SUPREME COURT OF ARIZONA En Banc
JAMES McLAUGHLIN; UNITED FOOD & ) Arizona Supreme Court COMMERCIAL WORKERS LOCAL 99, ) No. CV-10-0205-AP/EL ) Plaintiffs/Appellees, ) Maricopa County ) Superior Court v. ) No. CV2010-014942 ) KEN BENNETT, in his official ) capacity as Secretary of State ) for the State of Arizona; ) O P I N I O N LEGISLATURE OF THE STATE OF ) ARIZONA; BOARD OF SUPERVISORS OF ) MARICOPA COUNTY, in its official ) capacity and on behalf of all ) counties in the State, ) ) Defendants/Appellants, ) ) and ) ) S.O.S. BALLOT - IN SUPPORT OF ) SCR 1026 COMMITTEE (ID ) 201000023); and ARIZONA CHAMBER ) OF COMMERCE & INDUSTRY, ) ) Defendants-Intervenors. ) __________________________________)
Appeal from the Superior Court in Maricopa County The Honorable Robert H. Oberbillig, Judge
AFFIRMED ________________________________________________________________
DAVIS, COWELL & BOWE, LLP San Francisco, CA By Andrew J. Kahn Elizabeth A. Lawrence
and
1 SNOW & CARPIO, P.L.C. Phoenix By X. Alex Carpio Attorneys for James McLaughlin and United Food & Drug Commercial Workers Local 99 AFL-CIO
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Barbara A. Bailey, Assistant Attorney General Carrie Jane Brennan, Assistant Attorney General Attorneys for Ken Bennett
ARIZONA STATE LEGISLATURE Phoenix By Gregrey G. Jernigan By Peter A. Gentala Attorneys for Arizona State Legislature
SCHARF-NORTON CENTER FOR CONSTITUTIONAL Phoenix LITIGATION AT THE GOLDWATER INSTITUTE By Clint Bolick Gustavo E. Schneider Carrie Ann Sitren Attorneys for S.O.S. Ballot and Arizona Chamber of Commerce and Industry ________________________________________________________________
P E L A N D E R, Justice
¶1 The question presented is whether Proposition 108, a
constitutional amendment referred to the people by the
legislature, complies with the separate amendment rule of
Article 21, Section 1 of the Arizona Constitution. The superior
court concluded that Proposition 108 violates that rule. On
August 3, 2010, we entered an order affirming the court’s
judgment. This opinion explains our reasoning.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Senate Concurrent Resolution (“SCR”) 1026 was
introduced in early 2009, approved by both chambers of the
legislature, and transmitted in July 2009 to the Secretary of 2 State for placement on the November 2010 general election
ballot. This resolution, designated as Proposition 108, states:
To preserve and protect the fundamental right of individuals to vote by secret ballot, where local, state or federal law requires elections for public offices or for ballot measures, or requires designations or authorizations for employee representation, the right of individuals to vote by secret ballot shall be guaranteed.
The proposition, if passed, would add a new section 36 to
Article 2 of the Arizona Constitution, entitled “Right to Secret
Ballot.”
¶3 In May 2010, appellees (collectively, “McLaughlin”)
filed a special action, alleging Proposition 108 violates
Article 21, Section 1. After a hearing, the superior court
rejected the laches defense asserted by appellants S.O.S.
Ballot, Arizona Chamber of Commerce & Industry, and the Arizona
Legislature (collectively, “S.O.S. Ballot”), and ruled that the
provisions in Proposition 108 are not sufficiently interrelated
to constitute a single amendment. Accordingly, the court
enjoined the proposition’s placement on the upcoming ballot.
DISCUSSION
¶4 S.O.S. Ballot argues that the equitable doctrine of
laches bars McLaughlin’s challenge and that Proposition 108
complies with the separate amendment rule. We have jurisdiction
over this direct appeal pursuant to Arizona Revised Statutes
(“A.R.S.”) section 19-122(C) (Supp. 2009) and Arizona Rule of 3 Civil Appellate Procedure 8.1(h).
I. Laches
¶5 “In election matters, time is of the essence because
disputes concerning election and petition issues must be
initiated and resolved, allowing time for the preparation and
printing of [publicity pamphlets and] absentee voting ballots.”
Harris v. Purcell, 193 Ariz. 409, 412 ¶ 15, 973 P.2d 1166, 1169
(1998). “[T]he laches doctrine seeks to prevent dilatory
conduct and will bar a claim if a party’s unreasonable delay
prejudices the opposing party or the administration of justice.”
Lubin v. Thomas, 213 Ariz. 496, 497 ¶ 10, 144 P.3d 510, 511
(2006). We review a trial court’s decision on laches for abuse
of discretion. See Korte v. Bayless, 199 Ariz. 173, 174 ¶ 3, 16
P.3d 200, 201 (2001).
¶6 Although McLauglin filed this action ten months after
Proposition 108 was sent to the Secretary of State, “[d]elay
alone will not establish a laches defense.” League of Ariz.
Cities & Towns v. Martin, 219 Ariz. 556, 558 ¶ 6, 201 P.3d 517,
519 (2009). Even if we assume the delay was unreasonable,
S.O.S. Ballot has not established prejudice. McLaughlin filed
this action almost sixteen weeks before the printing deadline
for the Secretary of State’s publicity pamphlet and, therefore,
did not “deprive judges of the ability to fairly and reasonably
process and consider the issues.” Mathieu v. Mahoney, 174 Ariz. 4 456, 461, 851 P.2d 81, 86 (1993); see Korte, 199 Ariz. at 174-75
¶ 3, 16 P.3d at 201-02 (rejecting laches defense when
proposition challenge was filed almost eight weeks before the
deadline for mailing the publicity pamphlet, “allow[ing]
sufficient time to render a decision”). S.O.S. Ballot’s claim
of harm from the delayed filing is also undermined by its
request for an extended briefing schedule in superior court.
Because S.O.S. Ballot failed to show prejudice, and because
McLaughlin’s challenge raised substantial questions about
Proposition 108’s constitutionality, the court did not abuse its
discretion in refusing to apply laches to bar the claim.1
II. Separate Amendment Rule
¶7 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
1 S.O.S. Ballot argues that had the complaint been filed earlier and the proposition invalidated, the legislature could have modified Proposition 108. See League of Ariz. Cities & Towns, 219 Ariz. at 559 ¶ 10, 201 P.3d at 520. But S.O.S. Ballot suffered no prejudice from the delay. That proponents of a constitutional amendment may have limited time to correct a violation of the separate amendment rule is not itself a ground to find laches. Moreover, in response to our ruling, the governor convened a special session on August 9 to consider this issue, Governor’s Proclamation of August 5, 2010, culminating in a new proposition that appears to contain a single amendment, see SCR 1001, 49th Leg., 9th Spec. Sess. (2010) (“The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”). 5 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 Inst., Inc. v. Brewer, 209 Ariz. 241, 244 ¶ 7,
99 P.3d 570, 573 (2004); see Kerby v. Luhrs, 44 Ariz. 208, 214,
36 P.2d 549, 551 (1934) (recognizing the separate amendment rule
was “intended to prevent the pernicious practice of ‘log-
rolling’ in the submission of a constitutional amendment”). We
review de novo whether a proposition complies with the separate
amendment rule. See Ariz. Together v. Brewer, 214 Ariz. 118,
120 ¶ 2, 149 P.3d 742, 744 (2007).
¶8 In a separate amendment challenge, we examine whether
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 176-77 ¶ 10, 16 P.3d at 203-
04 (quoting Kerby, 44 Ariz. at 221, 36 P.2d at 554). This test
requires us to analyze (1) whether a proposition’s provisions
are “topically related,” and (2) whether they are “sufficiently
interrelated so as to form a consistent and workable
proposition.” Ariz. Together, 214 Ariz. at 121 ¶ 6, 149 P.3d at
745 (internal citation and quotation marks omitted). A 6 proposition’s provisions, therefore, must “exhibit both
topicality and interrelatedness” to comply with the separate
amendment rule. Id.
¶9 Like the proposed amendment in Arizona Together,
Proposition 108 “can be divided into two provisions.” Id. at
121 ¶ 7, 149 P.3d at 745. The first provision guarantees the
right to vote by secret ballot in public elections; the second
establishes an individual right to a secret ballot election to
determine union representation. Both provisions pertain to
secret ballots and thus arguably are topically related, a point
McLaughlin does not seriously contest.
¶10 Even if we assume the provisions of Proposition 108
meet the topicality requirement, however, they must also be
sufficiently interrelated to comply with the separate amendment
rule. To assess whether the provisions are sufficiently
interrelated, we consider the following factors:
whether various provisions are facially related, whether all the matters addressed by [the proposition] concern a single section of the constitution, whether the voters or the legislature historically has treated the matters addressed as one subject, and whether the various provisions are qualitatively similar in their effect on either procedural or substantive law.
Id. at 122 ¶ 10, 149 P.2d at 746 (quoting Korte, 199 Ariz. at
177 ¶ 11, 16 P.3d at 204).2
2 Arizona Together recognized that these factors are not exclusive and may not all apply in a particular case, but they 7 ¶11 S.O.S. Ballot contends Proposition 108’s provisions
are facially related because both public elections and union
representation elections are “government-administered and/or
supervised.” As S.O.S. Ballot observes, secret ballots may be
used in both contexts to protect individual voters from
coercion. But this common purpose primarily pertains to the
topicality requirement and does not establish a relationship
between public elections and union representation.
¶12 Relying heavily on Arizona Together, S.O.S. Ballot
attempts to analogize the “marriage” proposition in that case to
Proposition 108. We are not persuaded. The two provisions
involved in Arizona Together both concerned marriage and were
intended “to preserve and protect” that institution. 214 Ariz.
at 122 ¶ 11, 149 P.3d at 746. The provisions there were
facially related because the first adopted a definition of
marriage that the second made exclusive in terms of legal
status. Although S.O.S. Ballot argues that Proposition 108’s
two provisions establish a fundamental right to a “secret
ballot” for public elections and union representation, those
contexts are quite different and wholly unrelated. The type of
“facial relatedness” S.O.S. Ballot urges would reduce that
can provide guidance for the Court in assessing whether provisions are sufficiently interrelated. See 214 Ariz. at 122- 23 ¶¶ 10-17, 149 P.3d at 746-47.
8 component of the “interrelatedness” test to a mere repetition of
the topicality requirement. Contrary to S.O.S. Ballot’s
contention, significant “differences between the two contexts”
are pertinent to the inquiry on interrelatedness, even though
“complete overlap” of a proposition’s provisions is not
required.
¶13 Proposition 108 also does not “concern a single
section of the constitution.” Ariz. Together, 214 Ariz. at 122
¶ 10, 149 P.3d at 746 (quotation omitted). Secrecy of voting in
public elections is already protected in Article 7, Section 1 of
the Arizona Constitution, which since statehood has provided:
“All elections by the people shall be by ballot, or by such
other method as may be prescribed by law; [p]rovided, that
secrecy in voting shall be preserved.” If approved, Proposition
108 would be added as a new section in Article 2, resulting in
two separate but partly overlapping constitutional provisions
that both ensure secrecy in public elections.
¶14 As S.O.S Ballot acknowledges, public elections and
labor representation historically have not been linked together
in Arizona law. The Arizona Constitution addresses public
elections in Article 7, labor in Article 18, and the right to
work in Article 25. In addition, public elections are primarily
governed by state law, see A.R.S. Title 16 (elections and
electors), Title 19 (initiative, referendum, and recall), while 9 union elections are generally regulated by federal law, see
National Labor Relations Act, 29 U.S.C. §§ 151-69 (2006).
Although S.O.S. Ballot cites federal case law in an attempt to
link public elections and union representation, we will not
focus in a separate amendment challenge on the historical
treatment of such matters by the federal courts. Cf. Ariz.
Together, 214 Ariz. at 123 ¶ 14, 149 P.3d at 747 (declining to
consider the law of other states).
¶15 Moreover, the provisions in Proposition 108 are not
“qualitatively similar in their effect” on Arizona law. Id. at
122 ¶ 10, 149 P.3d at 746 (quotation omitted). Proposition 108
would substantively amend the Arizona Constitution in two
distinct ways. First, the proposition would create a new right
to vote exclusively by secret ballot for “designations or
authorizations for employee representation,” clearly the driving
motive for its proponents. See Senate Fact Sheet for SCR 1026,
49th Leg., 1st Reg. Sess. (2009) (discussing the proposed change
in federal labor law as the background for the resolution).
¶16 Second, Proposition 108 would not only affirm the
existing right to secrecy in public elections, but would also
amend Article 7, Section 1 by requiring the use of ballots in
public elections. Such an amendment would preclude the
legislature from adopting, pursuant to Article 7, Section 1,
“other [voting] method[s]” it might otherwise choose to 10 “prescribe[] by law,” provided secrecy is preserved. See People
ex rel. Deister v. Wintermute, 86 N.E. 818, 819 (N.Y. 1909)
(stating that New York’s constitutional provision, substantially
identical to Article 7, Section 1, was included “to enable the
substitution of voting machines, if found practicable”); see
also The Records of the Arizona Constitutional Convention of
1910, at 559-60 (John S. Goff ed., 1990) (documenting that
Arizona’s framers similarly fashioned Article 7, Section 1 to
preserve the state’s ability to adopt voting machines).
¶17 Proposition 108 is distinguishable from other
propositions we have found constitutional because the provisions
here do not constitute a comprehensive approach to a general
topic, see Korte, 199 Ariz. at 178 ¶ 15, 16 P.3d at 205, or a
“unified pronouncement” on a constitutional definition, Ariz.
Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747. In contrast
to the marriage proposition in Arizona Together, the provisions
in Proposition 108 do not “clearly share a logical relationship”
or “derive meaning and effect from the mandates contained in the
other provision.” Id.; see id. at 128 ¶ 41, 149 P.3d at 752
(Hurwitz, J., concurring) (stating that interrelatedness
requires “a reasonable or logical relationship of the various
provisions with each other, and not simply with the broader
topic that they cover”); see also Slayton v. Shumway, 166 Ariz.
87, 92, 800 P.2d 590, 595 (1990) (finding the provisions of a 11 victims’ rights initiative, as interpreted by this Court, were
“a consistent and workable whole on the general topic of
victims’ rights and protections” (citation and internal
quotation marks omitted)).
¶18 Proposition 108’s provisions are not sufficiently
interrelated to satisfy the separate amendment rule. Therefore,
we hold that Proposition 108 violates Article 21, Section 1 of
the Arizona Constitution.3
CONCLUSION
¶19 For the reasons set forth above, the judgment of the
superior court is affirmed.
_____________________________________ A. John Pelander, Justice
CONCURRING:
_____________________________________ Rebecca White Berch, Chief Justice
3 In Colorado and Nevada, similar initiatives were found to violate the state’s single subject rule. Colorado Secretary of State, Proposed Initiative #15, available at http://www.elections .colorado.gov/Content/Documents/Initiatives/Title%20Board%20Filin gs/2009-2010_Filings/Filings/Final.15.pdf (last visited Aug. 20, 2010); Colorado Initiative Title Setting Board, Proposed Initiative #15 Results, available at http://www.elections.colo- rado.gov/Content/Documents/Initiatives/Title%20Board%20Filings/20 09-2010_Filings/Results/results_15.pdf (last visited Aug. 20, 2010); Nev. State AFL-CIO v. SOS Ballot Nev., No. 09-OC-00562 1B (Nev. 1st Dist. Feb. 25, 2010) (unpublished order). Cf. In re Title, Ballot Title, and Submission Clause for 2009-2010 #24, 218 P.3d 350, 352 (Colo. 2009) (finding other initiatives securing the right to secret ballots in employee representation elections only did not violate the state’s single subject requirement). 12 _____________________________________ Andrew D. Hurwitz, Vice Chief Justice
_____________________________________ W. Scott Bales, Justice
_____________________________________ Michael D. Ryan, Justice (Retired)
H U R W I T Z, Vice Chief Justice, concurring
¶20 In Arizona Together v. Brewer, this Court “clear[ed]
out a considerable amount of our jurisprudential underbrush”
concerning Article 21, Section 1. 214 Ariz. 118, 127 ¶ 31, 149
P.3d 742, 751 (2007) (Hurwitz, J., concurring). Today’s opinion
faithfully applies Arizona Together. I write separately because,
as in Arizona Together, I am concerned with the Court’s focus on
four specific “objective factors” in determining whether a
proposed amendment violates Article 21, Section 1. See id. at
129 ¶ 43, 149 P.3d at 753.
I.
¶21 Because most proposed constitutional amendments will
involve one general topic, the critical question in separate
amendment cases is typically whether the proposed amendment’s
various provisions also are logically interrelated. Id. at 127-
13 28 ¶¶ 33-36, 149 P.3d at 751-52. Proposition 108’s proponents
urge that it meets this test because its provisions all relate to
voting by secret ballot. But, as the Court notes today, see ¶ 11
supra, although this may suffice to establish topicality, it does
not demonstrate interrelatedness. Were such the case, a
constitutional amendment affirming the use of secret ballots in
public elections and requiring this Court to elect the Chief
Justice in the same way would qualify as a single amendment.
¶22 Interrelatedness requires something more, a logical
relationship of the various provisions with each other, so that
they “constitute a consistent and workable whole on the general
topic” and “logically speaking, they should stand or fall as a
whole.” Kerby v. Luhrs, 44 Ariz. 208, 221, 36 P.2d 549, 554
(1934). Proposition 108 fails that test.
¶23 Proposition 108, as the Court notes, has two
independent provisions. The first affirms the guarantee of
secrecy in public elections already contained in Article 7,
Section 1, albeit without mentioning that such a guarantee
already exists. Perhaps inadvertently, this same provision also
seemingly abrogates the legislature’s existing power under
Article 7, Section 1 to authorize secret elections through
mechanisms other than ballots, such as voting machines. The
second provision in Proposition 108 creates an entirely new
14 constitutional right to vote by secret ballot in union
representation designations or authorizations.
¶24 The provision relating to public elections simply has
no effect on the one relating to union designations. The
efficacy of the provision relating to unions is neither enhanced
nor diminished by the provision relating to public elections.
Nor is Proposition 108 an integrated solution to a perceived
problem. This stands in stark contrast to Arizona Together, in
which one provision defined marriage and the other provision made
that definition exclusive in terms of legal status. Arizona
Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747. That amendment
connected its provisions as a logical whole. Here, the whole is
nothing more than the bare sum of its unrelated parts. Neither
part operates in tandem with the other, see id. at 122 ¶ 12, 149
P.3d at 746, nor is there any logical reason why the amendment
should “stand or fall as a whole,” Kerby, 44 Ariz. at 221, 36
P.2d at 554. Proposition 108 thus clearly falls afoul of Article
21, Section 1, as the Court today concludes.
¶25 Once we have concluded that there is no logical
relationship between the two provisions in Proposition 108,
“[t]hat conclusion should end the analysis.” Arizona Together,
214 Ariz. at 128 ¶ 39, 149 P.3d at 752 (Hurwitz, J., concurring).
The four Arizona Together factors may sometimes confirm that
conclusion, but they should not drive it. 15 ¶26 Moreover, I am concerned that the Court’s focus on the
four factors potentially adds unnecessary uncertainty to our
separate amendment analysis. Arizona Together’s first prong,
“facial relatedness,” originated in Kerby, in which we noted that
the proposed amendment had “at least three distinct propositions
. . . no two of which are necessarily required for a proper
operation of the third. On their face they have no direct
relation to each other.” Kerby, 44 Ariz. at 221-222, 36 P.2d at
554. “Facial relatedness” thus seems to me to be not one of four
separate factors to be used in evaluating whether a proposition
involves a single amendment, but rather the ultimate question to
be decided. Put differently, “facial relatedness” is merely
another way of stating that the various provisions “constitute a
consistent and workable whole on the general topic.” See id. at
221, 36 P.2d at 554.
¶27 The Court today concludes that Proposition 108 fails
the second prong in Arizona Together, as it does not involve the
same portion of the Constitution in which the right to secrecy in
public elections is treated, Article 7. This, however, is
largely a matter of drafting and fortuity – Proposition 108 would
seem to me to violate the separate amendment rule every bit as
much if its proponents had suggested amending Article 7 instead
of Article 2.
16 ¶28 Similarly, the third Arizona Together inquiry – whether
the proposition’s various topics have been considered together
historically - is of less than compelling force. Our
Constitution and statutes have not dealt with how workers make
union representation decisions, presumably because that topic is,
as the Court notes in ¶ 14, the province of federal law.
Although the fact that topics have been treated together
historically provides some evidence of logical interrelatedness,
the converse is not necessarily true. When a proposed amendment
tries to analogize an existing constitutional right (in this
case, the right to secrecy in public elections) to a proposed new
right, the new right will almost never have been previously
considered together with the old one.
¶29 The last Arizona Together factor, whether the various
provisions are “qualitatively similar in their effect on the
law,” 214 Ariz. at 123 ¶ 16, 149 P.3d at 747, also strikes me as
being of questionable practical application in most cases, at
least in its original formulation. As the Court noted in Arizona
Together, id., the “qualitatively similar” factor came from
Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990). In
Slayton, the Court emphasized that the various provisions of a
proposed amendment relating to victims’ rights were similar
because they were all procedural in nature. See id. at 91-92,
800 P.2d at 594-95. Here, the provisions of Proposition 108 are 17 clearly both substantive and hence would easily pass through the
Slayton screen.
¶30 As it did in Arizona Together, 214 Ariz. at 123 ¶ 17,
149 P.3d at 747, the Court today interprets the “qualitatively
similar” factor in a somewhat broader fashion than in Slayton,
accurately concluding that although both provisions of
Proposition 108 are substantive in nature, see ¶¶ 15-16 supra,
they have very different – and unrelated - effects. But to me
this is simply another way of stating that these provisions
neither are logically related to each other nor constitute a
single constitutional amendment.
¶31 As noted above, I do not suggest that the factors set
forth in Arizona Together are not useful in an Article 21,
Section 1 analysis. But I worry about our recent focus on these
factors, some of which may be manipulated by shrewd drafters.
The four Arizona Together factors should not obscure – or
substitute for analysis of - the real question, which is whether
the various provisions of the proposed amendment, in addition to
concerning the same general topic, are also “all logically
related to each other” and form an integrated proposition
deserving a single up or down vote from the people. See Tilson
v. Mofford, 153 Ariz. 468, 472, 737 P.2d 1367, 1371 (1987).
18 II.
¶32 I add a final word. The separate amendment provision
in Article 21, Section 1 was “intended to prevent the pernicious
practice of ‘logrolling’ in the submission of a constitutional
amendment.” Kerby, 44 Ariz. at 214, 36 P.2d at 551. The danger
of logrolling is heightened when one provision of an amendment is
already in the Constitution. What is most troublesome about
Proposition 108 is that the Constitution has always protected
secrecy in voting in public elections. But as worded,
Proposition 108 suggests that a “no” vote, in addition to
rejecting the mandate for secret ballots in union representation
decisions, would also jeopardize the existing constitutional
guarantee of secrecy in public election voting. This strikes me
as precisely the sort of logrolling that Article 21, Section 7
was designed to avoid.
_____________________________________ Andrew D. Hurwitz, Vice Chief Justice