Dobson v. State Ex Rel App Court Appointments , 233 Ariz. 119 ( 2013 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
_______________
CAREY D. DOBSON, WILLIAM EKSTROM, TED A. SCHMIDT AND
JOHN THOMAS TAYLOR III,
Petitioners,
v.
STATE OF ARIZONA, EX REL.,
COMMISSION ON APPELLATE COURT APPOINTMENTS,
Respondent.
No. CV-13-0225-SA
Filed September 13, 2013
Special Action
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL:
Paul F. Eckstein, Joel W. Nomkin, D. Andrew Gaona, Perkins Coie LLP,
Phoenix; Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally,
PLC, Tucson; Frank X. Gordon, Jr., Roush McCracken Guerrero & Miller,
Phoenix; Mark I. Harrison, Osborn Maledon PA, Phoenix; Charles E.
Jones, Phoenix; Ruth McGregor, Phoenix; James Moeller, Phoenix; and
Thomas A. Zlaket, Thomas A. Zlaket PLLC, Tucson, for Dobson, et al.
Thomas C. Horne, Arizona Attorney General, G. Michael Tryon, Assistant
Attorney General, Evan Hiller, Assistant Attorney General, Phoenix, for
State of Arizona
Timothy M. Hogan, Joy Herr-Cardillo, Phoenix, for Amicus Curiae
Arizona Center for Law in the Public Interest
Lawrence A. Kasten, Lewis and Roca LLP, Phoenix; and Matthew
Menendez, New York, for Amici Curiae Brennan Center for Justice at
N.Y.U. Law School and Justice at Stake
_______________
DOBSON V. STATE
Opinion of the Court
VICE CHIEF JUSTICE BALES authored the opinion of the Court, in which
JUSTICE PELANDER, JUSTICE BRUTINEL, JUSTICE TIMMER and
JUDGE NORRIS* joined.
_______________
VICE CHIEF JUSTICE BALES, opinion of the Court:
¶1 Arizona’s Constitution establishes the Commission on
Appellate Court Appointments and requires the Commission to submit
“not less than three” nominees to the governor for her appointment to fill
an appellate judicial vacancy. Ariz. Const. art. 6, §§ 36-37. Recently
enacted House Bill (H.B.) 2600 directs the Commission to submit “the
names of at least five persons” to the governor, unless an applicant is
rejected by a two-thirds vote of the Commission, in which case it may
submit fewer than five names. 2013 Ariz. Sess. Laws, ch. 23, § 1 (1st Reg.
Sess.). Because H.B. 2600 directly conflicts with Arizona’s Constitution,
we hold that the statute is unconstitutional.
I.
¶2 In 1974, Arizona voters approved Proposition 108, which
amended the Arizona Constitution and introduced merit selection into
Arizona’s judicial selection process. Ariz. Sec’y of State, 1974 Publicity
Pamphlet 29 (1974). Before the adoption of Proposition 108, all of
Arizona’s state judges were elected by popular vote. Proposition 108
created the Commission on Appellate Court Appointments, which now
consists of ten non-attorney and five attorney members – all appointed by
the governor and confirmed by the Senate – and is chaired by the chief
justice. Ariz. Const. art. 6, § 36(A). The Commission is charged with
evaluating applicants for appointment to Arizona appellate courts in “an
impartial and objective manner,” id. § 36(D), and is directed to “consider
the diversity of the state’s population” but its “primary consideration shall
be merit.” Id.
¶3 Based on its review, which includes public hearings, public
interviews, and public comment, the Commission must recommend “not
less than three” nominees to the governor. Ariz. Const. art. 6, §§ 36-37.
The Commission’s “[v]oting shall be in a public hearing.” Id. § 36(D). No
more than two nominees can be from the same political party, unless there
are more than four nominees, in which case no more than sixty percent
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DOBSON V. STATE
Opinion of the Court
can be from the same political party. Id. § 37(A). The governor is required
to appoint one of the nominees to fill the judicial vacancy. Id. § 37(C); cf.
id. § 41 (establishing a similar merit selection process for superior court
judges in counties “having a population of two hundred fifty thousand
persons or more”).
¶4 In April 2013, the legislature passed and the governor
approved H.B. 2600, which would alter Arizona’s judicial nomination
process by requiring the Commission to submit at least five nominees to
the governor, unless the Commission rejects an applicant by a two-thirds
vote, in which case the Commission may submit fewer than five
nominees. A similar ballot proposition was rejected by the voters in 2012.
That proposition would have amended the constitution to require the
Commission to submit eight candidates to the governor for each judicial
vacancy, unless two-thirds of the Commission voted to reject a candidate
and to submit fewer than eight names. Ariz. Sec’y of State, 2012 Publicity
Pamphlet 21-22 (2012), available at
http://www.azsos.gov/election/2012/Info/PubPamphlet/english/e-
book.pdf.
¶5 Four members of the Commission on Appellate Court
Appointments filed this special action asking the Court to declare H.B.
2600 unconstitutional and to enjoin the Commission from applying the
statute. They bring the action as individual commissioners and not on
behalf of the Commission as a whole. The Commission is a nominal
defendant and takes no position in this litigation.
II.
¶6 This Court has original jurisdiction over “mandamus,
injunction and other extraordinary writs to state officers.” Ariz. Const.
art. 6, § 5(1). Such jurisdiction is discretionary and granted through a
special action petition. Randolph v. Groscost, 195 Ariz. 423, 425 ¶ 6, 989
P.2d 751, 753 (1999).
¶7 The State concedes that this Court could grant mandamus
relief by directing the Commission to comply with a ruling on the merits,
but it argues the case should be refiled in superior court for the
development of a factual record. Resolving this case, however, does not
involve disputed facts. Special action jurisdiction is appropriate here
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DOBSON V. STATE
Opinion of the Court
because the petition presents purely legal questions of statewide
importance that turn on interpreting Arizona’s Constitution. See id.(accepting jurisdiction when the “dispute involves a matter of substantial
public importance, raises only issues of law, and requires the
interpretation of a provision of the Arizona Constitution”).
¶8 Additionally, special action jurisdiction is appropriate
because the case requires an immediate and final resolution. See Ingram v.
Shumway, 164 Ariz. 514, 516, 794 P.2d 147, 149 (1990) (accepting special
action jurisdiction when the case required “final resolution in a prompt
manner”). Petitioners have no power to resolve the constitutionality of
H.B. 2600 on their own, and beginning September 13, 2013, they will be
subject to its directives. Accordingly, we accept jurisdiction.
III.
¶9 The State argues that even if we accept jurisdiction,
Petitioners have no standing to sue. We disagree. Under Arizona’s
Constitution, standing is not jurisdictional, but instead is a prudential
doctrine requiring “a litigant seeking relief in the Arizona courts [to] first
establish standing to sue.” Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 19, 81
P.3d 311, 316 (2003). By contrast, in federal court, standing requirements
are rooted in Article III of the United States Constitution, which limits
jurisdiction to “cases or controversies.” Id. at 524-25 ¶¶ 17-18, 81 P.3d at
315-16. Arizona’s Constitution has no counterpart “case or controversy”
requirement. It follows that this Court is informed, but not bound, by
federal standing jurisprudence. See id. at 525 ¶ 22, 81 P.3d at 316. Our
decision to recognize standing turns on “questions of prudential or
judicial restraint.” Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs.
in Ariz., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985).
¶10 The State asserts that Petitioners have no standing because
they are attempting to bring organizational claims without authorization
from their “organization,” something we barred individual legislators
from doing in Bennett. 206 Ariz. at 527 ¶ 29, 81 P.3d at 318. In that case,
we held that four state legislators lacked standing to bring a special action
challenging the governor’s exercise of line-item vetoes because the
legislators had not alleged a particularized injury and had not been
authorized to act on behalf of their respective chambers. Id. Although the
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DOBSON V. STATE
Opinion of the Court
legislators supported the items vetoed by the governor, we held that the
injury was “wholly abstract and widely dispersed” and not sufficiently
particularized to give rise to individual standing. Id. at 526-27 ¶ 28, 81
P.3d at 317-18 (quoting Raines v. Byrd, 521 U.S. 811, 829 (1997)).
¶11 Bennett is distinguishable. Here, Petitioners have identified
a particularized injury and do not purport to bring claims on behalf of the
Commission as a whole. H.B. 2600 requires Petitioners, as individuals, to
execute directives they believe run afoul of their constitutional obligations
as Commission members. See A.R.S. § 38-231 (A), (E) (requiring “all
officers . . . of all . . . commissions” to “solemnly swear (or affirm)” an oath
that he or she “will support the Constitution of the United States and the
Constitution and laws of the State of Arizona . . . .”); see also A.R.S. § 38-
101(3) (defining “public officer” to include a “member of any board or
commission”). Without standing to raise the constitutional question in
court, Petitioners would have no means of redress. That standing exists
under these circumstances is implicitly recognized by Arizona’s
declaratory judgment statute, which provides that a person whose “rights,
status or other legal relations” are affected by a statute may seek
declaratory relief regarding the statute’s validity. A.R.S. § 12-1832; cf.
Merrill v. Phelps, 52 Ariz. 526, 529, 84 P.2d 74, 76 (1938) (noting that action
under the declaratory judgment statute was “simplest and the best way”
of resolving conflicting claims regarding statutory and constitutional
authority of public officials).
¶12 Petitioners also allege individual injury based on H.B. 2600’s
requirement of a supermajority vote to send fewer than five nominees to
the governor. Before H.B. 2600, commissioners by a mere majority vote
could block a fourth and fifth nominee from being submitted to the
governor. H.B. 2600 renders a commissioner’s opposition to a candidate
ineffective unless the commissioner can secure the support of a two-thirds
majority. This material change further supports a finding that Petitioners
have standing. Unlike the situation in Bennett, H.B. 2600 does not concern
the impact of another branch of government on the collective action of the
Commission, but instead directly alters how the votes of individual
commissioners will determine the Commission’s action. Cf. Bennett, 206
Ariz. at 526 ¶ 26, 81 P.3d at 317 (noting that “no legislator’s vote was
nullified by interference in the legislature” and instead bills were duly
enacted and transmitted to the governor). Accordingly, we conclude that
Petitioners have alleged particularized injuries sufficient to establish
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DOBSON V. STATE
Opinion of the Court
standing.
IV.
¶13 On its face, H.B. 2600 conflicts with our state constitution.
Arizona’s Constitution provides that the Commission will nominate no
fewer than three persons for each judicial vacancy, unless a majority of the
Commission votes to nominate additional persons. Ariz. Const. art. 6,
§§ 36(D), 37(A). H.B. 2600, in contrast, directs the Commission to submit
at least five nominees, unless the Commission rejects an applicant by a
two-thirds vote. H.B. 2600, § 1. This requirement fundamentally changes
the selection process set forth in the constitution.
¶14 Nevertheless, the State argues that H.B. 2600 represents a
mere procedural change to the nomination process. To support its
position, the State cites Direct Sellers Ass’n v. McBrayer, in which the Court
upheld a statute requiring circulators of referendum petitions to be
qualified electors. 109 Ariz. 3, 5, 503 P.2d 951, 953 (1971). The Arizona
Constitution declares that its referendum provisions “shall be, in all
respects, self-executing,” Ariz. Const. art. 4, pt. 1, § 1(16), but it does not
address the qualifications of petition circulators. In this context, McBrayer
held that legislation is permissible if it “reasonably supplements the
constitutional purpose” and “does not unreasonably hinder or restrict the
constitutional provision . . . .” 109 Ariz. at 5, 503 P.2d at 953. McBrayer did
not concern legislation that directly conflicted with any constitutional
provision. Id.
¶15 Because H.B. 2600 conflicts with Article 6, Sections 36 and
37, the court of appeals’ analysis in Turley v. Bolin is more instructive. 27
Ariz. App. 345, 554 P.2d 1288 (1976); see also State v. Roscoe, 185 Ariz. 68,
72, 912 P.2d 1297, 1301 (1996) (distinguishing McBrayer and adopting the
Turley analysis when a legislative act infringes on a voter-enacted
constitutional provision). Turley involved a statute requiring initiative
petitions to be filed with the Secretary of State’s office not less than five
months before an election. 27 Ariz. App. at 347, 554 P.2d at 1290. The
Arizona Constitution, however, provides that such petitions shall be filed
“not less than four months” before an election. Id. (quoting Ariz. Const.
art. 4, pt. 1, § 1(4)). The court struck down the statute as unconstitutional,
holding that it “unreasonably hinder[ed] or restrict[ed] the constitutional
provision.” Id. at 348, 554 P.2d at 1291 (quoting McBrayer, 109 Ariz. at 5,
503 P.2d at 953). It reasoned that any attempt by the legislature to alter the
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DOBSON V. STATE
Opinion of the Court
minimum filing time must fail because “th[e] constitutional filing
limitation must be considered in the context of the important legislative
rights reserved in the people – rights which are not to be considered as
being subordinate to any legislative rights vested in the legislature.” Id. at
350, 554 P.2d at 1293.
¶16 Under Turley’s analysis, H.B. 2600 cannot be said to
“reasonably supplement” Arizona’s Constitution. Instead, H.B. 2600
materially changes the process of submitting judicial nominees to the
governor as established in Article 6, Section 37. It works a fundamental
change in the constitutionally prescribed balance of power between the
Commission and the governor. By increasing the number of nominees the
Commission must submit, H.B. 2600 simultaneously increases the
governor’s discretion and narrows the commissioners’ constitutionally
granted discretion to nominate no more than the three candidates whom
they determine best meet the constitutionally mandated selection criteria.
See supra ¶ 2. Further, H.B. 2600 imposes a two-thirds voting requirement
in a context not authorized by the constitution. Cf. Ariz. Const. art. 6, §
36(D) (requiring a two-thirds vote for the Commission to hold an
executive session). Even if the change were “merely procedural,” the
legislature has no authority to statutorily mandate procedures
inconsistent with Arizona’s Constitution. Turley, 27 Ariz. App. at 350, 554
P.2d at 1293; cf. Ariz. Const. art. 6, § 36(E) (authorizing the Supreme Court
to adopt rules of procedure for the Commission); Unif. R.P. Comm’ns on
App. and Trial Ct. Appointments 5(f) (recognizing that commissions may
act by majority vote on any matter other than decision to meet in
executive session).
¶17 When a state statute conflicts with Arizona’s Constitution,
the constitution must prevail. See Windes v. Frohmiller, 38 Ariz. 557, 561, 3
P.2d 275, 277 (1931) (stating “[t]his court will not violate the people’s trust
by attempting to subvert their constitution to any legislative enactment”).
If we determine that part of a statute is unconstitutional, we generally
consider whether other valid parts can be upheld under the severability
doctrine. See Randolph, 195 Ariz. at 427 ¶ 14, 989 P.2d at 755. Section 1 of
H.B. 2600 is to be codified as A.R.S. § 12-3151(A) – (C). Although section 2
of H.B. 2600 is a severability clause, the State has not argued that the
statute can be upheld in part. We conclude that the provisions of section 1
of H.B. 2600 are not severable. Newly enacted § 12-3151(A) concerns the
appellate court nominating commission as just discussed, but our analysis
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DOBSON V. STATE
Opinion of the Court
establishes that § 12-3151(B), which concerns the trial court nominating
commissions, similarly violates the constitution and therefore cannot be
upheld. See Ariz. Const. art. 6, § 41(J). Section 12-3151(C), which requires
the commissions to maintain individual voting records for each
commissioner, also is not severable because it conflicts with the
constitution’s provisions regarding the commissions’ rules of procedure.
See Ariz. Const. art. 6, §§ 36(E), 41(K).
V.
¶18 Petitioners have requested an award of attorney’s fees
under the private attorney general doctrine. See Arnold v. Ariz. Dep’t of
Health Servs., 160 Ariz. 593, 609, 775 P.2d 521, 537 (1989). That doctrine “is
an equitable rule which permits courts in their discretion to award
attorney’s fees to a party who has vindicated a right that: 1) benefits a
large number of people; 2) requires private enforcement; and 3) is of
societal importance.” Id. The State has not disputed that a fee award
would be appropriate if Petitioners prevail.
¶19 Petitioners have succeeded in showing that the legislature’s
attempted changes to the judicial nomination process violate Arizona’s
Constitution. A reasonable fee award is appropriate. We note, however,
that Petitioners withdrew one of their two arguments challenging H.B.
2600 after the State filed its response, and we limit the award to time spent
by those attorneys who were principally and substantially involved in
briefing Petitioners’ successful arguments.
VI.
¶20 We hold that H.B. 2600 is unconstitutional because it directly
conflicts with Arizona’s Constitution. We enjoin the Commission from
applying the statute and award reasonable attorney’s fees to Petitioners
upon compliance with Arizona Rule of Civil Appellate Procedure 21.
* Chief Justice Berch recused herself from this case. Pursuant to Article 6,
Section 3 of the Arizona Constitution, the Honorable Patricia K. Norris,
Judge of the Arizona Court of Appeals, Division One, was designated to
sit in this matter.
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