Slayton v. Shumway ( 1990 )

OPINION

FELDMAN, Vice Chief Justice.

This is an appeal from a judgment dismissing a suit brought by Dan Richmond Slayton (Slayton) to enjoin Jim Shumway, the Secretary of State (Shumway), from certifying and printing an initiative measure on the official ballot. The initiative is designated as Proposition 104, a proposed constitutional amendment popularly known as the Victims’ Rights Initiative.

We have jurisdiction for this direct appeal under article 6, § 5(1) of the Arizona Constitution and A.R.S. § 19-122(C).

FACTS

On August 29, 1990, Slayton filed suit in the Maricopa County Superior Court seeking declarative and injunctive relief “prohibiting [Shumway] from certifying and printing on the official ballot for the [November] general election the proposed constitutional amendment” known as Proposition 104. Complaint, para. VII. Slayton alleged standing to bring the action as a citizen of the state and registered voter.

A motion to intervene was filed by the Victims’ Bill of Rights Task Force and its chairperson, Donna Pickering (collectively the Task Force). The Task Force alleged it was a “campaign committee” that had worked to get Proposition 104 on the ballot and was working for its passage. On stipulation, the court allowed intervention.

There is only one issue before us. Slay-ton argues that Proposition 104 violates the single subject rule of the Arizona Constitution, which provides that:

If more than one proposed [constitutional] amendment shall be submitted in any election, such proposed amendment shall be submitted in such a manner that the electors may vote for or against each proposed amendment separately.

Ariz. Const, art. 21, § 1.

The proposed initiative measure would amend the Arizona Constitution by including a victims’ bill of rights.¹ The operative portion, article 2, § 2.1(A), contains eleven subsections. Subsections 1 through 10 enumerate certain procedural protections to, and rights of, those who are victims of crime. Eight of these are similar to the protections and rights already contained in our Rules of Criminal Procedure. See Rule 39, Ariz.R.Crim.P., 17 A.R.S. Slayton acknowledges that the first ten subsections are so interrelated that together they form a single subject “properly presented to the voters in the single package of Proposition 104.” Appellant’s Opening Brief at 3.

Slayton argues, however, that subsection 11, which deals with the rulemaking authority, is not sufficiently related to the first ten subsections and therefore violates the single subject rule. Slayton contends that, unlike the first ten subsections, subsection 11 addresses neither the substantive nor procedural rights of victims. Instead, “without warning,” it transfers the ultimate authority over “ ‘all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings’ from the Arizona Supreme Court to the Arizona state legislature.” Id. at 3 (quoting Proposition 104, subsection 11) (emphasis Slayton’s). Pointing out that article 6, § 5(5) of the Arizona Constitution presently gives this court exclusive authority to enact procedural rules, Slayton argues that the rulemaking provision in Proposition 104 is “radically different” from the provisions giving victims procedural rights and protections, thus violating article 21, § 1.

Advancing these same contentions in the trial court, Slayton moved for summary judgment on the complaint. The Task Force filed a motion for judgment on the pleadings. See Rule 12(c), Ariz.R.Civ.P., 16 A.R.S. Expediting its decision, on September 11, 1990 the trial court granted the Task Force’s motion, denied Slayton’s, and entered a judgment dismissing the complaint. Slayton appealed, we ordered expedited briefing, and, following oral argument, entered an order on September 20, 1990 that “the judgment of the Maricopa County Superior Court is affirmed. An opinion will follow.” This is that opinion.

DISCUSSION

The Arizona Constitution presently gives this court exclusive and broad procedural rulemaking authority in all cases, criminal and civil. The words used are as follows:

§ 5. Supreme court; jurisdiction; writs; rules; habeas corpus The Supreme Court shall have: ******

5. Power to make rules relative to all procedural matters in any court.

Ariz. Const, art. 6, § 5(5). The rulemaking power is exclusive. See State ex rel. Collins v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984). It includes formulation of evidentiary rules. Barsema v. Susong, 156 Ariz. 309, 751 P.2d 969 (1988).

Section 2.1(A)(11) of the proposed amendment would change the existing regime by providing that

a victim of crime has a right:

******

11. to have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims’ rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.

The language, of course, is both broad (“all rules governing criminal procedure and the admissibility of evidence”) and somewhat unclear in failing to specify or limit the extent of the transfer of rulemaking power. Slayton reads the provision broadly, as giving the legislature the right to amend or repeal all procedural and evidentiary rules in all criminal cases.

Starting from that broad interpretation, Slayton contends that the effect of subsection 11 is to transfer the ultimate rulemaking authority in criminal cases from this court to the legislature. This, Slayton argues, goes far beyond the procedural rights of victims enumerated in subsections 1 through 10 and completely changes the allocation of rulemaking authority, including the great majority of matters that do not deal with victims’ rights.

The transfer of ultimate rulemaking authority in all criminal proceedings from the court to the legislature is indeed a radical departure from our practice. See Conway v. Superior Court, 60 Ariz. 69, 131 P.2d 983 (1942)² (court had inherent rulemaking authority prior to explicit grant in constitution), and the explicit provisions of the so-called Model Courts Amendment of 1960, adopting article 6, § 5(5) of the Arizona Constitution. If Slayton’s proposed interpretation is correct, then it must be conceded that subsection 11, which would transfer rulemaking authority for matters that have nothing to do with victims’ rights, is much broader than and quite dissimilar to subsections 1 through 10.

Our previous cases have adopted a single subject rule that prevents the “pernicious practice of ‘log-rolling’ ” whereby dissimilar provisions are combined in a single proposition “so that voters must vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.” Tilson v. Mofford, 153 Ariz. 468, 471, 737 P.2d 1367, 1370 (1987) (quoting Kerby v. Luhrs, 44 Ariz. 208, 214, 36 P.2d 549, 551 (1934)).

The single subject rule has important substantive purposes. It prevents two minority groups from combining different proposals — and thus their votes — to obtain a majority in favor of the joint proposal when neither standing alone could achieve such a majority. See Kerby, 44 Ariz. at 214, 36 P.2d at 552; Ruud, No Law Shall Embrace More Than One Subject, 42 MINN.L.REV. 389, 391 (1958). The rule further prevents those who propose initiatives from confusing or deceiving the voters by inserting unrelated provisions in an initiative proposal and “hiding them” from the voters. See California Trial Lawyers Ass’n, Inc. v. March Fong Eu, 200 Cal.App.3d 351, 358-362, 245 Cal.Rptr. 916, 920-22 (1988) (single subject rule violated by inserting two brief paragraphs addressing campaign contributions and conflicts of interest in the middle of a 120-page initiative proposal pertaining to tort reform).

In Kerby, we invoked the provisions of article 21, § 1 to enjoin the submission of an amendment that proposed formulae for the taxation of copper mines and public utility corporations, and also proposed the establishment of a tax commission as a constitutional body. Noting that the facially unrelated provisions of the amendment were connected only by virtue of embracing the broad, general subject matter of taxation, we stated the following test for the single subject rule:

Taking into consideration all of the cases cited, it is apparent to us that they agree in substance upon the principle to be used as a test [for violation of the single subject rule], but differ widely as to the result reached in its application to particular cases. We think that principle, as explained by the cases from which we have quoted, may be restated as follows:

If the different changes contained in the proposed amendments all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voters supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed constitutional amendments fall within the constitutional prohibition [of article 21, § !]•

Kerby, 44 Ariz. at 221, 36 P.2d at 554 (emphasis added).

We are aware that other states have evolved less restrictive formulations. See, e.g., Brosnahan v. Brown, 32 Cal.3d 236, 253, 651 P.2d 274, 284, 186 Cal.Rptr. 30, 40 (1982) (adopting a “liberal interpretive tradition ... of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose”). In Coalition for Political Honesty v. State Board of Elections, 83 Ill.2d 236, 47 Ill.Dec. 363, 415 N.E.2d 368 (I;;.1981), the Illinois Supreme Court adopted a “reasonable, workable relationship” test, rejecting a proposed application of Kerby’s requirement that voters favoring one provision would reasonably be expected to favor the principle of the others. The court based its reasoning in part on its view that Kerby was later qualified by State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447 (1953).

We believe the Illinois court misinterpreted Lockhart. As Justice Ryan correctly pointed out in his dissent from the Illinois opinion,³ Lockhart approves the portion of Kerby quoted above. Coalition, 47 Ill.Dec. at 382, 415 N.E.2d at 387 (Ryan, J., dissenting) (quoting Lockhart, 76 Ariz. at 396, 265 P.2d at 451). In holding that a proposal to change the constitutional provisions pertaining to the number of senators representing each county in the state could be combined with a proposal to change representation and apportionment in the house of representatives, Lockhart held that the two provisions

relate to, and are germane to, one general subject, i.e., the composition of state legislature, and historically the people of this state have considered that but one subject was involved, to wit: ‘The Legislature,’ albeit that legislature is bicameral. We cannot say that the people of this state in dealing with this subject for the past forty years have erred and acted unreasonably in treating their legislature as a single subject in constitutional amendments. We hold that but one proposed amendment was submitted____

Lockhart, 76 Ariz. at 397, 265 P.2d at 452.

We do not believe those words overrule the Kerby test. Whether the separate portions of a proposed amendment relate to and are germane to one general subject is certainly part of determining whether they must stand or fall together. Further, contrary to the views of the Illinois court, Kerby does not require a finding that all voters would be certain to vote for or against each of the portions of the proposal. Obviously a proposal could seldom attract such unanimity of support to each of its parts.

What Kerby requires is simply that “logically speaking, [the different portions] should stand or fall as a whole” because the voters “supporting [each portion] would reasonably be expected to support the principle of the others.” Kerby, 44 Ariz. at 221, 36 P.2d at 554. Such a requirement does much to eliminate or at least reduce the dangers at which article 21, § 1 was aimed and, hopefully, also reduces the influence of “experts” in the business of “selling” proposals to the people through modern advertising campaigns. There is a difference between selling soap and amending the constitution; we believe we should try to maintain that difference. Thus, we hold that Kerby sets forth the proper test. We adverted to it most recently in Tilson, 153 Ariz. at 471-72, 737 P.2d at 1370-71.

Applying these legal principles to the case before us requires some interpretation of the proposed initiative. If it transfers power to make all procedural and evidentiary rules in all criminal cases from this court to the legislature, we believe the proposal would violate the single subject rule. There are several reasons for this: to begin with, subsections 1 through 10 of Proposition 104 deal only with procedural rights of victims involved in the criminal justice system. The rulemaking power, however, is not a procedural question at all. The power to make rules is a substantive question involving the separation of powers. Conway, 60 Ariz. at 79-81, 131 P.2d at 987-88. Courts have inherent power, even absent explicit constitutional provision or legislative consent, to formulate their own procedural rules. Id. at 79, 131 P.2d at 987. Thus, if broadly construed, the rulemaking provision of subsection 11 is a separation of powers provision that goes far beyond victims’ concerns and therefore does not pertain to the same subject as the rights provisions of the proposal.

Further, there is no reason suggested, nor any we could imagine, that voters supporting the victims’ rights enumerated in Proposition 104 would naturally or reasonably be expected to support the principle that the traditional separation of powers in the state is to be changed to vest the legislature with the entire rulemaking power for all criminal cases. We recognize that the legislature and the judiciary may disagree on certain rule provisions pertaining to criminal cases. However, it is simply impossible to conclude that as a matter of history or tradition transferring to the legislature all rulemaking power in all criminal cases is so connected to the ten enumerated rights of victims in the proposal that voters would reasonably be expected to vote for subsection 11 if they agreed with the first ten. In fact, informed voters might well favor the enumerated rights contained in subsections 1 through 10 yet vehemently oppose destroying the separation of powers. Given that this country was founded on the theory that freedom is best preserved by separating the powers of government, it is reasonable to conclude that voters who support the principles of victims’ rights would not also support overthrowing the principle that the judicial branch of government should keep its own house with regard to procedural and evidentiary rules. Considering the emphasis the founders of this state placed on the separation of powers, see Ariz. Const, art. 3, we believe this to be the proper conclusion.

If, therefore, Slayton’s interpretation of subsection 11 were correct, we would be constrained to find a violation of the single subject rule. Perhaps in recognition of this, however, the Task Force disagrees strongly with Slayton’s reading. Brief of Intervenor-Appellees at 11. The Task Force’s interpretation of its own proposition is much narrower than Slayton’s.

The Task Force submits that “proposition 104 does not amend article 6[5].” Id. at 13. Acknowledging some ambiguity in the language of subsection 11, it contends article 2, § 2.1(A)(11) of the initiative should be “construed to mean the legislature will have the power to amend or repeal rules [only] for the limited purpose of protecting victims’ rights.” Id. Such a construction would obviate the “difficult [constitutional] questions [that] might [otherwise] arise.” Id. Thus, the Task Force submits that the legislative authority granted by subsection 11 “extends only as far as necessary to protect ... rights created by the rest of proposition 104. Accordingly, subsection 11 is more than ‘reasonably related’ to the rest of the proposition; it depends on the rest of the proposition for its meaning and effect, and it would mean little or nothing if enacted in isolation.” Id. at 13-14.

We acknowledge, as the Task Force contends, that where alternate constructions are available, we should choose that which avoids constitutional difficulty. Greyhound Parks, Inc. v. Waitman, 105 Ariz. 374, 377, 464 P.2d 966, 969 (1970); 2A J. SUTHERLAND, STATUTORY CONSTRUCTION § 45.11, at 46 (Sands 4th ed. 1984). Taking the more narrow construction of subsection 11 advanced by its proponents, we believe the single subject rule is not violated.

Adopting the narrow construction, subsection 11 deals only with procedural rules pertaining to victims and not with the substantive general subject of the rulemaking power. All provisions of the proposition then deal with victims’ proposals. It may fairly be said also that the proposition comes much closer to a “consistent and workable whole on the general topic” of victims’ rights and protections. Kerby, 44 Ariz. at 221, 36 P.2d at 554. Though there is still some question, we believe that voters supporting the procedural rights enumerated in subsections 1 through 10 might reasonably be expected to support the concept of legislative oversight over effectuation of those specific provisions. It is quite likely they might not do so if the entire rulemaking regime were to be changed. Id. We hold, therefore, that Proposition 104, interpreted in accordance with the narrow construction advanced by its proponents, does not violate article 21, § 1 of the Arizona Constitution.

MOELLER and CORCORAN, JJ., and SARAH D. GRANT, Chief Judge of the Court of Appeals, concur. GORDON, C.J., recused himself and did not participate in this decision; pursuant to article 6, § 3 of the Arizona Constitution, SARAH D. GRANT, Chief Judge of the Court of Appeals, Division One, was designated to sit in his stead.

1 . See appendix for complete text of the initiative proposal.

2 . Overruled in other part by Adams v. Bolin, 74 Ariz. 269, 275, 247 P.2d 617, 621 (1952).

3 . Chief Justice Goldenhirsh joined Justice Ryan’s dissent from the majority’s per curiam opinion.