Jennings v. Woods , 194 Ariz. 314 ( 1999 )

MARTONE, Justice,

dissenting.

¶ 93 Today’s decision, though initially plausible, upon closer examination finds no support in our constitution, cases, or statutes. The majority rejects controlling precedent that has stood as the authoritative interpretation of A.R.S. § 40-101¹ for eighty-five years and adopts a contrary interpretation that ousts an official duly elected by the people.

I.

¶ 94 This case is directly controlled by State ex rel. Bullard v. Jones, 15 Ariz. 215, 137 P. 544 (1914). Although the majority attempts to distinguish this dispositive precedent, its effort cannot withstand analysis.

¶ 95 Here is what happened in Jones. Jones was a corporation commissioner. He was also a shareholder, director, and officer of insurance companies, some of which the corporation commission wanted to audit. Jones disqualified himself from the case. Not satisfied, Bullard, the Attorney General, brought a quo warranto action against Jones seeking his removal from office under section 7, chapter 90, Laws of 1912, the predecessor to A.R.S. § 40-101. The complaint alleged that the insurance companies were “subject in whole or in part to regulation by the corporation commission,” within the meaning of the statute. 15 Ariz. at 219, 137 P. at 546. In order to understand the meaning of section 7 of chapter 90, we said “it is essential that it be read in connection with all the other provisions of chapter 90.” Id. at 223, 137 P. at 548. Chapter 90 related to public service corporations, and we specifically looked at section 31, which vested the corporation commission with the power to regulate public service corporations. Id. at 224-25, 137 P. at 548.

¶ 96 The Attorney General argued that section 7 “should have a literal interpretation, without regard to its relation to other parts of chapter 90.” Id. at 225, 137 P. at 548. This is the same argument that the majority adopts here. To this we said:

It is too clear for question that chapter 90 in general purport, meaning, and effect has for its object “public service corporations” and their regulation. Neither in the title of the chapter nor in its body is intimation made that its provisions should reach or affect the regulation of private corporations other than public utilities. That being true, is not the inhibition against a commissioner owning stock or bonds or being interested pecuniarily or as employee or otherwise in a “corporation” confined to “public service corporations”? That is, corporations of which the commission is given “power and jurisdiction to supervise and regulate,” as provided in section 31, swpra.

Id.

¶ 97 Jones owned stock in the insurance companies and was an employee and officer of the insurance holding company. Although the holding company was “subject to regulation by the corporation commission,” id. at 228, 137 P. at 549, we held that the company was “not a ‘public service corporation’ and does not fall within the purview of either the title or the body of chapter 90, and therefore he is not subject to the penalty therein prescribed for one owning stock of a public service corporation.” Id. at 226, 137 P. at 548.

¶ 98 This is the holding of the Jones ease. Section 7 did not apply because it only applies to public service corporations. We went on to give reasons for our holding.

¶ 99 We looked at the constitution. The entirety of Article XV of the constitution applies to the corporation commission. Virtually all of Article XV relates to public service corporations. We noted that Article XV “expressly confers jurisdiction upon the corporation commission to supervise and regulate public service corporations, but its plenary power in that respect is not extended by that instrument to corporations other than public utilities.” 15 Ariz. at 226, 137 P. at 548. This was not to say, however, that the constitution only authorized the corporation commission to regulate public service corporations. We acknowledged that in Article XIV, relating to corporations other than municipal corporations, private corporations had to file their articles of incorporation with the corporation commission, Ariz. Const. art. XIV, § 8, and pay fees and make reports to the corporation commission, Ariz. Const. art. XIV, § 17. But we said,

[t]hese two sections of the Constitution do not empower the corporation commission to regulate “in whole or in part” the corporations mentioned therein.

Jones, 15 Ariz. at 226, 137 P. at 549.

¶ 100 We then went on to note that while Article XV, Section 4, authorizes the corporation commission to inspect the books of corporations that are not public service corporations, “[t]he power ‘to inspect and investigate’ the business of a corporation does not make it ‘subject in whole or in part to regulation by the commission.’ ” Id.

¶ 101 Finally, we noted that Article XIV, Section 16, subjects the books of corporations to “ ‘the full visitorial and inquisitorial powers of the state.’ ” Id. We noted that this provision is not self-executing and that the power is not conferred on any particular body, certainly not the corporation commission. Id. at 226-27, 137 P. at 549. We then noted four pieces of legislation that would implement Article XIV, Section 16, and Article XV, Section 4:(1) the regulation and supervision by the corporation commission of co-operating companies; (2) Blue Sky Law regulation and supervision of investment companies by the corporation commission; (3) the regulation of surety companies; and, (4) the supervision and regulation of insurance companies by the corporation commission. Id. at 227, 137 P. at 549.

¶ 102 Jones thus owned stock in an insurance company subject to regulation by the corporation commission. The legislation authorizing the corporation commission to regulate the insurance industry specifically prohibited that. Here is what we said:

The legislature evidently took the view that section 7 of chapter 90 had no application to a state of facts as here appear for in section 1, chapter 94 [insurance statute], supra, it prohibited the commissioners and their employees from being interested in any insurance company, except as a policyholder.

Id. at 228, 137 P. at 549.

¶ 103 We thus specifically held that the presence of a conflict of interest section in the insurance statute showed that the legislature understood that section 7, chapter 90 did not apply. Had it applied to anything other than public service corporations, there would have been no need to put a conflict of interest section in the insurance statute.

¶ 104 In addition, had section 7 applied, the ownership of insurance policies, permitted by the insurance statute, would have been barred. If the legislature had intended section 7 to apply, it would not have enacted an inconsistent provision in the insurance statute.

¶ 105 We then said that although Jones was violating the conflict of interest section of the insurance statute,

[t]he penalty prescribed in section 7 of chapter 90, as we have seen, does not apply, for by its terms it is restricted to a prohibition of commissioners being interested in public service corporations “subject to regulation in whole or in part by the commission.”

Id. (emphasis added).

¶ 106 Because section 7 of chapter 90 did not apply, and because the insurance conflict of interest section did not contain a forfeiture of office penalty provision, we dismissed the quo warranto action and Jones was not removed from office.

II.

¶ 107 It is apparent that Jones is dispositive of this case. But how does the majority avoid this result? One must read Jones to appreciate the extent to which the majority has been unfaithful to it. The majority says that three factors explain Jones. Ante, at ¶48. First, the majority says that it mattered that Jones owned his insurance stock and took office before the legislature subjected insurance companies to regulation by the commission. Id. But there is nothing in Jones to suggest, let alone state, that this mattered to the court. Indeed, we applied the insurance conflict of interest statute to Jones even though he purchased his stock before the statute was enacted.

¶ 108 Second, the majority argues that the existence of a separate conflict of interest section in the insurance statute controlled the outcome in Jones. Ante, at ¶ 50. But in Jones we recognized that the provision of a conflict of interest section in the insurance statute was evidence that the legislature knew that section 7 of chapter 90 did not apply because an insurance company was not a public service corporation. 15 Ariz. at 228, 137 P. at 549.

¶ 109 Third, the majority argues that the legislature enacted a specific insurance conflict of interest provision because it believed that section 7 would otherwise apply to prevent a commissioner from owning an insurance policy. Ante, at ¶52. But this is directly contrary to what we said in Jones: “The legislature evidently took the view that section 7 of chapter 90 had no application to a state of facts as here appear, for in section 1, chapter 94, supra, it prohibited the commissioners and their employees from being interested in any insurance company, except as a policy-holder.” 15 Ariz. at 228, 137 P. at 549 (emphasis added). If the legislature believed that section 7 otherwise applied, all it had to do was to expressly allow commissioners to own insurance policies. But it did far more than that. Because it knew that section 7 did not apply at all, it adopted a completely separate conflict of interest section.

¶ 110 What the majority characterizes as the three factors that explain Jones, ante, at ¶ 53, are nowhere stated as the grounds for the court’s decision. Indeed, here is what the contemporaneous reporter of decisions said:

Held, that the inhibition of section 7 against a commissioner owning stock or bonds or being interested pecuniarily in a corporation relates only to public service corporations, which the commission is given power to supervise and regulate; and hence the ownership of stock in a holding corporation holding all the stock of two insurance companies did not disqualify a commissioner or render his office vacant. 15 Ariz. at 216-17, 137 P. at 544. The reporter’s notes, of course, are not part of the court’s opinion, but it is comforting to know that the reporter’s contemporaneous reading of the opinion is consistent with its plain words.

¶ 111 The majority argues that because Jones used the language of section 7 and insurance companies together, that this meant that section 7 was not limited to public service corporations. Ante, at ¶¶ 54-55. But the inquiry starts with “regulation,” it does not end there. In Jones, we specifically acknowledged four instances in which the legislature extended the regulatory power of the commission beyond public service corporations. We expressly acknowledged that it extended the regulatory power to investment companies (Blue Sky laws). But we held that was not sufficient to come within the scope of section 7 of chapter 90 because section 7 applies only to the regulation of public service corporations. In short, commission regulation is a necessary but not a sufficient condition for the application of section 7. For section 7 to apply, the object of that regulation must be a public service corporation.

¶ 112 Contrary to the majority’s statement, ante, at ¶¶ 56-57, our detailed analysis did not alter our central holding in Jones. After examining other areas “regulated” by the commission, we restated our holding that section 7 was “restricted to a prohibition of commissioners being interested in public service corporations.” Id. at 228, 137 P. at 549.

¶ 113 The majority says that because not all provisions of chapter 90 were capable of limitation to public service corporations, then neither is section 7. Ante, at ¶ 80. But this ignores the fact that the other provisions of chapter 90 which we considered in Jones, 15 Ariz. at 224, 137 P. at 548, related only to the organization of the commission and not to its regulatory power. In contrast, section 7 relates to the regulatory power expressly vested in section 31. Contrary to the majority’s assertion, ante, at ¶ 77, it is not the physical placement of section 40-101 in the codification that matters as much as the fact that section 7 was enacted as part of chapter 90 of the Laws of 1912.

¶ 114 One need only look at the Session Laws of 1912 to see that section 7 is part of chapter 90, the Public Service Corporation Act. The majority reads section 7 out of context. Nowhere in chapter 90 are securities mentioned. To apply section 7 in a vacuum without regard to the chapter of which it is an integral part is unsound legislative analysis.

¶ 115 I shall not belabor the point more than I already have. Jones cannot be distinguished in any material way. The majority has simply overruled Jones without acknowledging it has done so.

III.

¶ 116 Let us turn to the majority’s treatment of the language of section 40-101. Ante, at ¶¶ 26-44. The critical language is: “A person in the employ of, or holding an official relation to a corporation or person subject to regulation by the commission....”

¶ 117 First, the majority says that “person” includes a natural person. Ante, at ¶¶ 28-30. Indeed, section 2(d) of chapter 90 expressly defined “person” to include “an individual, a firm, and a co-partnership.” But, the majority’s argument is not relevant. The important issue, one which the majority fails to address, is that a natural person can be a public service corporation. Note the words “relation to a corporation or person subject to regulation by the commission” in section 40-101. The use of the word “person” does not mean that the statute applies to entities other than public service corporations, for we have specifically held that the definition of public service corporation under Article XV, Section 2 of the constitution “is also applicable to individuals.” Williams v. Pipe Trades Indus. Program of Ariz., 100 Ariz. 14, 16, 409 P.2d 720, 722 (1966).

¶ 118 Second, the majority says that because West was licensed to a registered securities dealer, he was a person in the employ of, or holding an official relation to a corporation or a person within the meaning of the statute. Ante, at ¶¶ 31-32. But this flatly contradicts our holding in Jones in which we specifically held that not all regulation by the commission subjects one to the scope of section 40-101. We said “it is restricted to a prohibition of commissioners being interested in public service corporations ‘subject to regulation in whole or in part by the commission.’ ” 15 Ariz. at 228, 137 P. at 549. The majority does not explain how a securities dealer becomes a public service corporation. The majority just quotes the language of section 7, juxtaposes it against language not in the statute (“licensed by the Commission”) and creates a new statute. Ante, at ¶ 31.

¶ 119 Third, the majority examines the word “regulation” as though it were interpreting it anew. Ante, at ¶ 33. Instead of turning to Black’s Law Dictionary and Webster’s Collegiate Dictionary, the court should have turned to State v. Jones, where we gave this specific statutory language an authoritative judicial interpretation. As noted above, we looked at each source of constitutional authority for the commission’s power to regulate and concluded that none of them empower the corporation commission to “regulate” anything other than public service corporations. Jones, 15 Ariz. at 226, 137 P. at 548-49. We then acknowledged that the legislature had indeed granted the corporation commission the power to regulate nonpublic service corporations (co-operating companies, investment companies, surety companies and insurance companies), but concluded that regulation alone was not a sufficient condition for the applicability of section 7 of chapter 90. Only the regulation of public service corporations comes within the scope of section 7. Id. at 228, 137 P. at 549.

IV.

¶ 120 The majority concludes that the purpose of the statute is advanced by including licensed securities salespersons within its scope. Ante, at ¶¶ 65-76. The majority claims that unless we do that, West could function as a commissioner without ever being required to surrender his license. The court says this raises the specter of a conflict. But each member of this court holds a license to practice law and yet we regulate the practice of law. The Board of Medical Examiners consists of persons licensed to practice medicine, indeed who do practice medicine, and yet it regulates the practice of medicine. A.R.S. §§ 32-1402(A), 32-1403(A). A license qualifies one for the job — it is not the basis for wholesale disqualification.

¶ 121 The majority argues that unless section 40-101 applies, West would be allowed to function as a commissioner even when a conflict of interest arose. Ante, at ¶ 67. In saying this, the majority fails to consider A.R.S. § 38-503,² which is a general conflict of interest provision fully applicable to the members of the corporation commission. Under A.R.S. § 38-503(B), West would have to disqualify himself from sitting on any case involving his own firm’s securities dealings. And, although the majority would like to ignore this statute, ante, at ¶ 71, it would operate to prevent the majority’s parade of horribles. The majority’s concern over action by a two-member commission, ante, at ¶ 70, neglects A.R.S. § 44-1973 which allows the commission to act with fewer than all its members. And, any deadlock would result in review de novo in the superior court under A.R.S. § 44-1981, or by way of special action.

¶ 122 The majority indulges in proclamations about “ethics in government” and “the core of representative government.” Ante, at ¶ 4. No one could disagree that ethics in government is critical but reliance on such phrases does not advance the inquiry as to whether securities salespersons are within the scope of the section. They are not. If, after eighty-five years of not including them, the legislature would like to include them, it is free to do so.

¶ 123 It is difficult to measure the damage caused by today’s decision. At a minimum, by taking section 40-101 out of context, persons who own shares of or have a pecuniary interest in any securities company will now be ineligible to serve as a corporation commissioner. If owning an insurance policy is having a pecuniary interest in an insurance company, then owning shares in a money market fund issued by Merrill Lynch is having a pecuniary interest in a securities company.³ Thus, one who has an individual retirement account at a securities company, perhaps with an interest in the securities company’s money market fund, would be ineligible to serve as a commissioner. This could even include the other two members of the corporation commission.

¶ 124 The majority claims to exclude from its decision shares in unregulated corporations. Ante, at ¶ 74. But after today’s decision, what is an unregulated corporation? Until today, we knew with certainty that all corporations except for public service corporations were not within the scope of section 40-101. But given the majority’s broad definition of “regulation,” I fear we have not seen the last of this.

V.

¶ 125 Jones ’ limitation of section 40-101 to only public service corporations is supported by Arizona’s constitutional history and sound reason. Two of the three justices of the court that decided Jones had served as members of the Arizona Constitutional Convention only two years earlier. They were keenly aware of the debates over the commission’s power to regulate only public service corporations. And defendant F.A. Jones himself was not only a member of the convention, but also of the convention’s public service corporation committee. The Records of the Arizona Constitutional Convention of 1910, at 22, 1389, 1390, 1392 (John S. Goff ed.) (hereinafter Records). Thus, our decision in Jones was no fluke. These judges had personal knowledge of the constitutional history that drove their decision.

¶ 126 One cannot read Article XV of the Arizona Constitution and not come to the conclusion that the regulation of public service corporations is that which separates the corporation commission from all other public bodies. Article XV, Section 1 creates the commission. Section 2 defines public service corporations, and, as noted, this includes individuals. Williams v. Pipe Trades Indus. Program of Ariz., 100 Ariz. 14, 16, 409 P.2d 720, 722 (1966). Section 3 empowers the corporation commission to regulate public service corporations. The rest of Article XV relates to public service corporations except for Section 4, which contains a limited power to inspect and investigate non-public service corporations, and Section 5, which empowers the commission to issue certificates of incorporation and licenses. We held in Jones that Section 4 does not make non-public service corporations subject to regulation by the commission. 15 Ariz. at 226, 137 P. at 549. Instead, we said that implementing legislation was necessary. Id. at 227, 137 P. at 549. And, we have held that the legislative power to enlarge the powers of the corporation commission under Article XV, Section 6, is limited to matters over which the constitution has already granted jurisdiction to the corporation commission and other matters of the same class. Menderson v. City of Phoenix, 51 Ariz. 280, 285, 76 P.2d 321, 323 (1938). Indeed, we have noted that the commission’s authority to regulate the offer and sale of securities comes not from the constitution, but from the legislature. Commercial Life Ins. Co. v. Wright, 64 Ariz. 129, 140, 166 P.2d 943, 950 (1946). The same was true with respect to insurance companies. Johnson v. Betts, 21 Ariz. 365, 370, 188 P. 271, 273 (1920).

¶ 127 In sum, the corporation commission’s power to regulate public service corporations arises directly from the constitution. Its power to regulate anything else arises from statutes. One need only look at the proceedings before the Constitutional Convention to see that the regulation of public service corporations was to be the commission’s main responsibility. Authorizing the corporation commission to regulate public service corporations was not disputed. But the delegates argued over whether private corporations should be regulated by the corporation commission. See Records, supra, at 613-15, 722-24. They settled on massive, constitutionally-based regulation of public service corporations, but only limited, statutorily-based regulation of private corporations. See id.; see also Jones, 15 Ariz. at 226, 137 P. at 548-49; Arizona Corp. Comm’n v. State ex rel. Woods, 171 Ariz. 286, 830 P.2d 807 (1992).

¶ 128 This constitutional distinction has its roots in substance. The commission’s regulation of a public service corporation is unique. It sets rates and evaluates a fair rate of return. Public service corporations are infected with the public interest and thus the public gets to regulate them in a profound way. This is very different from the sort of regulation contained in the state securities law.

¶ 129 It thus made eminent good sense for this court to have acknowledged that the legislature limited the operation of section 40-101 to public service corporations. Because the regulation was so vast and so continuing, disqualification from office made sense. But as to private corporations, including investment companies and securities dealers, regulation is quite ordinary and could have been vested by the legislature in some other branch of government. Thus the ordinary conflict of interest provisions of A.R.S. § 38-503 are adequate. One would not be disqualified from serving on the commission, but one would simply disqualify oneself from a particular case. The majority’s decision ignores this important distinction and upsets a longstanding legislative policy choice.

VI.

¶ 130 For eighty-five years, public institutions and persons have relied on Jones. Indeed, as the record makes clear, the corporation commission has consistently advised its employees and commissioners that the draconian scope of A.R.S. § 40-101 is limited to public service corporations. See West’s app. at 3, 4, 5, 6. For example, the corporation commission’s form for new employees entitled “Prohibited Ownership,” stated:

I have read ARS § 40-101 which prohibits the ownership of stocks and bonds in public service corporations (utilities) regulated by the Commission.

App. A, attached. Jennings himself signed this form, attesting that he was not violating A.R.S. § 40-101. Id.

¶ 131 West and others have relied upon our opinion in Jones and the corporation commission’s representations. West ran for public office and won. And it was not until then that his opponent raised this issue. I would not overrule a case that has for eighty-five years given the statute an authoritative interpretation. Because it is so plainly unjust to remove an elected official under these circumstances, I respectfully dissent.

CONCURRING: RUTH V. McGREGOR, Justice.

APPENDIX A

PROHIBITED OWNERSHIP

I have read ARS 40-101 which prohibits the ownership of stocks and bonds in public service corporations (utilities) regulated by the Commission. I have also read the Memorandum to all Arizona Corporation Commission Employees dated April 27, 1989 which explains the application of ARS 40-101 to employees and their spouses.

APPENDIX A — Continued

NO OWNERSHIP

I (or my spouse) do not own any stocks or bonds in public service corporations (utilities) regulated by the Arizona Corporation Commission.

Renz D. Jennings EMPLOYEE SIGNATURE

July 7,1989 DATE

OWNERSHIP

I (or my spouse) own stocks or bonds in a public service corporation (utility) regulated by the Arizona Corporation Commission and I will divest my ownership according to a schedule agreed to between myself and _representing the Commission.

EMPLOYEE SIGNATURE

DATE

1 . Section 40-101 is the codification of a conflict of interest provision originally enacted as section 7, chapter 90, Laws of 1912. Although I use "section 7, chapter 90” in historical context, they are interchangeable.

2 . Section 38-503(B) provides:

Any public officer or employee who has, or whose relative has, a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision.

3 . The majority’s acknowledgment that the pecuniarily interested language prohibits ownership of an insurance policy, ante, at ¶¶ 50-52, does not square with its attempt to limit pecuniary interest to an equily or ownership interest in a regulated entity. Ante, at ¶ 75. In all events, one who owns shares in a securities company’s own money market fund or mutual fund has an equity or ownership interest in a regulated entity.