Saban Rent-A-Car LLC v. Ariz. Dep't of Revenue ( 2019 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
SABAN RENT-A-CAR LLC, ET AL.,
Plaintiffs/Appellees/Cross-Appellants,
v.
ARIZONA DEPARTMENT OF REVENUE,
Defendant/Appellant/Appellee/Cross-Appellee,
TOURISM AND SPORTS AUTHORITY,
Defendant-in-Intervention/Appellant/Cross-Appellee.
No. CV-18-0080-PR
Filed February 25, 2019
Appeal from the Arizona Tax Court
The Honorable Dean M. Fink, Judge
The Honorable Christopher T. Whitten, Judge
No. TX2010-001089
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
244 Ariz. 293 (App. 2018)
AFFIRMED
COUNSEL:
Shawn K. Aiken (argued), Shawn Aiken PLLC, Phoenix; Gregory D.
Hanley, Kickham Hanley PLLC, Royal Oaks, MI; Taylor C. Young, Robert
A. Mandel, Mandel Young PLC, Phoenix, Attorneys for Saban Rent-a-Car
LLC
Mark Brnovich, Arizona Attorney General, Phoenix, Kimberly Cygan, Jerry
A. Fries, Assistant Attorneys General, Phoenix; Thomas L. Hudson
(argued), Eric M. Fraser, Osborn Maledon, P.A., Phoenix, Attorneys for
Arizona Department of Revenue
SABAN et al. v. ADOR et al.
Opinion of the Court
Timothy Berg (argued), Janice Procter-Murphy, Emily Ward, Fennemore
Craig, P.C., Phoenix; and Scot L. Claus, Vail C. Cloar, Dickinson Wright
PLLC, Phoenix, Attorneys for Tourism and Sports Authority
Lawrence A. Kasten, Lewis Roca Rothgerber Christie LLP, Phoenix,
Attorneys for Amicus Curiae John Halikowski, Director, Arizona
Department of Transportation
Michael R. King, Cameron C. Artigue, Christopher L. Hering, Gammage &
Burnham, PLC, Phoenix, Attorneys for Amici Curiae Convention and
Visitors Bureaus
Barbara LaWall, Pima County Attorney, Regina L. Nassen, Deputy County
Attorney, Tucson, Attorneys for Amici Curiae Pima County and the Pima
County Stadium District
Paul F. Eckstein, Thomas D. Ryerson, Perkins Coie LLP, Phoenix, Attorneys
for Amicus Curiae City of Phoenix
Michael K. Kennedy, Mark C. Dangerfield, Gallagher & Kennedy, P.A.,
Phoenix, Attorneys for Amici Curiae The Arizona Chamber of Commerce
& Industry and The Greater Phoenix Chamber of Commerce
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, GOULD, and LOPEZ joined. JUSTICE BOLICK authored an
opinion concurring in part and dissenting in part.
JUSTICE TIMMER, opinion of the Court:
¶1 Maricopa County imposes a surcharge on car rental agencies
to fund a stadium and other sports and tourism-related ventures. The issue
here is whether this surcharge violates the dormant Commerce Clause
implied by Article I, Section 8, Clause 3 of the United States Constitution or
the anti-diversion provision, article 9, section 14 of the Arizona
Constitution. We hold that it does not violate either provision.
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Opinion of the Court
BACKGROUND
¶2 The legislature created the Arizona Tourism and Sports
Authority (the “AzSTA”) in 2000 to build and operate a sports stadium,
build Major League Baseball spring training facilities, build youth and
amateur sports and recreation facilities, and promote tourism. See A.R.S. §§
5-801(4), -802(A), -807 to -809, -815. AzSTA’s authority is restricted to
counties with populations greater than two million people, meaning it has
only ever operated in Maricopa County. See § 5-802(A). AzSTA’s
construction projects are funded solely by taxes and surcharges approved
by Maricopa County voters. See § 5-802(C). One such voter-approved
surcharge is at issue here.
¶3 Soon after the creation of AzSTA, Maricopa County voters
passed an initiative that levied a surcharge on car rental companies based
on their income derived from leasing vehicles for less than one year. See
A.R.S. § 5-839(A)–(C) (authorizing voters to levy the surcharge and
providing its terms). (The initiative also imposed a tax on hotels. The hotel
tax is not at issue here.) The surcharge is the greater of $2.50 per rental or
3.25% of the company’s gross proceeds or gross income.
§ 5-839(B)(1). If the rental is a “temporary replacement” for a damaged or
lost vehicle, however, the surcharge is a flat $2.50. § 5-839(B)(2). The state
treasurer distributes $2.50 per rental transaction to the Maricopa County
Stadium District, which has collected a surcharge in this amount since 1991.
See § 5-839(G)(1); Act of June 25, 1991, ch. 285, § 10, 1991 Ariz. Sess. Laws
1444, 1451–53 (1st Reg. Sess.) (codified at A.R.S. § 48-4234). The remaining
amount, the difference between $2.50 per rental transaction and 3.25% of
the company’s gross income or proceeds, is distributed to AzSTA.
§ 5-839(G)(2). Although the surcharge is imposed on car rental companies,
they can and do pass its cost on to their customers.
¶4 Plaintiff Saban Rent-a-Car (“Saban”) rents vehicles in
Maricopa County and has paid the car rental surcharge. Its customers are
primarily local residents. In 2009, after unsuccessfully seeking a refund
from the Arizona Department of Revenue (“ADOR”), Saban sued ADOR in
the tax court and sought refunds and injunctive relief for all similarly
situated car rental companies. The tax court certified a class of all
individuals or entities that paid the surcharge from September 2005
through March 2008 and allowed AzSTA to intervene as a defendant.
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Opinion of the Court
¶5 As it does here, Saban argued to the tax court that the
surcharge violates both the dormant Commerce Clause and the
anti-diversion provision. On cross-motions for summary judgment, the
court agreed with ADOR and AzSTA that the surcharge does not violate
the dormant Commerce Clause. It agreed with Saban, however, that the
surcharge violates the anti-diversion provision. Consequently, the court
granted summary judgment for Saban and ordered ADOR to refund the
surcharge payments to class members. The court also authorized ADOR to
recoup the refund amounts from AzSTA pursuant to A.R.S. § 42-5029(G).
¶6 Like the tax court, the court of appeals ruled that the
surcharge does not violate the dormant Commerce Clause. Saban Rent-A-
Car LLC v. Ariz. Dep’t of Revenue, 244 Ariz. 293, 296 ¶ 2 (App. 2018). But
unlike the tax court, the court of appeals concluded that the surcharge also
does not violate the anti-diversion provision. Id. It therefore reversed the
tax court’s ruling and remanded for entry of summary judgment in favor
of ADOR and AzSTA. See id. at 308 ¶ 49.
¶7 We granted review to address these legal issues of statewide
importance. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.
DISCUSSION
I. The Dormant Commerce Clause
¶8 We review the constitutionality of the car rental surcharge de
novo, as a question of law. See Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014).
Likewise, “[w]e review questions of statutory construction and grants of
summary judgment de novo.” BSI Holdings, LLC v. Ariz. Dep’t of Transp.,
244 Ariz. 17, 19 ¶ 9 (2018). We presume that a statute not involving
fundamental constitutional rights or suspect-classification distinctions is
constitutional “and will uphold it unless it clearly is not.” Cave Creek Unified
Sch. Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 11 (2013).
¶9 The Commerce Clause empowers Congress “[t]o regulate
Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3. By
negative implication, states cannot unjustifiably discriminate against or
erect barriers to interstate commerce. See Or. Waste Sys., Inc. v. Dep’t of
Envtl. Quality of Or., 511 U.S. 93, 98 (1994). This implied restraint is known
as the “dormant Commerce Clause” and serves to prevent “economic
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protectionism[,] that is, regulatory measures designed to benefit in-state
economic interests by burdening out-of-state competitors.” Dep’t of Revenue
of Ky. v. Davis, 553 U.S. 328, 337–38 (2008); see also Gen. Motors Corp. v. Tracy,
519 U.S. 278, 299 (1997) (describing the dormant Commerce Clause’s
fundamental objective as “preserving a national market for competition
undisturbed by preferential advantages conferred by a State upon its
residents or resident competitors”). The principles developed under the
dormant Commerce Clause to counter economic Balkanization, however,
have respected a degree of local autonomy, as favored by the Framers. See
Davis, 553 U.S. at 338; see also Hunt v. Wash. State Apple Advert. Comm’n, 432
U.S. 333, 350 (1977) (recognizing that “in the absence of conflicting
legislation by Congress, there is a residuum of power in the state to make
laws governing matters of local concern which nevertheless in some
measure affect interstate commerce or even, to some extent, regulate it”
(internal quotation marks omitted)).
¶10 To determine if a law violates the dormant Commerce Clause,
courts initially ask whether the law “regulates evenhandedly with only
incidental effects on interstate commerce, or discriminates against interstate
commerce.” Or. Waste Sys., 511 U.S. at 99 (internal quotation marks
omitted). If a law is discriminatory, it will survive only if its proponents
“show that it advances a legitimate local purpose that cannot be adequately
served by reasonable nondiscriminatory alternatives.” Id. at 100–01
(internal interlineations and quotation marks omitted). Courts have
sometimes noted that such scrutiny renders a law “virtually per se invalid.”
See id. at 99. If the challenged law is non-discriminatory but incidentally
affects interstate commerce, a balancing test is used, and the law will be
upheld unless “the burden imposed on such commerce is clearly excessive
in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S.
137, 142 (1970).
¶11 Saban argues the car rental surcharge is discriminatory and
thus subject to strict scrutiny review. A “discriminatory” tax is one that is
“facially discriminatory, has a discriminatory intent, or has the effect of
unduly burdening interstate commerce.” Amerada Hess Corp. v. Dir., Div. of
Taxation, N.J. Dep’t of the Treasury, 490 U.S. 66, 75 (1989). Saban abandons
prior assertions that the surcharge is facially discriminatory and unduly
burdens interstate commerce, see Saban, 244 Ariz. at 303 ¶ 30, 304 ¶ 32, and
solely argues the surcharge is “invalid because it was motivated by
discriminatory intent, that is, forcing out-of-state visitors [to] pay a special
tax that residents are shielded from.” ADOR and AzSTA counter that the
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surcharge was not enacted with a discriminatory intent but, even if it was,
intent alone is an insufficient reason to invalidate the surcharge.
¶12 The car rental surcharge was not enacted with a
discriminatory intent, as that term is used in Commerce Clause
jurisprudence. Discrimination “means differential treatment of in-state and
out-of-state economic interests that benefits the former and burdens the
latter.” Or. Waste Sys., 511 U.S. at 99. Nothing in the language of the
surcharge or in the publicity pamphlet for the initiative enacting the
surcharge suggests an intent to treat in-state and out-of-state interests
differently or engage in the type of “economic protectionism” at odds with
the Commerce Clause. Indeed, the surcharge applies equally to resident
and non-resident car rental agencies operating in Maricopa County and is
calculated and imposed without regard to their customers’ residencies.
¶13 Saban nevertheless argues that discriminatory intent exists
because statements in the initiative’s publicity pamphlet suggest voters
targeted non-resident visitors, who purportedly rent most vehicles offered
by car rental agencies, to pay the lion’s share of the surcharges. But even if
true, this does not evidence an intent that out-of-state visitors be treated any
differently from residents, as required to be discriminatory. See id. The fact
that visitors as a group pay most of the surcharges collected by car rental
agencies is not “discriminatory.”
¶14 The Supreme Court’s decision in Commonwealth Edison Co. v.
Montana, 453 U.S. 609 (1991), is illuminative. There, the Court concluded
that Montana’s tax on the sale of coal did not violate the dormant
Commerce Clause even though most of the tax burden was borne by
out-of-state consumers. Id. at 618, 636. The Court expressed misgivings
about judging the validity of a state tax on “its ‘exportation’ of the tax
burden out of State,” as the challengers there urged. Id. at 618. It noted that
for purposes of promoting free trade under the Commerce Clause, state
borders are “essentially irrelevant” and reasoned that “invalidat[ing] the
Montana tax solely because most of Montana’s coal is shipped across the
very state borders that ordinarily are to be considered irrelevant would
require a significant and, in our view, unwarranted departure from the
rationale of our prior discrimination cases.” Id. at 618–19. The Court also
disagreed with the challengers’ argument that out-of-state consumers
should be protected from discriminatory tax treatment, pointing out “there
is no real discrimination in this case; the tax burden is borne according to
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Opinion of the Court
the amount of coal consumed and not according to any distinction between
in-state and out-of-state consumers.” Id. at 619.
¶15 Although Commonwealth Edison addressed the purported
discriminatory effect of Montana’s coal tax, the Court’s reasoning also
reveals the meaning of “discriminatory intent” under the dormant
Commerce Clause. Just as a tax that does not differentiate between
interstate and intrastate commerce does not have a “discriminatory effect”
when the tax burden is borne primarily by out-of-state consumers, those
who enacted the tax intending that consequence did not do so with a
“discriminatory intent.” Cf. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270–
71 (1984) (stating that the Hawaii legislature acted with discriminatory
intent by exempting only certain Hawaiian-made alcohol from alcohol tax
to encourage and promote Hawaiian industry). Concluding otherwise
would mean the validity of a tax would turn on serendipity: one state’s tax
that happens to be disproportionately paid by non-residents would be
valid, see Commonwealth Edison, 453 U.S. at 618–19, while the same tax in
another state would be invalid only because its enactors intended that
result. Because the surcharge here, like the Montana coal tax, is imposed
even-handedly and does not distinguish between in-state and out-of-state
car rental agencies or consumers, any intent by voters that out-of-state
visitors ultimately pay most of the surcharge was not “discriminatory.”
¶16 Saban argues that the car rental surcharge is like the Maine
tax scheme that the Supreme Court invalidated under the dormant
Commerce Clause in Camps Newfound/Owatonna, Inc. v. Town of Harrison,
520 U.S. 564 (1997). Maine provided a complete property and personal tax
exemption for charitable organizations incorporated in the state but only if
they did not operate principally for the benefit of non-residents. Id. at 568.
As a result, a church camp catering mostly to out-of-state campers was
required to pay taxes while organizations operating camps attracting
mostly Maine residents were exempt. Id. at 568–69. The Court found the
Maine tax scheme facially discriminatory because it expressly “singl[ed] out
camps that serve mostly in-staters for beneficial tax treatment, and
penaliz[ed] those camps that do a principally interstate business.” Id. at
575–76. It also analogized the discriminatory exemption to prohibited
special fee assessments charged nonresidents for use of local services,
noting “Maine’s facially discriminatory tax scheme falls by design in a
predictably disproportionate way” on non-residents and has the same
“pernicious effect on interstate commerce.” Id. at 578–80; see also id. at 579
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n.13 (stating “the [Maine] tax scheme functions by design and on its face to
burden out-of-state users disproportionately”).
¶17 We disagree with Saban that the car rental surcharge is
tantamount to Maine’s scheme to disproportionately burden non-residents
who used services provided by in-state charitable organizations. The
disproportionate burden in Camps Newfound/Owatonna referred to the costs
placed only on non-residents for using in-state services. See id. at 578–79
(explaining that the discriminatory exemption is effectively no different
from imposing a penalty on activity). It did not refer to the disparate impact
on non-residents that stems solely from the fact that they consume more of
the uniformly taxed good or service than in-state consumers. See id. at 580
n.13 (distinguishing Commonwealth Edison because although non-residents
bore most of the Montana coal tax burden by virtue of buying most of the
coal, the tax was based on consumption and made no distinctions between
resident and non-resident consumers). Like the tax in Commonwealth
Edison, and unlike the exemption in Camps Newfound/Owatonna, the car
rental surcharge is imposed uniformly on all car rental agencies, and
ultimately on their customers, regardless of the agencies’ or customers’
residency status.
¶18 Saban also argues that voters acted with discriminatory intent
by “exempting” temporary replacement vehicles “as a proxy for an overt
exemption for the ‘ordinary Arizona citizen.’” See § 5-839(B)(2). We
disagree. First, temporary replacement vehicles are not exempted from the
surcharge. Rather, the surcharge is calculated at $2.50 per vehicle rather
than the greater of $2.50 per rental or 3.25% of the company’s gross
proceeds or gross income, as the surcharge is calculated for other rentals.
See § 5-839(B)(1)–(2). Second, nothing suggests car rental agencies pass
through more than $2.50 per rental to ordinary renters, thereby suggesting
that those renting temporary replacement vehicles are treated more
favorably. Indeed, according to its owner, Saban, like other car rental
agencies, charges the same surcharge rate to all its customers. Third, the
temporary replacement vehicle calculation applies whether the renter is a
resident or a non-resident. And because numerous non-residents
temporarily relocate to Arizona during the year, it is likely that many non-
residents rent temporary replacement vehicles.
¶19 In sum, the voters did not enact the car rental surcharge with
a discriminatory intent because they did not intend to treat in-state and
out-of-state economic interests differently. As a result, the surcharge does
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not trigger strict scrutiny review. Because Saban does not assert that the tax
court or court of appeals misapplied the Pike balancing test, we do not
address that issue. And considering our decision, we do not resolve the
extent to which discriminatory intent alone can invalidate a tax under the
dormant Commerce Clause. We note, however, that as Saban
acknowledged at oral argument, a tax must burden interstate commerce in
some way to be invalidated under that clause. Cf. Or. Waste Sys., 511 U.S.
at 98 (describing dormant Commerce Clause as addressing discrimination
against or erection of barriers to interstate commerce).
II. The Anti-Diversion Provision
¶20 The anti-diversion provision, article 9, section 14 of the
Arizona Constitution, provides in relevant part as follows:
No moneys derived from fees, excises, or license taxes
relating to registration, operation, or use of vehicles on the
public highways or streets or to fuels or any other energy
source used for the propulsion of vehicles on the public
highways or streets, shall be expended for other than
highway and street purposes.
The parties agree the car rental surcharge is an excise and is unrelated to
vehicle registration. The only issue, therefore, is whether the surcharge
“relat[es] to [the] . . . operation[] or use of vehicles,” which determines
whether surcharge revenues must be used for road-related purposes.
Resolution of this issue turns on the meaning of “relating to.”
¶21 Our primary goal in interpreting the anti-diversion provision
is to effectuate the electorate’s intent in adopting it. See Jett v. City of Tucson,
180 Ariz. 115, 119 (1994). If we can discern the provision’s meaning from
its language alone, we will apply it without further analysis. See id. In
doing so, however, we do not apply “[f]ine semantic or grammatical
distinctions, legalistic doctrine [or] pars[e] . . . sentences,” as doing so “may
lead us to results quite different from the objectives which the framers
intended to accomplish.” United States v. Superior Court, 144 Ariz. 265, 275–
76 (1985). “Constitutions, meant to endure, must be interpreted with an eye
to syntax, history, initial principle, and extension of fundamental purpose.”
Id.; cf. Heath v. Kiger, 217 Ariz. 492, 495 ¶ 12 (2008) (“[C]ourts should avoid
hypertechnical constructions that frustrate legislative intent.” (quoting State
v. Estrada, 201 Ariz. 247, 251 ¶ 19 (2001)).
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¶22 Saban argues that a fee, excise, or tax “relating to” the use or
operation of vehicles plainly means one that is “connected to” driving
vehicles on Arizona roads. And because the surcharge is passed through
to car rental customers and “[c]ustomers rent cars to use them” on Arizona
roads, Saban contends the surcharge falls within the anti-diversion
provision. But Saban, somewhat anomalously, concedes that “‘related to’
could have an almost unlimited reach if construed too broadly” and thus
must be limited. We accept this concession. As the court of appeals
explained, interpreting “relating to” as having any connection to the use or
operation of vehicles on the pubic highways would encompass revenues
that voters clearly did not intend to be covered, including those from “retail
sales or business privilege taxes on car sales, tire sales, car leases and car
repairs.” See Saban, 244 Ariz. at 298 ¶ 10, 301 ¶ 23. Because we cannot
discern the meaning of “relating to” from the language of the anti-diversion
provision alone, we consider its text in conjunction with the history and
purpose of the provision.
¶23 The anti-diversion provision’s origins are rooted in the early
proliferation of automobiles in the United States, which sparked a need for
a more extensive road network. See Chad D. Emerson, All Sprawled Out:
How the Federal Regulatory System Has Driven Unsustainable Growth, 75 Tenn.
L. Rev. 411, 437–38 (2008). Although state and local governments had
traditionally borne the costs of building, improving, and maintaining roads,
Congress passed the Federal Aid Road Act in 1916 to provide funding
assistance. See id. at 432–33, 438. Even so, states, including Arizona, soon
looked to new revenue sources, like gasoline taxes, to pay increasing costs
rather than raising existing taxes. See id. at 438 (stating, for example, that
by the end of the 1920s, every state had adopted a gasoline tax); Texas Co. v.
State, 31 Ariz. 485, 487 (1927) (addressing Arizona’s gasoline tax passed in
1921).
¶24 Congress passed the Hayden-Cartwright Amendment in
1934, which, in part, amended the Federal Aid Road Act by reducing federal
aid to states that had imposed taxes on motor-vehicle transportation to fund
roads before 1935 but thereafter diverted those tax revenues to non-road-
related purposes. See Hayden-Cartwright Amendment of 1934, Pub. L. No.
73-393, § 12, 48 Stat. 993, 995 (1934). Specifically, the Amendment provided:
Since it is unfair and unjust to tax motor-vehicle
transportation unless the proceeds of such taxation are
applied to the construction, improvement, or maintenance of
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highways, after June 30, 1935, Federal aid for highway
construction shall be extended only to those States that use at
least the amounts now provided by law for such purposes in
each State from State motor vehicle registration fees, licenses,
gasoline taxes, and other special taxes on motor-vehicle
owners and operators of all kinds for the construction,
improvement, and maintenance of highways and
administrative expenses in connection therewith . . . .
Id. Rather than risk reduced federal funding by failing to devote road-user
tax revenues to road uses at less than 1934 levels, “all states have, by
custom, statute or constitution, pledged highway user taxes to highway
construction.” Jerry L. Mashaw, The Legal Structure of Frustration:
Alternative Strategies for Public Choice Concerning Federally Aided Highway
Construction, 122 U. Pa. L. Rev. 1, 8 (1973).
¶25 Arizona reacted to the Hayden-Cartwright Amendment and
ensured stable roadway funding by passing the “Better Roads
Amendment” referendum in 1952, which added the anti-diversion
provision to the state constitution. The publicity pamphlet mailed to all
voters contained a “pro” argument from the Arizona Better Roads
Committee’s chair, who described the provision’s purpose as “insur[ing]
the expenditure of all revenues derived from road users to road uses only.”
See Ariz. Sec’y of State, 1952 Publicity Pamphlet 3 (1952),
http://azmemory.azlibrary.gov/digital/collection/statepubs /id/10641
(hereinafter “Pamphlet”); Ariz. Early Childhood Dev. & Health Bd. v. Brewer,
221 Ariz. 467, 471 ¶ 14 (2009) (stating publicity pamphlets can be examined
to ascertain electorate’s intent in passing a measure). He quoted the
Hayden-Cartwright Amendment’s rationale that diverting such tax
revenues would be “unfair and unjust,” see supra ¶ 24, and noted the
importance of not “jeopardiz[ing] federal aid by allowing any diversion of
road user taxes to other than road purposes.” Pamphlet, supra, at 4–5. (The
Pamphlet did not contain other arguments.)
¶26 Saban argues that the text, purpose, and history of the
anti-diversion provision demonstrate it applies to tax revenues “connected
to” use or operation of vehicles on roads, as limited by an historically
grounded “benefits theory of taxation.” Specifically, the provision applies
only to taxes and fees specially imposed on “those who impose wear and
tear or otherwise benefit from using the roads.”
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¶27 ADOR and AzSTA argue that Saban’s “benefits theory”
limitation is illusory as it would give “relating to” an unlimited application
that voters did not intend. They urge the court of appeals’ narrower view
that “relating to . . . the . . . use[] or operation of vehicles” refers to “a tax or
fee that is a prerequisite to, or triggered by, the legal operation or use of a
vehicle on a public thoroughfare.” See Saban, 244 Ariz. at 302 ¶ 25. We
agree with the court of appeals’ interpretation.
¶28 First, the provision’s text supports a narrower interpretation
of the disputed phrase than one meaning “connected to” or benefitting from
road usage. The provision applies to two categories of taxes: (a) those
“relating to” the “registration, operation, or use of vehicles,” and (b) those
imposed on fuels and other energy sources used to propel vehicles. See
Ariz. Const. art. 9, § 14. Registration fees and fuel taxes are “connected to”
the use or operation of vehicles. Owners register vehicles to use the roads.
And fuel sellers indisputably benefit from their customers’ use and
operation of vehicles. The explicit mention of registration fees and fuel
taxes therefore suggests that tax revenues “relating to . . . the . . . operation,
or use of vehicles” encompass a more finite tax class than revenues derived
from those with a “connection to” road usage or who benefit from it.
Otherwise, as the court of appeals noted, the references to registration fees
and fuel taxes would be superfluous. See Saban, 244 Ariz. at 298 ¶ 13; see
also Fields v. Elected Officials’ Ret. Plan, 234 Ariz. 214, 218 ¶ 16 (2014)
(rejecting proposed interpretation of constitution that would render
language meaningless). Interpreting “relating to” as the court of appeals
did gives meaning to all terms.
¶29 We are unpersuaded by Saban’s assertion that the legislature
explicitly mentioned registration fees and fuel taxes in the Better Roads
Amendment referendum simply to remove any doubt they were covered.
We presume the legislature avoids redundancy in favor of concision and
see no reason to conclude otherwise here. See City of Phx. v. Glenayre Elecs.,
Inc., 242 Ariz. 139, 147 ¶ 32 (2017). We also disagree with Saban that the
legislature demonstrated a penchant for redundancy by referring to
revenues from both the “operation” and “use” of vehicles. They are
different. The former refers to fees imposed on drivers while the latter refers
to taxes and fees assessed on vehicles. See, e.g., A.R.S. §§ 28-3002(A) (setting
fees for driver licenses), -5471(A) (setting vehicle registration fees).
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¶30 Second, the anti-diversion provision’s history supports the
court of appeals’ interpretation. The Pamphlet identified non-fuel-related
revenues dedicated to roads as “registration fees, unladen weight fees on
common and contract motor carriers, and motor carrier taxes based on
gross receipts” that are all “derived from road users.” See Pamphlet, supra,
at 3. All these taxes and fees are prerequisites for or triggered by the legal
use of vehicles on our roads. None are imposed on businesses, like car
rental agencies, that merely benefit from the existence of roads.
¶31 Notably, the Pamphlet also stated that adopting the
referendum would maintain the status quo as Arizona was then using all
road-user taxes for road uses. Pamphlet, supra, at 5 (“Arizona is in a
particularly favorable position to adopt [the anti-diversion provision] this
year, because it is not now diverting its road user taxes . . . [and passage]
will entail no change in the source or expenditure of highway revenues.”).
Yet Arizona had imposed transaction privilege taxes on car rental agencies
since 1935 and used those revenues for general purposes. See Saban, 244
Ariz. at 299 ¶ 15 (relating history of transaction privilege tax on car rental
agencies). This history suggests that neither the referendum drafter (the
legislature) nor voters considered existing taxes on car rental agencies to be
“road user taxes” or intended to include such taxes within the provision’s
ambit.
¶32 Saban agrees that 1952 voters did not intend that the
anti-diversion provision apply to transaction privilege taxes on car rental
agencies. It nevertheless argues that the car rental surcharge is
distinguishable, likening it to the license tax Arizona imposed on common
and contract motor carriers of property and passengers in 1952, which the
Pamphlet described as a road-user tax that would be subject to the
provision. See Act of Mar. 18, 1933, ch. 100, §§ 2, 17, 1933 Sess. Laws 472,
473–74, 481–82 (codified at Ariz. Ann. Code §§ 66-502, -518 (1939));
Pamphlet, supra, at 3, 5. Specifically, Saban asserts that, like the motor
carrier license tax, the surcharge is a “special tax” not imposed generally on
all businesses but aimed at “motor vehicle owners and operators of all
kinds” who benefit from using Arizona roads. According to Saban, and
echoing the Hayden-Cartwright Amendment’s vernacular, it would be
“unfair and unjust” to impose the surcharge on car rental drivers but divert
those revenues from road-related purposes.
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SABAN et al. v. ADOR et al.
Opinion of the Court
¶33 We disagree that the car rental surcharge is more like the
motor carrier license tax imposed in 1952 than the 1935 transaction privilege
tax imposed on car rental agencies. Payment of the motor carrier license
tax was required to legally use vehicles on our roads. See §§ 2, 17, 1933 Sess.
Laws at 473–74, 481–82. In contrast, the surcharge, like the transaction
privilege tax, is imposed on the business of renting vehicles and is not
required to be paid before a rental vehicle can be legally operated on roads.
Instead, car rental agencies pay licensing fees, like everyone else, to
authorize a vehicle’s road usage whether the operator is an employee or a
customer. See A.R.S. §§ 28-2153(A), -2157 (requiring vehicle registration
and payment of registration fees). And car rental drivers pay licensing fees
to their home states/countries as a condition for driving on Arizona roads.
See A.R.S. §§ 28-3151, -3158(B) (requiring driver’s license and payment of
fee). Additionally, the surcharge is no more aimed at car rental customers
than was the 1935 transaction privilege tax. Like the surcharge, the
transaction privilege tax could be passed on to car rental customers, yet the
tax was not considered a road-user tax and did not fall within the provision.
¶34 That the surcharge is a “special tax” not levied generally on
all businesses also fails to distinguish it from the 1935 transaction privilege
tax. When enacted, that tax applied to a limited number of businesses. See
White v. Moore, 46 Ariz. 48, 54–55 (1935) (describing 1935 transaction
privilege tax and noting “the Legislature thought best not to impose it
on . . . all lines of endeavor but only on . . . certain occupations and
businesses”), superseded by statute as stated in Peterson v. Smith, 92 Ariz. 340,
342 (1962). Car rental agencies fell within a class of public entertainment
and tourist-related businesses, which were taxed at the highest rate. See id.at 55–56. Regardless of this “special” treatment, the legislature and voters
in 1952 did not consider the tax a road-user tax. Similarly, the anti-
diversion provision does not apply to the surcharge, which is part of a
taxing plan that imposes a special tax on hotels, simply because it applies
only to car rental agencies.
¶35 The court of appeals’ interpretation also aligns with the
Hayden-Cartwright Amendment, which at least partially drove the Better
Roads Amendment. The Hayden-Cartwright Amendment conditioned full
federal aid on a state continuing to direct revenues from road-user taxes
and fees to road uses. See supra ¶ 24. As explained, revenues from the 1935
transaction privilege tax on car rental agencies were never dedicated solely
for road purposes. Likewise, directing surcharge revenues, which also
14
SABAN et al. v. ADOR et al.
Opinion of the Court
derive from taxes imposed on the business of renting vehicles, to non-road
purposes does not offend the Hayden-Cartwright Amendment.
¶36 Finally, we agree with ADOR and AzSTA that Saban’s
“benefits theory” provides no limitation to the term “relating to.” If the
anti-diversion provision applies to the surcharge, no principled reason
exists not to apply it to fees and taxes levied against car sale dealers,
automotive repair shops, and the like.
¶37 Justice Bolick’s partial dissent accuses us of embarking on a
“circuitous journey” that “rewrite[s] constitutional text” to “create[] a
loophole” for publicly financed sports stadiums. See infra ¶¶ 41–42, 59.
Strong words. But they are not backed by rejoinders to our analysis
rejecting Saban’s “special tax” argument, see supra ¶¶ 31–35, despite the fact
the dissent adopts Saban’s view. See infra ¶¶ 49–51 (stating that “a tax is
‘relating to’ if it is specially directed at the operation or use of vehicles on
public highways,” and concluding that a surcharge imposed on car rental
agencies is such a tax).
¶38 The dissent’s effort to ascertain the voters’ intent in enacting
the anti-diversion provision by parsing language from the Hayden-
Cartwright Amendment is unpersuasive. See infra ¶¶ 45–49. Neither the
provision nor the Pamphlet recited (or even mentioned) the language
seized on by the dissent, meaning that language almost certainly had no
bearing on voters’ intent. Also, the provision was not enacted to comply
with the Hayden-Cartwright Amendment and obtain federal funding. See
infra ¶ 49 (“Arizona voters implemented the Hayden-Cartwright
Amendment through the anti-diversion clause.”). Arizona had already
been receiving federal funding for roads at the time the provision was
adopted in 1952. See Pamphlet, supra, at 5. Necessarily, therefore, the state
had already complied with the Hayden-Cartwright Amendment by
devoting road-user taxes—which did not include the “special” transaction
privilege tax placed on car rental agencies—to road uses. Proponents of the
provision were driven by the desire to ensure that Arizona continued to
devote these tax revenues to road uses. See Pamphlet, supra, at 5 (“Public
policy in Arizona has consistently opposed diversion [of road user taxes to
non-road purposes], although there have been constant threats to highway
funds in bills introduced from time to time in the legislature.”).
¶39 In sum, “fees, excises, or license taxes relating to . . . the . . .
operation, or use of vehicles” are ones imposed as a prerequisite to, or
15
SABAN et al. v. ADOR et al.
Opinion of the Court
triggered by, the legal operation or use of a vehicle on a public road. The
surcharge falls outside this definition and therefore does not violate the
anti-diversion provision.
CONCLUSION
¶40 For the foregoing reasons, we affirm the court of appeals’
opinion. We reverse the tax court’s judgment in favor of Saban and remand
with directions to enter judgment in favor of ADOR and AzSTA and for
any further required proceedings consistent with our opinion. Finally, we
vacate the tax court’s refund order.
16
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
BOLICK, J., concurring in part and dissenting in part.
¶41 The majority today concludes that our constitution’s anti-
diversion clause, which requires that revenues derived from taxes relating
to the operation of motor vehicles must be allocated for public highways,
does not apply to a tax relating to the operation of motor vehicles. Because
I believe that the best route to a constitutional destination is usually a
straight line, I must forsake the majority’s circuitous journey. I therefore
respectfully dissent from Part II of the majority opinion, while joining the
Court’s Commerce Clause analysis with some reservations.
Anti-diversion Clause
¶42 If we asked a dozen random non-lawyers whether a rental
vehicle tax is related to the operation or use of vehicles on the public
highways or streets, chances are excellent that unless they perceived a trick
question based on the obvious answer, all twelve would say “of course!”
While I do not suggest that a term’s obvious meaning is always the legal
meaning, when our reading diverges markedly from a provision’s ordinary
meaning, we should have an exceedingly good reason for reaching that
conclusion. Even then, we should hew as closely as possible to the text’s
plain meaning to help resist the temptation to exceed our constitutional
boundaries. Even public objectives of the highest order, including
(apparently) the building of publicly financed stadiums, do not license us
to rewrite constitutional text.
¶43 We must presume that the amendment’s framers consciously
and intentionally chose the words they used. See Rumery v. Baier, 231 Ariz.
275, 278 ¶ 15 (2013). Our duty is to give effect to those words. See id. In
giving effect to the words chosen, we start with the words’ plain meaning.
See id.; Cain v. Horne, 220 Ariz. 77, 80 ¶ 10 (2009). All agree that the term
“relating to” is quite broad; from that we can only properly infer that the
framers intended a broad scope. Thus, when we seek to apply a “limiting
principle,” we should do so in the manner most consistent with the broad
language chosen by the amendment’s drafters. See Cain, 220 Ariz. at 80 ¶ 10;
cf. Johnson v. State ex rel. Dep’t of Transp., 224 Ariz. 554, 557 ¶ 15 (2010) (citing
with approval to another court’s rejection of a narrow interpretation of
17
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
Federal Rule of Evidence 407 because “this narrow interpretation ignores
the literal language of the rule” (internal quotation marks omitted)).
¶44 Instead, the majority construes the term “relating to” in a
narrow way that changes its meaning. The Court holds today that “relating
to” actually means “triggered by” or a “prerequisite to,” supra ¶ 39, thereby
substituting constitutional text with what the majority determines its
authors meant to say. Even under that judicially-constructed rubric,
revenues collected from the surcharge here should be allocated to public
highways and roadways. And though the term “relating to” as used in the
anti-diversion clause is indeed elastic, a linear view of the enactments at
issue yields a more straightforward interpretation that does not necessitate
rewriting constitutional language.1
¶45 It is undisputed that the anti-diversion clause emanated from
Arizona’s desire to retain federal highway funding. In the Hayden-
Cartwright Amendment, Congress mandated that tax revenues derived
from the use or operation of motor vehicles would be dedicated to highway
funding. Pub. L. No. 73-393, § 12, 48 Stat. 993, 995 (1934). Then the voters
approved article 9, section 14 of the Arizona Constitution to effectuate that
command. Many years later, the legislature enacted the current surcharge
on rental car companies and allocated the funding to sports authorities.
Examining the relevant provisions of these three enactments in close
proximity is highly probative.
¶46 The pertinent provision of the Hayden-Cartwright
Amendment specifically notes that “it is unfair and unjust to tax motor-
vehicle transportation unless the proceeds of such taxation are applied to
the construction, improvement, or maintenance of highways.” Hayden-
Cartwright Amendment § 12. Thus, the Amendment directs states wishing
1 I agree with the majority that the Plaintiffs’ principal assertion that
“relating to” means “connected to” is unpersuasive. See supra ¶ 28.
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SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
to retain federal highway funding to restrict to highway use revenues
derived from
[s]tate motor vehicle registration fees, licenses, gasoline taxes,
and other special taxes on motor-vehicle owners and operators of all
kinds . . . .
Id. (emphasis added). The italicized words are illuminating, as they contain
language that is both limiting and broad.
¶47 First, the term “other special taxes” connotes taxes—like
registration fees, licenses, and gasoline taxes—that are directed specifically
to the use of motor vehicles. The ejusdem generis canon supports this
reading: where a general term, such as “other special taxes,” follows a list
of specific terms, the general term should be construed narrowly to
“persons or things of the same general nature or class” as the more specific
terms. Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 326 ¶ 13 (2011)
(quoting State v. Barnett, 142 Ariz. 592, 596 (1984)). Consequently, “other
special taxes” should be interpreted narrowly to mean relating to the use of
motor vehicles as the terms that precede it are of this nature. Thus, the term
“special taxes” would not encompass general taxes that included the use of
motor vehicles but were not specially directed toward them. The “special
taxes” phrasing also shows that the Hayden-Cartwright Amendment only
implicates taxes that are directed specifically to a particular project rather
than general taxes that go to the general fund. Tax, Black’s Law Dictionary
(10th ed. 2014) (defining special tax as “[a] tax levied for a unique
purpose”).
¶48 Second, the term “motor-vehicle owners and operators of all
kinds” is very broad, and thus is meant to be inclusive, not exclusive. Given
the statute’s stated purpose, this provision suggests that it is the use of the
roads rather than hyper-technical legal distinctions among motor-vehicle
owners and operators that should govern the statute’s applicability; the
effect on the roads is the same regardless.
¶49 In turn, Arizona voters implemented the Hayden-Cartwright
Amendment through the anti-diversion clause, article 9, section 14 of the
Arizona Constitution, which provides in relevant part:
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SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
No moneys derived from fees, excises, or license taxes relating
to registration, operation, or use of vehicles on the public highways
or streets . . . shall be expended for other than highway and
street purposes . . . .
(Emphasis added.)
¶50 This provision should be read in pari materia with the Hayden-
Cartwright Amendment as the former implements the requirements of the
latter and thus each deals with the same subject matter. See David C. v.
Alexis S., 240 Ariz. 53, 55 ¶ 9 (2016) (“Statutes that are in pari materia—those
of the same subject or general purpose—should be read together and
harmonized when possible.”); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 252 (2012) (“Any word or phrase that
comes before a court for interpretation is part of a whole statute, and its
meaning is therefore affected by other provisions of the same statute. It is
also, however, part of an entire corpus juris. . . . Hence laws dealing with
the same subject—being in pari materia . . . [,] should if possible be
interpreted harmoniously.”). Indeed, if the constitutional provision did not
fully and faithfully follow the federal statute, Arizona would jeopardize
federal highway funds—and ironically, the Court’s decision today may risk
exactly that—which was precisely why it was adopted. See Ariz. Sec’y of
State, 1952 Publicity Pamphlet 5 (1952),
http://azmemory.azlibrary.gov/digital/collection/statepubs%20/id/106
41 (“Why jeopardize federal aid by allowing any diversion of road user
taxes . . . ?” (emphasis omitted)); id. at 4 (expressly referring to the Hayden-
Cartwright Amendment); Saban Rent-A-Car LLC v. Ariz. Dep’t of Revenue,
244 Ariz. 293, 299 ¶ 14 (App. 2018) (stating the anti-diversion clause “was
enacted in response to federal legislation that conditioned grants of federal
highway funds on a state’s assurance that revenue ‘from State motor vehicle
registration fees, licenses, gasoline taxes, and other special taxes on motor-
vehicle owners and operators of all kinds’ would be used exclusively for
highway purposes” (quoting Hayden-Cartwright Amendment § 12)). In
that way, the Hayden-Cartwright Amendment provides definition for the
subsequent state constitutional provision.
¶51 Therefore, viewed in this proper context, a tax is “relating to”
if it is specially directed at the operation or use of vehicles on public
highways. Similarly, the broad terms “use” and “operation” are directed
toward the ultimate activity. Again, the text evinces no intent to elevate
20
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
form over substance—if the vehicles are used or operated on public
highways, then any fee or tax specially directed toward that use implicates
the anti-diversion clause.
¶52 That leaves the question of whether the car rental surcharge
is such a fee or tax. Once again, we do not need to travel beyond the
statutory language itself, for it furnishes the plain answer. A.R.S. § 5-839(C)
states in relevant part:
The surcharge applies to the business of leasing or
renting . . . motor vehicles for hire without a driver, that are
designed to operate on the streets and highways of this state . . . .
(Emphasis added.) The italicized language essentially parallels the
wording of the anti-diversion clause. The surcharge’s plain language
illustrates that it only applies when someone rents a “motor vehicle[] . . .
without a driver, . . . designed to operate on the streets and highways of this
state”; as such, the taxable event is that the renter of the motor vehicle will
be driving it on the public roads.
¶53 A straight line can be drawn from the Hayden-Cartwright
Amendment to the anti-diversion clause to the statute before us. The
“limiting principle” that the majority searches for at great length is supplied
by the relevant text of these provisions. The surcharge is a special tax
directed toward the use or operation of vehicles on public roads, and the
revenues it generates must be allocated to public roads.
¶54 When the relevant constitutional and statutory language
resolves the dispute, as it does here, it is with great hazard that we stray
beyond it. State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588, 604 ¶ 67
(2017) (Bolick, J., concurring in part and in the result) (“We look first to the
language of the provision, for if the constitutional language is clear, judicial
construction is neither required nor proper.” (quoting Perini Land & Dev.
Co. v. Pima County, 170 Ariz. 380, 383 (1992))); accord, e.g., State v.
Winegardner, 243 Ariz. 482, 489 ¶ 29 (2018) (Lopez, J., dissenting in part and
concurring in the result) (“In doing so, we glossed over the Rule’s plain
language to find a much narrower meaning in its legislative history. But
our decisions repeatedly emphasize that we should apply plain meaning
before resorting to secondary interpretation methods such as legislative
history.”); Butler Law Firm, PLC v. Higgins, 243 Ariz. 456, 459 ¶ 7 (2018);
Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437, 449 ¶ 45 (2018) (Timmer, J.,
21
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
dissenting in part and concurring in part); State v. Holle, 240 Ariz. 300, 302
¶ 11 (2016).
¶55 The trial court employed a similar analysis and reached the
correct result, holding that “the class of taxable transactions is defined by
the relationship of those transactions to the rental of cars. That the
[surcharge] relates to the use of vehicles on the public highways or streets
is plain. Its receipts may therefore be applied only to one or more of the
purposes set down by the Constitution. The construction and maintenance
of athletic facilities [are] not among those purposes.”
¶56 Although we need (and should) not go beyond constitutional
and statutory text in resolving this case, this analysis, unsurprisingly, also
accords with the drafters’ stated intent. As the majority observes, the
amendment’s drafters admonished that the enactment would not alter the
then-current tax system. Supra ¶ 31. This reading is consistent with that
stated intent: general taxes that affected motor vehicles among other goods
or services would be unaffected, while taxes and fees directly applied to
motor vehicles or their use or operation would be subject to the
amendment’s constraints.
¶57 The majority creates an exception to the anti-diversion clause
that defeats both its language and intent. That the surcharge is assessed not
directly on individuals but on businesses, who pass it on to consumers, is
irrelevant in a constitutional provision that focuses on use and operation of
motor vehicles on public highways. Cf. Maryland v. Louisiana, 451 U.S. 725,
737 (1981) (concluding that consumers had standing because “the Special
Master proper[l]y determined that ‘although the tax is collected from the
pipelines, it is really a burden on consumers’”). More importantly, whether
the tax is borne by the owners (the rental car companies) or the operators
(vehicle renters) makes no difference from the perspective of effectuating
the requirements of the Hayden-Cartwright Amendment, which expressly
encompasses both.
¶58 Even so, clearly it is the vehicle renters, as vehicle operators,
and not the rental car companies that are the ultimate object of the
surcharge, as the arguments in favor of adoption of the surcharge in the
voter pamphlet repeatedly emphasized. See, e.g., Ariz. Sec’y of State, 2000
Publicity Pamphlet Sample Ballot for the Tourism & Sports Authority 10
(2000) [hereinafter 2000 Publicity Pamphlet],
https://ia601408.us.archive.org/31/items/PubPamp2000_201902/
22
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
Pub%20Pamp%202000.pdf (“The tax burden will fall primarily on visitors
to the County.”); id. at 12 (“[V]isitors to the region, through a modest
increase in the cost of hotel and rental car use, will absorb a large portion of
the cost . . . .”); id. at 14 (“Finally, the financing created by this proposition
will be born[e] almost entirely by the out of state visitors.”); id. at 16 (“But
the best part of the proposal is that it will cost Arizona residents next to
nothing. As much as 95% of the new hotel and car rental taxes will be borne
by visitors to our state.”); id. at 17 (“All of these benefits to our communities
can be provided with the passage of Proposition 302 without increasing
taxes paid by local residents, and without negatively impacting the car rental
and hotel industries.” (emphasis added)). The prescient forecast by those in
favor of shifting the burden of paying for AzSTA tourism projects to rental
car users themselves played out exactly as planned, as the trial court found,
which shows precisely why the surcharge violates the anti-diversion clause.
See supra ¶ 3 (noting the rental car companies pass the surcharge on to the
vehicle renters). The surcharge is imposed on rental car users for their road
use; thus, its revenues must be earmarked for road use projects only.
Because they are not, the surcharge violates the anti-diversion clause.
¶59 The Court has created a loophole that allows the legislature
and those seeking its favor to divert funding from highways to other
purposes, without the pesky inconvenience of constitutional amendment.
For the foregoing reasons, and with great respect to my colleagues, I dissent
on this issue.
Dormant Commerce Clause
¶60 I agree with my colleagues that the statute does not violate
the “dormant” Commerce Clause, as presently construed by the U.S.
Supreme Court.2 However, I find in the record more evidence than my
colleagues of an intent to place the predominant economic burden of this
2 The Commerce Clause effectuated one of the major purposes of our
federal constitution, which was to prevent parochial trade barriers erected
by states favoring their own domestic industries, thereby ensuring to all the
abundant benefits of free trade. Hughes v. Oklahoma, 441 U.S. 322, 325–26
(1979). It did so by vesting in Congress, rather than the states, the power to
regulate interstate commerce. This application of the Commerce Clause is
far from dormant, as wine-lovers, among others, can attest. Granholm v.
Heald, 544 U.S. 460 (2005).
23
SABAN et al. v. ADOR et al.
JUSTICE BOLICK, Concurring in Part and Dissenting in Part
tax on out-of-state consumers, who after all are much more likely to rent
cars in Arizona for non-replacement purposes (for which more-favorable
terms apply on the statute’s face) than Arizona residents.3 And, pertinent
to the political equation here, out-of-state visitors are unable to vote to
protect their economic interests, so they represent an appealing revenue
source.
¶61 “[A] tax may violate the Commerce Clause if it is facially
discriminatory, has a discriminatory intent, or has the effect of unduly
burdening interstate commerce.” Amerada Hess Corp. v. Dir., Div. of
Taxation, 490 U.S. 66, 75 (1989). In Commonwealth Edison Co. v. Montana, the
Court rejected a Commerce Clause claim against a facially
nondiscriminatory tax that disproportionately burdened out-of-state
businesses as the Court reasoned the tax was related to activities and
benefits taking place inside the state. 453 U.S. 609, 618–29 (1981). By
contrast, in Camps Newfound/Owatonna, Inc. v. Town of Harrison, the Court
struck down a differential tax burden that “penalize[d] the principally
nonresident customers of businesses catering to a primarily interstate
market.” 520 U.S. 564, 576 (1997).
¶62 As a result, this question is very close. Plaintiffs have argued
this case as one of discriminatory intent, and indeed the statute is facially
nondiscriminatory and has been applied in a nondiscriminatory way. The
U.S. Supreme Court has not invalidated state policies solely on the basis of
discriminatory intent. But cf. S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d
583, 593–96 (8th Cir. 2003) (invalidating a constitutional amendment on the
basis of “discriminatory purpose”). Given the Supreme Court’s conflicting
precedents and that it has not yet provided significant guidance on how to
treat a Commerce Clause claim based on discriminatory intent, I join the
majority in denying relief on that claim.
3 One quote from the publicity pamphlet in particular sums it up with
admirable candor: “[T]he best part of the proposal is that it will cost Arizona
residents next to nothing. As much as 95% of the new hotel and car rental
taxes will be borne by visitors to our state.” 2000 Publicity Pamphlet, supra,
at 16; see also supra ¶ 58 (collecting quotes evincing discriminatory intent).
24