By Nicholas Bustamante
The relevance of the United States Constitution in protecting civil liberties cannot be understated. However, similarly worthy of recognition and praise are the role state constitutions provide in augmenting and safeguarding civil liberties. One such example of a state constitution enhancing civil protections is Arizona, where personal privacy protections are made explicit[1]. The Arizona Constitution originally drafted in 1910, was set out with the progressive intent dominated by the era’s political atmosphere. [2] Fundamental to the constitution’s liberal origins is the power vested in the people to enact or retract law via initiative and referenda. When asked about the state’s constitutional provisions regarding initiatives, recalls, and referendums, President Theodore Roosevelt defended the state’s sovereign right to develop its own “organic law” and extolled the stance taken by Arizona. Specifically, Roosevelt stated “[t]he people of Arizona have adopted a constitution which is intended to restore to the people of the state all of the powers of government and to put it out of the power of special interests”.[3] Characteristic of the power the citizen amendment process possesses is its capacity to limit specific actions of state government, or advance laws desired by a majority of the electorate. In short, the amendment process allows is added check in balancing of political power and an opportunity, “[t]o arrive at the best possible decisions in pursuit of the common good under a condition of popular sovereignty’’.[4]
The spirit of popular sovereignty codified in the Arizona Constitution and preserved in subsequent court opinions which view voters as having an equal legislative making power akin to state representatives.[5] The United States Supreme Court has recognized the unique status Arizona voters retain in sharing lawmaking authority “on equal footing with the Arizona Legislature.”[6] Recently, the constitutional right of Arizonans to propose new laws and amend their constitution via the initiative process has been challenged. Signed into law by Governor Doug Ducey on April 14, 2017, House Bill 2244 (“HB 2244”) requires a strict compliance standard be applied for citizen initiatives[7]. The higher standard allegedly providing the, “surest method for safeguarding the integrity of the initiative process.”[8] The issue, according to critics is that the law increases the difficulty of bringing initiatives to ballot and would result in citizens initiatives being tossed out for minor technical errors- such as failing to adhere to margin requirements, or failing including a date[9]. Accompanying the increased level of technical burden the law bears on citizens organizing ballot initiatives, is the heightened level of costs needed to satisfy the law’s requirements.[10] One estimate suggests the cost would be marked up by as much as 30%.[11] In a ruling from the Superior Court of Maricopa County, the plaintiffs’ projected future costs and increased technical burden HB 2244 would potentially place on future initiatives, were viewed as not “realistically threatening” due to lacking the repetition of a constitutional violation[12]. In short, because the law had not yet materially impacted any ongoing petition, the matter was not suitable for review[13]. When future petitioners are impacted by HB 2244 and the matter is appealed, Arizona courts will have to grapple with two issues: the first being, whether or not the standard of strict compliance abrogates the rights of established in Article 2 § 8 of the state constitution, and also whether the legislature in implementing an increased level of compliance violates the separation of powers in Article 3 of the Arizona Constitution.
The Arizona Supreme Court has previously held strict compliance applied to voter referenda.[14] In delineating the differences in how standards of compliance are applied between initiatives and referenda, the court focused on the relative power each reserved and held that substantial compliance applied to initiatives but not referenda. The rationale being the referenda was an “extreme” power that could allow a minority to “temporarily suspend the actions of representatives chosen by the majority.”[15] Alternatively, initiatives have been granted greater deference and protections because of they are creating law by a popular consensus of the electorate and not delaying the actions of the legislature. In line with this reasoning the Court stated stated that technical errors on a petition will not invalidate them under a substantial compliance analysis.[16] Moreover, in Kromko v. Superior Court, 168 Ariz. 51, 60 811 P.2d 12 (1991), the court stipulated that short of a petition’s descriptive information facilitating fraud or creating substantial unfairness, signature petitions would not be invalidated. Under HB 2244, petitions would run the risk of being thrown out for minor defects as the higher standard will require “near perfect” compliance with statutory requirements.[17]
HB 2244 takes power from the electorate and judiciary alike. In Arizona, the separation of power provides, “no one of such departments shall exercise the powers properly belonging to either of the others”[18]. HB 2244 potentially violates the equitable distribution of powers. Previously, the Arizona Supreme Court has held that the separation of powers are violated where “ [a] legislative enactment unreasonably limits the judiciary’s performance of its duties”[19]. The judicial branch in Arizona is tasked with interpreting the constitution[20]. By elevating the standard of compliance initiatives must adhere to, courts will be bound to apply a higher level of scrutiny when reviewing citizen petitions over the degree to which initiatives met the requisite guidelines. HB 2244 arguably encompasses authority traditionally reserved for the judiciary.The legislature has the power to create substantive law whereas the judicial branch has the power to create laws procedural in nature.[21] The Constitution grants the Arizona Supreme Court with “[p]ower to make rules relative to all procedural matters in any court.” Arizona courts define procedural law as pertaining to “the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective.”[22] The Arizona Supreme has previously declined to invalidate a statute that governed standards of proof in medical malpractice cases under the separation of powers doctrine[23], the impact of HB 2244 is fundamentally different as it directly impacts how citizens are able to exercise their expressed constitutional right to create law.
The progressive framework of the Arizona Constitution intended for the electorate to take part and have coordinate status in creating law. The legislature’s reaction to the electorate’s right to have law making authority at parity with representatives exposes a tension in democratic institutions predicated on conceptions of popular sovereignty. That tension being, a distrust in the distribution of power in decision making functions. The limitations imposed on future citizen initiatives likely contravene the original intent of the Arizona Constitution. The legislation further concentrates the power to create law in the halls of the legislature and undercuts concerns for potential legislative abuse initially expressed in the Arizona Constitution. .
[1] Ariz. Const. art. 2, § 8
[2] See Toni McClory, UNDERSTANDING THE ARIZONA CONSTITUTION (Univ. of Ariz. Press. 2001)
(Describing the relevance and distinct nature of the Arizona constitution).
[3] See 27 CONG. REC. S4229 (1911). See generally Jeff Biggers, STATE OUT OF THE UNION: ARIZONA AND THE FINAL SHOWDOWN FOR THE AMERICAN DREAM, 34-37 (New York, NY: Nation Books 2012)(providing a background of state and national reactions following the adoption of Arizona into statehood).
[4] See Donald S. Lutz, “Toward a Theory of Constitutional Amendment” (1994) 88:2 Am Pol Sci Rev 355 at 356, http://econweb.umd.edu/~wallis/398W/lutz_amendment_APSR_1994.pdf
[5] Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2655 (2015)
[6] Id.
[7] See H.B. 2244, 53 Leg. First. Reg. Sess. (Ariz. 2017), available at
https://www.azleg.gov/legtext/53leg/1r/bills/hb2244s.pdf (showing text of legislation).
[8] Id.
[9] Howard Fisher, Trial on citizen initiative restrictions gets underway, ARIZ. CAP. TIMES (July. 12, 2017), https://azcapitoltimes.com/news/2017/07/12/arizona-trial-on-citizen-initiative-restrictions-gets-underway/
[10] Id.
[11] Id.
[12] Howard Fischer, Ruling will allow ‘strict compliance’ law on new initiatives to take effect, TUCSON DAILY STAR, (Aug. 8, 2017), http://tucson.com/news/local/ruling-will-allow-strict-compliance-law-on-new-initiatives-to/article_6a8142e6-7c85-11e7-b88a-f3f4118d92e9.html
[13] Id.
[14] Perini Land & Development Company. v. Pima County., 170 Ariz. 380, 384 825 P.2d 1 (1992); See also Cottonwood Development. v. Foothills Area Coalition of Tucson, Inc.., 134 Ariz. 46, 653 P.2d 694 (1982)
[15] Id. at 697.
[16] Save Our Vote, Opposing C-03-2012 v. Bennett, 231 Ariz. 145, 291 P.3d 342 (2013)
[17] Committee for Preservation of Established Neighborhoods v. Riffel, 213 Ariz. 247, 141 P.3d 422 (Ct. App. 2006)
[18] Ariz. Const. art. 3.
[19] San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 211 (1999).
[20] Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 (2006).
[21] Ariz. Const. art. 6, § 5(5).
[22] State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964)
[23] Seisinger v. Siebel, 220 Ariz. 85, 203 P.3d 483 (2009)
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