Occupy Public Land 3054 N. Edith Blvd. Tucson, Ariz. 85716 John Thomas Cooper, Jr. Executive Organizer Secretarial Working Group E-Mail: southwestrecords@gmail Phone: (520) 272-9070 December 27, 2014 To Occupy Tucson and 15 Now Tucson Re: Discussion of Viability of Legal Challenge to City Ballot Initiative to Raise Minimum Wage in City of Tucson Dear Ethan Beasley: After a preliminary investigation of the law governing initiative petitions in the State of Arizona, I conclude that 15 NOW can proceed with a local campaign to raise the minimum wage in the City of Tucson. The Preemption statute, A.R.S. § 23-362(B), cannot be applied to stop or interfere with initiative petitions or the initiative process. The issue of preemption will not be evaluated by the courts unless and until the initiative is signed into law. I. Separation of powers Arizonas constitution ensures the proper distribution of power among our three separate and distinct branches of government. Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 586, 886 P.2d 1338, 1342 (1994). The Distribution of Powers clause of Article III reads: The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial... and no one of such departments shall exercise the powers properly belonging to either of the others. [The Arizona Supreme] court has carefully observed these dividing lines, particularly in cases where we are asked to prohibit or require legislative action. Fairness & Accountability, 180 Ariz. at 586, 886 P.2d at 1342. The Court has long held that Article III requires the judiciary to refrain from meddling in the workings of the legislative process. See Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617 (1952); City of Phoenix v. Superior Court, 65 Ariz. 139, 175 P.2d 811 (1946). Part of this legislative process is the peoples power to create legislation through initiative. Ariz. Const. art. IV, pt. 1, § 1(8); Allen v. State, 14 Ariz. 458, 467, 130 P. 1114, 1118 (1913) ([t]he people did not commit to the legislature the whole law-making power of the state, but they especially reserved in themselves the power to initiate and defeat legislation by their votes.). Only two years after statehood, the court held that determining an initiatives validity before the voters had an opportunity to vote on it would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures. State v. Osborn, 16 Ariz. 247, 249-50, 143 P. 117, 118 (1914) (emphasis added). The separation of powers doctrine dictates deference to legislative functions. The legislative power of the people is as great as that of the legislature. Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987) (citing Ariz. Const. art XXII, § 14). Voter initiatives, part and parcel of the legislative process, receive the same judicial deference as proposals before the state legislature—Arizona courts are powerless to determine their substantive validity unless and until they are adopted. As a true reflection of democratic principles, Arizona citizens are not precluded from legislating on any issue, even though the legislation might conflict with the Arizona Constitution or state law. Iman v. Bolin, 98 Ariz. 358, 364-65, 404 P.2d 705, 709 (1965). The constitutionality of such a measure will only be tested after it becomes law. Id. Thus, so long as it is uncertain whether an initiative will become law, the courts will not intervene in a wholly legislative process. II. JUDICIAL REVIEW Opponents’ most likely attack would be to derail an initiative proposal prior to public vote. Because the election had not yet occurred, ripeness would be at issue. Cf. Tilson, 153 Ariz. at 470, 737 P.2d at 1369 (unless measure is procedurally defective on its face, courts will not pass on its validity before electorate votes on it). The ripeness doctrine prevents a court from rendering a premature judgment or opinion on a situation that may never occur. Arizona Downs v. Turf Paradise, Inc., 140 Ariz. 438, 444, 682 P.2d 443, 449 (App.1984). For this reason, courts do not address matters of substantive interpretation of initiative proposals prior to election. Preelection review of the substantive validity of an initiative may arguably be more efficient, but the Arizona Supreme Court has considered and rejected this possibility. In Williams v. Parrack, the court held that, [w]hile it may entail considerable expense to submit the ordinance to a vote of the people, this court has not the authority to pass upon the validity or invalidity of said ordinance before its enactment into law. 83 Ariz. 227, 231, 319 P.2d 989, 991 (1957). Prior to passage, the court will consider only procedural defects in form that bear directly on the integrity of the election process. The statute governing initiatives requires only that a petition be legally sufficient to receive constitutional protection and be placed on the ballot. See A.R.S. § 19-122(C). This requirement was first construed in Osborn, in which the court held that an initiative was legally sufficient so long as it was not fraudulent and complied with the form and signature requirements. 16 Ariz. at 250, 143 P. at 118. Under Osborn, the text of an initiative need not be substantively valid for it to be cloaked with constitutional protection. Id. As the court stated in Williams, [i]t is only in cases where the initiative petition is defective in form ... where the procedure prescribed has not been followed that the court has authority to intervene and enjoin its enactment. 83 Ariz. at 231, 319 P.2d at 991 (emphasis added). While state courts routinely serve as gatekeepers on issues of compliance with threshold ballot access requirements related to process and content; many state courts decline to extend the gatekeeping function to include resolution of what are often termed substantive challenges to the lawfulness of proposals prior to the election. See, e.g., Winkle v. City of Tucson, 190 Ariz. 413, 949 P.2d 502, 504 (1997); City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974, 976 (1956); Coppernoll v. Reed, 155 Wash.2d 290, 119 P.3d 318, 321-22 (2005); State of Wisconsin ex rel. Althouse v. City of Madison, 79 Wis.2d 97, 255 N.W.2d 449, 455 (1977). The rationale of these state courts is that because measures are often used to send a message to elected representatives, preelection review even of measures that are subsequently found invalid by a court may unduly infringe on free speech values. Gordon & Magleby, 64 Notre Dame L. Rev. at 312; M. Sean Radcliffe, Pre-election Judicial Review of Initiative Petitions: An Unreasonable Limitation on Political Speech, 30 Tulsa L.J. 425, 436-37 (1994). Although a number of courts in other jurisdictions have held that the potential expenditure of funds by a municipality in connection with a voter petition is sufficient to allow a city standing to litigate the underlying legality of proposed or existing ordinances or charter provisions, City of Irvine v. Irvine Citizens Against Overdevelopment, 25 Cal. App.4th 868, 30 Cal.Rptr.2d 797, 799-800 (1994); Branca v. City of Miramar, 634 So.2d 604, 605-06 (Fla.1994); Kaulakis v. Boyd, 138 So.2d 505, 506-07 (Fla.1962); Housing & Redevelopment Auth. v. City of Minneapolis, 293 Minn. 227, 198 N.W.2d 531, 535 (1972); City of Sequim v. Malkasian, 119 Wash. App. 654, 79 P.3d 24, 26-27 (2003). But see City of Mishawaka v. Mohney, 156 Ind. App. 668, 297 N.E.2d 858, 859-60 (1973); Slama v. Attorney General, 384 Mass. 620, 428 N.E.2d 134, 137 (1981), most courts have repeatedly and routinely limited review by opponents of citizen petitions that trigger election processes based upon the plain language of the applicable law. See, e.g., Farley v. Healey, 67 Cal.2d 325, 62 Cal. Rptr. 26, 431 P.2d 650, 652 (1967) (city officials must place on ballot initiative in compliance with formal requirements unless otherwise directed by a court); Gaines v. City of Orlando, 450 So.2d 1174, 1177 (Fla. Ct. App. 1984) (governing body must place initiative on ballot notwithstanding advice from city attorney as to their substantive validity); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E.2d 644, 652 (1954) (city council cannot reject petition meeting all applicable provisions of city charter and statutes); Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648 (1951) (city council cannot fail to perform ministerial duties based upon opinion of legal invalidity provided by city attorney); Arenas v. Bd. of Commrs of the City of McAllen, 841 S.W.2d 957, 959 (Tex.Ct.App.1992) (city officials must call an election, despite the advice of the city attorney that initiative was legally insufficient, where all procedural requirements were met and election is the only remaining option). My conclusion in this case that opponents cannot request courts to engage in substantive review beyond that expressly authorized by applicable statutes is thus well within the mainstream of municipal law. III. PROCEDURAL DEFECTS IN FORM The Arizona Supreme Court has recognized only two kinds of procedural defects in initiative petitions. The first is a failure to structurally comply with A.R.S. §§ 19-101 to 19-144. For example, the petition could lack the requisite number of signatures or fail to comply with publication requirements. See Fairness & Accountability, 180 Ariz. at 587-88, 886 P.2d at 1343-44 (discussing the necessity of compliance with publication requirements); Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936) (enjoining election for failure to follow statutorily required publishing procedure that created procedural defect). The second arises when text of the initiative does not comprise legislation because it fails to enact anything. Saggio v. Connelly, 147 Ariz. 240, 241, 709 P.2d 874, 875 (1985). For an initiative to form legislation, its text must propose a definite, specific act or resolution that is more than an expression of general principles. Id. Because 15 Now has not drafted any proposed legislation, the existence of procedural defects cannot be evaluated, nor can the form of the initiative. See Ariz. Const. art. XII, § 1; A.R.S. §§ 19-101 to 19-144. Additionally, whether the proposal constitutes legislation cannot be deterimined. Id. IV. STATE LAW PREEMPTION OF A PROPOSED INITIATIVE Preemption requires a two-step analysis: 1) whether the subject matter is one of statewide concern, and 2) whether the state legislation has appropriated the field. See State v. Mercurio, 153 Ariz. 336, 340, 736 P.2d 819, 823 (App.1987). The first step essentially examines the substance of the initiative to determine whether it is a matter of statewide concern. However, the substantive text of an initiative is part of the legislative process and not subject to review before its adoption. See Fairness & Accountability, 180 Ariz. at 587, 886 P.2d at 1343. To be preempted, a municipal ordinance must actually conflict with governing state law. See City of Prescott v. Town of Chino Valley, 163 Ariz. 608, 616, 790 P.2d 263, 271 (App.1989), vacated in part on other grounds, 166 Ariz. 480, 803 P.2d 891 (1990); Mercurio, 153 Ariz. at 340, 736 P.2d at 823. To make such a determination, the court must examine the validity and substance of the governing state statute, A.R.S. § 23-362, to determine if the subject matter is of local or statewide concern. See Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 559, 578 P.2d 985, 988 (1978); Clayton v. State, 38 Ariz. 135, 297 P. 1037 (1931) (court must determine whether subject of legislation is of state or local interest; if it is of local interest, state and city may legislate on same subject). Thus, courts would examine whether A.R.S. § 23-362 can, by its pronouncement, completely occupy the minimum wage field. Again, however, courts cannot undertake review of any substantive legislation before an actual conflict exists. Before enactment, future actual conflict is only a possibility. Until an actual conflict ripens, Arizona courts will refrain from interfering. Opponents may cite to two zoning cases from the Arizona Supreme Court to support preelection review of an initiative. See City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968); Transamerica Title Ins. Co. v. City of Tucson, 157 Ariz. 346, 757 P.2d 1055 (1988). In both cases, the court removed the proposed initiatives from the ballot before election. However, these cases represent a historical anomaly specific to zoning and designed to protect the due process rights of private property owners. Because these cases might be read to support preelection review of other types of initiatives, I believe some clarification is in order. The State Zoning Enabling Act expressly delegates zoning powers to other levels of government, including the governing body of an incorporated city. A.R.S. §§ 9-461 to 9-463.06, 11-801 to 11-874. Zoning ordinances cannot be passed by initiative without circumventing the constitutionally required notice and hearing. See City of Scottsdale, 103 Ariz. at 208, 439 P.2d at 294; Transamerica Title Ins., 157 Ariz. at 349, 757 P.2d at 1058. To protect property owners constitutional rights within the comprehensive legislative scheme governing zoning, the court has held that initiatives cannot be used to legislate zoning. Thus, Arizona courts do not review the substantive validity of any proposed zoning ordinance but only prohibit altogether the use of initiative to enact zoning laws. Additionally, Opponents may cite to Robertson v. Graziano, 189 Ariz. 350, 942 P.2d 1182 (App. 1997), to support preelection judicial review. In Robertson, the court of appeals held that a proposed budgetary initiative could not be enjoined from the ballot. Robertson cited Saggio as authority supporting the principle that a petition may be defective in form if it attempts to legislate on a matter not subject to the peoples legislative power. Id. at 352, 942 P.2d at 1184. As previously noted, however, in Saggio the Arizona Supreme Court examined the initiatives text only to determine whether it comprised legislation. Saggio, 147 Ariz. at 241, 709 P.2d at 875. The Court did not examine the measures substantive validity or try to determine whether its text was constitutional or preempted by existing state law. Saggio, 147 Ariz. 240, 709 P.2d 874. The limited examination follows long standing precedent that both the legislature and the electorate may enact laws, which may be challenged and held invalid only after voter approval. See Iman, 98 Ariz. at 364-65, 404 P.2d at 709; Osborn, 16 Ariz. at 249, 143 P. at 118. Arizona courts examine an initiative to determine whether it belongs on the ballot (whether it is proposed legislation), not whether, if adopted, it will be valid or constitutional. Thus, neither Saggio nor Robertson permits a preemption analysis to determine whether the law will be valid if it passes. Saggio permits only procedural scrutiny of an initiatives text to determine whether it is entitled to protection as legislation. When a proposed initiative comprises legislation, it is improper to subject it to substantive analysis before enactment. V. POLICY CONCERNS Finally, policy considerations support judicial restraint. As a jurisprudential matter, the courts have a strong interest in promoting judicial economy. Review of a proposal that may or may not become law amounts to no more than an advisory opinion. Once committed to this practice, the judiciary would be inundated with unnecessary preelection challenges. Second, courts should not create an impediment to the exercise of one of our State Governments bedrock institutions. Grassroots democracy, exercised by initiative, is not always an efficient process; however, there are clear benefits to allowing the public to vote on an initiative, even though its validity may be questioned if it passes. In a democracy, the process itself is often as valuable as the result. A vote to enact legislation expresses more than a current whim of the people; it expresses the voters preferred rule of governance. Ultimately, preemption may prevent enforcement of a law, but it cannot forbid the voters from voicing their views of a legislative proposal via the initiative process. If this process is deemed a waste of taxpayers time or money, then the laws governing initiatives may be altered by legislative process, not by judicial decision. VI. CONCLUSION Challenges to any minimum wage initiative based on its substance must wait until enactment in the State of Arizona. If and when an initiative passes, a court may then determine whether its contents are preempted by A.R.S. § 23-362(B), or rendered invalid by any state law or constitutional clause then existing. There can only be justice for one, when it is there for all. I await your timely response. Cordially, John Cooper, Jr. Occupy Public Land/Occupy Arizona Family Court Executive Organizer Secretarial Working Group
Posted on: Sun, 28 Dec 2014 11:06:36 +0000
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