         ¶3 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.

         ¶4 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).

         II.

         ¶5 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 voters.

         ¶6 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 ...