Arizona Together v. Brewer

149 P.3d 742, 214 Ariz. 118, 496 Ariz. Adv. Rep. 51, 2007 Ariz. LEXIS 3
CourtArizona Supreme Court
DecidedJanuary 12, 2007
DocketCV-06-0277-AP/EL
StatusPublished
Cited by13 cases

This text of 149 P.3d 742 (Arizona Together v. Brewer) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Together v. Brewer, 149 P.3d 742, 214 Ariz. 118, 496 Ariz. Adv. Rep. 51, 2007 Ariz. LEXIS 3 (Ark. 2007).

Opinions

OPINION

McGREGOR, Chief Justice.

¶ 1 The question presented is whether Proposition 107, a constitutional amendment proposed by voter initiative, complies with the separate amendment rule of Article 21, Section 1 of the Arizona Constitution. Proposition 107 would amend the constitution by adding a new Article 30 defining “marriage” and prohibiting the state and its political subdivisions from creating or recognizing a legal status for unmarried persons similar to that of marriage.2 The appellants, opponents of Proposition 107, brought this action pursuant to Arizona Revised Statutes (A.R.S.) section 19-122.C (2002) to enjoin the Secretary of State from placing the measure on the ballot in the 2006 general election. Appellant Arizona Together argues that Proposition 107 does not constitute a single amendment, but rather is a composite of three unrelated provisions. In particular, Arizona Together asserts that, if enacted, Proposition 107 not only would define marriage but also could (1) prohibit same sex marriages, (2) prohibit civil unions and domestic partnerships, and (3) prohibit the state and its political subdivisions from conferring benefits and rights on domestic partners. After a hearing, the superior court concluded that Proposition 107 constitutes a single amendment in light of the test established by this Court in Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934). On August 31, 2006, we entered an order affirming the judgment of the superior court, with this opinion to follow.3

I.

¶2 Whether a voter initiative complies with the separate amendment rule of Article 21, Section 1 presents a question of law, which we review de novo. See Clean Elections Inst., Inc. v. Brewer, 209 Ariz. 241, 243 ¶ 2, 99 P.3d 570, 572 (2004).

A.

¶ 3 The Arizona Constitution requires that “[i]f more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.” Ariz. Const. art. 21, § 1. “The clear import of this provision is that voters must be allowed to express their separate opinion as to each proposed constitutional amendment.” Clean Elections, 209 Ariz. at 244 ¶ 7, 99 P.3d at 573. The separate amendment rule serves a gatekeeping function by protecting the integrity of the constitutional amendment process from the “pernicious practice of ‘log-rolling.’ ” Kerby, 44 Ariz. at 214, 36 P.2d at 551. As we have often noted, our constitution requires that “[cjhanges suggested thereto should represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire.” Id. at 221, 36 P.2d at 554; see also Clean Elections, 209 Ariz. at 244 ¶ 9, 99 P.3d at 573; Korte v. Bayless, 199 Ariz. 173, 177 ¶ 12, 16 P.3d 200, 204 (2001); Slayton v. Shumway, 166 Ariz. 87, 90, 800 P.2d 590, 593 (1990); Tilson v. Mofford, 153 Ariz. 468, 471, 737 P.2d 1367, 1370 (1987); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 396, 265 P.2d 447, 451 (1953).

[121]*121¶ 4 This Court is obligated to ensure that voters receive an opportunity to cast separate votes for separate amendments. At the same time, we must not apply the separate amendment rule in a manner that unduly encumbers the right of the people to amend the constitution. Accordingly, we have consistently sought to strike a balance between allowing voters a chance to express separate opinions on proposed amendments and ensuring that “complex solutions to modern legislative problems” are not precluded by “an unduly narrow reading” of the separate amendment rule. Korte, 199 Ariz. at 177 ¶ 13, 16 P.3d at 204.

¶ 5 We first enunciated the test to maintain this balance in Kerby:

If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition [of Article 21, Section 1].

44 Ariz. at 221, 36 P.2d at 554. Our subsequent application of the separate amendment rule has distilled the general language in Kerby. We now ask whether the provisions of a proposed amendment “are sufficiently related to a common purpose or principle that the proposal can be said to ‘constitute a consistent and workable whole on the general topic embraced,’ that, ‘logically speaking, ... should stand or fall as a whole.’ ” Korte, 199 Ariz. at 177 ¶ 10, 16 P.3d at 204 (footnote omitted) (quoting Kerby, 44 Ariz. at 221, 36 P.2d at 554).

¶ 6 This “common purpose or principle” test requires us to analyze two components. First, the proposed amendment’s provisions must be topically related: All the provisions must embrace the same “general topic.” See Kerby, 44 Ariz. at 221, 36 P.2d at 554. Second, the provisions must be sufficiently interrelated so as to form a consistent and workable proposition that “logically speaking ... should stand or fall as a whole.” Id. If the provisions of a proposal exhibit both topicality and interrelatedness, we can conclude that the provisions have a common purpose or principle and therefore comply with the mandate of Article 21, Section 1.

B.

¶ 7 The parties agree that Proposition 107, despite being drafted as a single sentence, can be divided into two provisions. The first requires that “only a union between one man and one woman shall be valid or recognized as a marriage by this state or its political subdivisions.” Proposition 107, § 1. The second provides that “no legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage.” Id. The initial question, then, is whether both provisions embrace the same general topic.

¶ 8 We conclude that the provisions are topically related. The text of Proposition 107 identifies its purpose as being to “preserve and protect marriage in this state.” Id. The first provision adopts an exclusive definition of marriage, while the second emphasizes that the state cannot circumvent the definition by conferring any other marriage-like legal status upon unmarried individuals. Consequently, both provisions of Proposition 107 embrace the same general topic.4

[122]*122¶ 9 This conclusion does not end our inquiry.

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Bluebook (online)
149 P.3d 742, 214 Ariz. 118, 496 Ariz. Adv. Rep. 51, 2007 Ariz. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-together-v-brewer-ariz-2007.