Steve May v. Hon. Colleen mcnally/betsey Bayless ( 2002 )

SUPREME COURT OF ARIZONA
En Banc
STEVE MAY, ) Arizona Supreme Court
) No. CV-02-0215-PR
Petitioner,)
)
v. ) Court of Appeals
) Division One
HON. COLLEEN A. McNALLY, Judge ) No. 1 CA-SA 02-0073
of the SUPERIOR COURT OF THE )
STATE OF ARIZONA, in and for the )
County of Maricopa, ) Maricopa County
) Superior Court
Respondent Judge,) No. CV 2001-006078
)
BETSEY BAYLESS, as Secretary of )
the State of Arizona, acting in )
her official capacity; CAROL ) O P I N I O N
SPRINGER, as Treasurer of the )
State of Arizona, acting in her )
official capacity; and the )
CITIZENS CLEAN ELECTIONS )
COMMISSION; and ARIZONANS FOR )
CLEAN ELECTIONS, )
)
Real Parties in Interest.)
)
Special Action from the Superior Court of Maricopa County
The Honorable Colleen A. McNally, Judge
JUDGMENT AFFIRMED
Court of Appeals, Division One
203 Ariz. 13, 49 P.3d 285 (App. 2002)
OPINION VACATED
INSTITUTE FOR JUSTICE ARIZONA CHAPTER Phoenix
by Clint Bolick
and Timothy D. Keller
Thomas P. Liddy
Attorneys for Petitioner
THOMAS P. PROSE, Acting Arizona Attorney Phoenix
General in this case and Chief
Assistant Attorney General
by Kathleen P. Sweeney, Assistant Attorney General
and Todd F. Lang, Assistant Attorney General
Attorneys for Real Party in Interest
Citizens Clean Elections Commission
ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
by Timothy M. Hogan
and
THE BRENNAN CENTER FOR JUSTICE AT New York, NY
NEW YORK UNIVERSITY SCHOOL OF LAW
by Elizabeth Daniel
Attorneys for Real Party in Interest
Arizonans for Clean Elections
PACIFIC LEGAL FOUNDATION Sacramento, CA
by Deborah J. La Fetra
Attorneys for Amicus Curiae Pacific Legal Foundation
B E R C H, Justice
¶1 In the 1998 general election, Arizona voters approved the
Citizens Clean Elections Act to “encourage citizen participation in
the political process, and . . . promote freedom of speech under
the U.S. and Arizona Constitutions,” and to “create a clean
elections system that will improve the integrity of Arizona state
government by diminishing the influence of special-interest money.”
Ariz. Rev. Stat. (“A.R.S.”) § 16-940(A) (Supp. 2001). The Act
provides public financing for the campaigns of qualifying
candidates for certain elected offices. See id. §§ 16-940 to -961
(Supp. 2001). This case presents a challenge to the Act’s key
funding provision.
¶2 The Act created the Citizens Clean Election Commission
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(“CCEC”), which oversees the disbursement of funds to qualifying
candidates. To fund the campaigns of “clean elections” candidates,
the CCEC collects funds from four sources: voluntary contributions
to the fund, funds earmarked through a “check-off” provision on
state income tax returns, a fee on certain registered lobbyists,
and a ten percent surcharge on civil and criminal fines. Id. §§
16-944, 16-954(A)-(C). We are asked to determine whether the ten
percent surcharge on criminal and civil fines required by A.R.S. §
16-954(C) violates the First Amendment by impermissibly compelling
those who pay the fines to support the speech of political
candidates whom they might not otherwise support. We hold that it
does not.
BACKGROUND
¶3 Petitioner Steve May, then an Arizona state legislator,
received a parking ticket and was fined $27, on which a ten percent
surcharge authorized by the Act was assessed. May refused to pay
the $2.70 surcharge, claiming that doing so would violate his First
Amendment right to free speech because the money might be used to
fund the campaigns of candidates whose views he opposed. He also
challenged the fee on registered lobbyists.
¶4 May filed a federal court action, which was dismissed on
the ground that the Tax Injunction Act, 28 U.S.C. § 1341, deprived
the court of subject matter jurisdiction. See Lavis v. Bayless,
No. CIV 99-1627 (D. Ariz. Mar. 13, 2001). He then filed his action
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in Maricopa County Superior Court, urging the state courts to find
the Act unconstitutional. The Citizens Clean Elections Commission
and Arizonans for Clean Elections, the group that sponsored the
initiative, intervened in support of the Act’s constitutionality.
The trial court upheld the constitutionality of the surcharge on
civil and criminal fines, but invalidated the fee assessed against
certain registered lobbyists. May v. Bayless, No. CV 2001-006078
(Mar. Cnty. Super. Ct. Apr. 2, 2002). The latter ruling was not
appealed.
¶5 The court of appeals reversed, finding the surcharge an
unconstitutional restraint on free speech and enjoining the State
from imposing it. May v. McNally, 203 Ariz. 13, 49 P.3d 285 (App.
2002).
¶6 We stayed the court of appeals opinion and granted review
to determine whether the surcharge provision of the Clean Elections
Act impermissibly compels political speech of the surcharge payers,
in violation of the First Amendment’s guarantee of freedom of
speech.
DISCUSSION
¶7 Our analysis is framed by the United States Supreme
Court’s opinion in Buckley v. Valeo, 424 U.S. 1, 92-93 (1976),
which recognized that government may properly use public funds to
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establish a system of campaign financing.1 In Buckley, the Court
considered, among other issues, the constitutionality of the
Presidential Election Campaign Fund, a provision of the Federal
Election Campaign Act of 1971 that allowed taxpayers a one dollar
check-off on income tax returns that resulted in a dollar-for-
dollar allocation out of the general fund to qualifying
presidential candidates. Id. at 86-87.
¶8 Those opposing the Presidential Campaign Fund argued that
they should be allowed to designate the candidate to whom their
dollar contribution would go. But the Court disagreed, noting that
the campaign fund “is like any other appropriation from the general
revenue except that its amount is determined [by the number of
check-offs].” Id. at 91. The fact that the contributions stemmed
from a voluntary check-off “does not constitute the appropriation
any less an appropriation by Congress.” Id. Rather, the “check-
off is simply the means by which Congress determines the amount of
its appropriation.” Id. at 91 n.124. The Court was not moved by
the taxpayers’ objection to the potential use of the funds for
candidates the taxpayers opposed. It noted that every
congressional appropriation “uses public money in a manner to which
some taxpayers object.” Id. at 92.
1
Accord Little v. Florida Dep’t of State, 19 F.3d 4, 5
(11th Cir. 1994) (holding that financing campaigns with public
funds does not violate First Amendment); Libertarian Party v.
Packard, 741 F.2d 981, 989-90 (7th Cir. 1984) (same).
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¶9 The Court determined that the check-off provision of the
Presidential Campaign Fund did not implicate the First Amendment
because the provision was designed to use public money “not to
abridge, restrict, or censor speech, but rather . . . to facilitate
and enlarge public discussion and participation in the electoral
process, goals vital to a self-governing people.” Id. at 92-93.
Accordingly, the Court concluded, public funding of presidential
campaigns “furthers, not abridges, pertinent First Amendment
values.” Id. at 93.
¶10 Buckley thus affirms the proposition that the public
financing of political candidates, in and of itself, does not
violate the First Amendment, even though the funding may be used to
further speech to which the contributor objects.2
¶11 May nonetheless maintains that, despite Buckley’s general
approval of public financing of political campaigns, three cases
decided by the Court after Buckley compel a different result in the
case before us. Those cases – Abood, Keller, and United Foods –
hold that discrete groups of individuals cannot be compelled to
fund speech that they find objectionable unless that speech is
germane to the group’s purpose. May urges that the Abood line of
2
Indeed, Buckley suggests that Congress could have funded
the Federal Election Campaign Act out of the general revenue
regardless of whether the funding system included the voluntary
check-off provision, see 424 U.S. at 91-92, and May concedes that
if the money had gone into the general fund and could not be traced
to any individual, there would be no constitutional problem.
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cases should guide our inquiry.
¶12 In Abood v. Detroit Board of Education, 431 U.S. 209
(1977), non-union schoolteachers were required to pay a service
charge to the teachers’ union. The union used the money for
several purposes, including funding political and ideological
activities that some non-union teachers found objectionable. Id.
at 212-13. The Court held that unions could spend union dues to
support political candidates and causes, but could use only “such
expenditures . . . from charges, dues, or assessments paid by
employees who do not object to advancing those ideas and who are
not coerced into doing so against their will by the threat of loss
of governmental employment.” Id. at 235-36.
¶13 Similarly, in Keller v. State Bar of California, 496 U.S.
1 (1990), California lawyers were required to join the state bar
association and pay dues as a condition of practicing law in the
state. As it had in Abood, the Court held that an organization
such as a bar association, in which membership is a condition of
employment, may use funds generated from mandatory membership fees
for activities “germane” to the organization, but it could not use
those funds to advocate or support ideological viewpoints “not
‘germane’ to the purpose for which compelled association was
justified.” Id. at 13.
¶14 Finally, in United States v. United Foods, Inc., 533 U.S.
405 (2001), the Court invalidated fees charged to mushroom handlers
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to fund advertisements promoting mushroom sales because the speech
was not germane to a larger regulatory purpose of the association.
¶15 The Abood line of cases instructs that government may not
condition involuntarily associated individuals’ opportunity to
receive a benefit or ply their trade or profession upon their
compelled support of speech with which they disagree. We note,
however, that no benefit is being conditioned upon the payment of
the surcharge at issue here, nor is payment of the surcharge a
precondition to employment. The opportunity to commit a crime or
park illegally is not deserving of the same protection as is the
opportunity to participate in lawful activity contemplated by the
Supreme Court in the Abood line of cases.
¶16 Importantly, the “germaneness test” derived from the
Abood line of cases is predicated upon the existence of an
association. An association is a “gathering of people for a common
purpose; the persons so joined.” BLACK’S LAW DICTIONARY 119 (7th ed.
1999). In this case, the surcharge payers have not joined together
for a common purpose. At best, the group consists of tens of
thousands of otherwise unrelated individuals who, at one time or
another, paid a civil or criminal fine. Indeed, May conceded at
oral argument and in his brief that “there is no association.”
This stands in sharp contrast to the associations in Abood, Keller,
and United Foods, whose members were linked by a common purpose.
The Act, then, does not create an association of fine payers, and
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without an association by which to measure the germaneness of the
speech, the Abood analysis is inapplicable.
¶17 Finally, and critically, the speech in Abood, Keller, and
United Foods was viewpoint driven. In all three cases, the
organization chose the funded speech based on its content. Thus,
the objectors were compelled to be associated with a group message
with which they disagreed. Here, the Clean Elections Act allocates
money to all qualifying candidates, regardless of party, position,
or message, see A.R.S. § 16-951, and thus the surcharge payers are
not linked to any specific message, position, or viewpoint. The
viewpoint neutrality of the disposition of funds distinguishes this
case from Abood, Keller, and United Foods. We therefore conclude
that the Abood line of cases does not control the disposition of
this case.
¶18 The Real Parties in Interest urge us instead to apply
the analysis in Board of Regents v. Southworth, 529 U.S. 217
(2000), in assessing the constitutionality of the Clean Elections
Act. In Southworth, a state university allocated part of a
mandatory student fee, on a viewpoint-neutral basis, to various
student organizations engaged in ideologically expressive
activities. Id. at 222-24. To qualify for funding, student
organizations had to agree to certain accounting requirements and
spending limitations.
¶19 The Court acknowledged that once the university
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conditioned the opportunity to obtain an education on an agreement
to support objectionable speech, the First Amendment was
implicated. Id. at 231. But it rejected the germaneness test
applied in Abood and Keller as “unworkable” in the context of
extracurricular student speech at a university. Id. Recognizing
that the university’s sole purpose in charging the fee was to
facilitate “the free and open exchange of ideas by, and among,
students,” the Court reasoned that “asking what speech is germane
would be contrary to the very goal the University seeks to pursue.”
Id. at 229-32. Instead, the Court determined that “the principal
standard of protection for objecting students . . . is the
requirement of viewpoint neutrality in the allocation of funding
support.” Id. at 233. Although the Court acknowledged that some
students were required to pay fees to subsidize speech they found
“objectionable, even offensive,” the viewpoint neutrality
requirement of the student fee program sufficiently protected the
students’ First Amendment rights. Id. at 230.3
¶20 In the case before us, the court of appeals did not find
Southworth informative, concluding that its analysis applied only
in the university setting. See May, 203 Ariz. at 18, ¶ 17, 49 P.3d
3
Concurring, Justice Souter observed that the relationship
between the fee payer and the objectionable speech was attenuated
because the money was distributed in a neutral manner by an agency
that had “no social, political, or ideological character.”
Southworth, 529 U.S. at 240 (Souter, J., concurring). The same is
true in this case.
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at 290. We think otherwise. While a university is certainly one
venue in which the free and open exchange of ideas is encouraged,
it is not the only one. Encouraging public debate in the political
arena is at least as compelling a public purpose as encouraging
speech on a university campus. Moreover, limiting Southworth to a
university setting overlooks the thrust of the Court’s analysis:
If the government seeks to facilitate or expand the universe of
speech and accomplishes its goal in a viewpoint neutral way, the
question whether speech is germane is simply inapposite.
¶21 We find the Southworth approach better suited than the
Abood line of cases for analyzing the constitutionality of the
Clean Elections Act. The university’s goals in Southworth and the
government’s goals in funding clean elections are similar: Both
seek to facilitate free speech. Moreover, both funding systems
protect free speech rights by requiring viewpoint neutrality in the
allocation of funds and attenuating the connection between the
payers of funds and the message communicated. The principles of
Buckley – that government may use public funds to finance political
speech – and Southworth – that viewpoint neutrality in the
allocation of funds adequately safeguards First Amendment rights –
support the conclusion that collecting a surcharge on civil and
criminal fines to fund political campaigns does not violate the
First Amendment.
¶22 But May counters that the Act is not viewpoint neutral in
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two respects. First, he contends that fine payers are forced to
support the viewpoint that public financing of campaigns represents
good public policy. Yet, as Buckley noted, “every appropriation
made by [government] uses public money in a manner to which some
taxpayers object.” 424 U.S. at 92. For example, taxes from the
state’s general fund are used to pay the salaries of state
legislators, some of whom an individual taxpayer might support and
others whom the taxpayer might not support. Yet no one would
suggest that such payments violate the First Amendment. But
government could not function if taxpayers could refuse to pay
taxes if they disagreed with the government policy or function that
the tax supported.4 See United States v. Lee, 455 U.S. 252, 260
(1982); see also Southworth, 529 U.S. at 229. Second, May argues
that not all candidates request and receive campaign funds. But
Southworth’s insistence on viewpoint neutrality focused on the
government’s method of allocating funds, not the resulting
viewpoints being supported. Southworth, 529 U.S. at 233. The
method of allocating funds under the Clean Elections Act is clearly
neutral with regard to the ideology or message of any candidate and
4
The State makes considerable use of surcharges to fund
various public programs. See, e.g., A.R.S. § 12-116.01(A)
(criminal justice enhancement fund); A.R.S. § 12-116.02 (medical
services enhancement fund); A.R.S. § 12-116.01(B) (fill the gap
fund); A.R.S. § 12-116.01(C) (DNA fund).
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thus passes muster under Southworth.5
¶23 In a final salvo, amicus participant Pacific Legal
Foundation urges that, while “tax dollars . . . may be spent on
expressive activity without violating taxpayers’ First Amendment
rights,” the surcharge at issue here is a fee, not a tax, and
therefore must be analyzed differently. We conclude, however, that
whether the surcharge is a tax or a fee is not dispositive of the
issues in this case. Government may no more violate the First
Amendment by imposing a tax than it may by imposing a fee.
Moreover, we have not discovered any compelled funding case in
5
May urges that two cases that have invalidated campaign
funding schemes should guide the disposition of this case. We do
not find either case applicable. In Butterworth v. Florida, 604
So. 2d 477 (Fla. 1992), the Florida Supreme Court struck down a
1.5% assessment on some contributions to political parties, which
assessment was used to fund political campaigns. The court held
that the assessment “infringes on First Amendment rights by forcing
contributors to decide between contributing to a party and
financing causes or persons with whom they disagree or not
contributing to a party at all.” Id. at 481. The Florida statute
directly burdened political contributions, which implicated First
Amendment speech and association rights that are not burdened under
the Arizona law.
In Vermont Society of Association Executives v. Milne,
779 A.2d 20 (Vt. 2001), the Supreme Court of Vermont ruled that a
tax on lobbyists used to fund political campaigns violated the
lobbyists’ First Amendment rights. As indicated in ¶ 4 of this
opinion, the tax on lobbyists formerly contained in the Clean
Elections Act was held to be unconstitutional. That ruling has not
been appealed and that issue is not before this court. Moreover,
Milne does not assist in the analysis here because, unlike the
lobbyists in that case, the fine payers whose surcharges funded the
Clean Elections Act are a diverse, ephemeral group not “associated”
in any meaningful way and not engaged in any First Amendment
activity.
Because of their dissimilarity to the case before us,
neither Butterworth nor Milne is helpful in resolving this case.
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which the outcome turned on whether the assessment was a fee or a
tax. Nonetheless, we address the issue briefly.
¶24 Whether an assessment should be categorized as a tax or
a fee generally is determined by examining three factors: “(1) the
entity that imposes the assessment; (2) the parties upon whom the
assessment is imposed; and (3) whether the assessment is expended
for general public purposes, or used for the regulation or benefit
of the parties upon whom the assessment is imposed.” Bidart Bros.
v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir. 1996) (citing San
Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967
F.2d 683 (1st Cir. 1992)). All three elements reveal the
assessment here as a tax: It was imposed by citizen initiative on
a broad range of payers for a public purpose. This conclusion does
not end the inquiry, however, for even a tax may be imposed in an
unconstitutional way or for an unconstitutional purpose.
¶25 May argues that if the surcharge is a tax, it is an
unconstitutional “special tax” requiring strict scrutiny because
“it is imposed on less than the whole” population of Arizona
citizens and burdens the First Amendment rights of a narrowly
defined group of taxpayers. May relies on Minneapolis Star and
Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575
(1983), and Murdock v. Pennsylvania, 319 U.S. 105 (1943), to
support his contention that taxes on discrete groups are invalid
because of the threat that “government will destroy a selected
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group of taxpayers by burdensome taxation.” Minneapolis Star, 460
U.S. at 585.
¶26 We disagree with May’s premise that the surcharge does
not apply to all Arizonans. It does; any person who pays a civil
or criminal fine is subject to pay the surcharge. Just as any
person choosing to purchase a new car or other non-exempt good must
pay a tax, any person found to have parked illegally or committed
a crime will face the surcharge. No narrow, discrete group of
taxpayers is at issue in the case before us, nor are the fine
payers exercising a First Amendment right. Minneapolis Star and
Murdock are therefore inapposite.
¶27 The Clean Elections Act’s surcharge stands in stark
contrast to the tax on paper and ink in Minneapolis Star and the
attempted license tax on door-to-door religious proselytizing at
issue in Murdock. The clean elections surcharge is not limited to
a particular group or industry, but is assessed against all
citizens who pay civil and criminal fines. Nor does the surcharge
burden the exercise of a First Amendment right; there is no
expressive content inherent in paying a traffic fine. To the
extent that civil and criminal fine payers are compelled to fund
the Clean Elections Act, the safeguard of viewpoint neutrality in
the allocation of funds suffices to mitigate any First Amendment
concerns.
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CONCLUSION
¶28 In summary, we hold that the surcharge funding provision
of the Citizens Clean Elections Act, A.R.S. § 16-940(C), is
constitutional. We therefore vacate the opinion of the court of
appeals and reinstate the judgment in favor of the Real Parties in
Interest.
Rebecca White Berch, Justice
CONCURRING:
Charles E. Jones, Chief Justice
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
John Pelander, Judge*
*Pursuant to Arizona Constitution article VI, section 3, the
Honorable John Pelander, Judge of the Arizona Court of Appeals,
Division Two, was designated to sit on this case.
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