Ralph E Hughes v. Douglas K Martin

SUPREME COURT OF ARIZONA
En Banc
RALPH E. HUGHES,an elector, ) Arizona Supreme Court
) No. CV-02-0222-AP/EL
Plaintiff/Appellant, )
) Maricopa County Superior
v. ) Court
) No. CV 2002-012304
DOUGLAS K. MARTIN, a candidate )
for State Mine Inspector in 2002; )
)
BETSEY BAYLESS, as Secretary of )
State, JESSICA GIFFORD )
FUNKHOUSER, as Elections )
Director, Office of the )
Secretary of State; )
)
APACHE COUNTY BOARD OF SUPERVISORS)
MEMBERS JOE SHIRLEY JR., TOM M. )
WHITE, JR., DAVID A. BROWN AND )
APACHE COUNTY RECORDER JEANNE ) O P I N I O N
UDALL; )
)
COCONINO COUNTY BOARD OF )
SUPERVISORS MEMBERS PAUL BABBITT )
JR., ELIZABETH ARCHULETS, MATT )
RYAN, DEBORAH HILL, LOUISE )
YELLOWMAN AND COCONINO COUNTY )
RECORDER CANDACE OWENS; )
)
COCHISE COUNTY BOARD OF )
SUPERVISORS MEMBERS PATRICK CALL, )
PAUL NEWMAN, LESLIE E. THOMPSON )
AND COCHISE COUNTY RECORDER )
CHRISTINE M. RHODES; )
)
GILA COUNTY BOARD OF SUPERVISORS )
MEMBERS RON CHRISTENSEN, JOSE M. )
SANCHEZ, CRUZ SALAS AND GILA )
COUNTY RECORDER LINDA HAUGHT )
ORTEGA; )
)
GRAHAM COUNTY BOARD OF )
SUPERVISORS MEMBERS DREW JOHN, )
JAMES A. PALMER, MARK C. )
HERRINGTON AND GRAHAM COUNTY )
RECORDER WENDY JOHN; )
)
GREENLEE COUNTY BOARD OF )
SUPERVISORS MEMBERS DONALD R. )
STACEY, HECTOR RUEDAS, DIXIE L. )
ZUMWALT AND GREENLEE COUNTY )
RECORDER KATIE CLONTS; )
)
LA PAZ COUNTY BOARD OF )
SUPERVISORS MEMBERS EUGENE M. )
FISHER, CLIFFORD EDEY, )
JAY HOWE AND LA PAZ COUNTY )
RECORDER PATRICIA L. WALL; )
)
MARICOPA COUNTY BOARD OF )
SUPERVISORS MEMBERS FULTON BROCK, )
DON STAPELY, ANDREW KUNASEK, )
JANICE K. BREWER, MARY ROSE )
GARRIDO WILCOX AND MARICOPA )
COUNTY RECORDER HELEN PURCELL; )
)
MOHAVE COUNTY BOARD OF )
SUPERVISORS MEMBERS PETE BYERS, )
TOM SOCKWELL, BUSTER D. JOHNSON )
AND MOHAVE COUNTY RECORDER JOAN )
McCALL; )
)
NAVAJO COUNTY BOARD OF )
SUPERVISORS MEMBERS PERCY DEAL, )
JESSE THOMPSON, J.E. DESPAIN, )
LEWIS TENNEY, JERRY BROWNLOW )
AND NAVAJO COUNTY RECORDER )
LAURETTE JUSTMAN; )
)
PINAL COUNTY BOARD OF SUPERVISORS )
MEMBERS LIONEL D. RUIZ, SANDIE )
SMITH, JIMMIE B. KERR AND PINAL )
COUNTY RECORDER LAURA DEAN-LYTLE; )
)
PIMA COUNTY BOARD OF SUPERVISORS )
MEMBERS ANN DAY, DAN ECKSTROM, )
SHARON BRONSON, RAY CARROLL, )
RAUL M. GRIJALVA AND PIMA )
COUNTY RECORDER F. ANN )
RODRIGUEZ; )
)
YAVAPAI COUNTY BOARD OF )
SUPERVISORS MEMBERS GHERAL )
BROWNLOW, LORNA STREET, CHIP )
DAVIS AND YAVAPAI COUNTY )
2
RECORDER PATSY JENNEY-COLON; )
)
SANTA CRUZ COUNTY BOARD OF )
SUPERVISORS MEMBERS MANUEL RUIZ, )
ROBERT DAMON, JOHN C. MAYNARD, )
JR. AND SANTA CRUZ COUNTY )
RECORDER SUZANNE SAINZ; )
)
YUMA COUNTY BOARD OF SUPERVISORS )
MEMBERS LENORE STUART, LUCY )
SHIPP, CASEY PROCHASKA, TONY )
REYES, ROBERT McLENDON AND YUMA )
COUNTY RECORDER SUSAN K. MARLER, )
)
Defendants/Appellees. )
)
__________________________________)
_________________________________________________________________
Appeal from the Superior Court of Maricopa County
Honorable Mark R. Santana, Judge
AFFIRMED
_________________________________________________________________
Irvine Van Riper, P.A. Phoenix
By Thomas K. Irvine
and Larry Wulkan
Attorneys for Ralph E. Hughes
Gammage & Burnham Phoenix
By Lisa T. Hauser
and Cameron A. Artigue
Attorneys for Douglas K. Martin
_________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 This nomination petition challenge asks us to determine
whether propositions 101 and 107, both adopted by voters in the
1992 election, conflict. We conclude the propositions do not
3
conflict and that, taken together, they provide that a person
elected as mine inspector serves for a four-year term and is
limited to four consecutive terms.
I.
¶2 In 1992, the voters adopted two amendments to Article 19
of the Arizona Constitution concerning the office of mine
inspector. Proposition 101, a House concurrent resolution referred
to voters, stated that the mine inspector “shall be elected at
general elections, and shall serve for two FOUR years. THE INITIAL
FOUR YEAR TERM SHALL BE SERVED BY THE MINE INSPECTOR ELECTED IN THE
GENERAL ELECTION HELD IN NOVEMBER, 1994.”1 Proposition 107, a
voter initiative, stated in pertinent part:
[A] Mine Inspector . . . shall be elected at general
elections, and shall serve for a term of two years. No
Mine Inspector shall serve more than four consecutive
terms in that office. No Mine Inspector, after serving
the maximum number of terms, which shall include any part
of a term served, may serve in the same office until out
of office for no less than one full term. This
limitation on the number of terms of consecutive service
shall apply to terms of office beginning on or after
January 1, 1993.2
¶3 Voters first elected Martin as mine inspector in 1988 to
a two-year term. He was re-elected in 1992 to another two-year
term, and in 1994 and 1998 to four-year terms. He filed petition
1
Capital letters indicate additions to the text of Article
19 and strikeouts indicate language deleted from Article 19.
2
Underlined words indicate additions to the text of
Article 19.
4
signatures to qualify for the ballot for this year’s general
election. Hughes challenged Martin’s petitions in superior court,
arguing that Martin was barred from running because, together,
propositions 101 and 107 demonstrated the voters’ intent to
restrict the office of mine inspector to four two-year terms or
eight years.3 Alternatively, Hughes argued that because
propositions 101 and 107 conflict, the court must invalidate
proposition 101, the proposition that received fewer votes,
pursuant to the Arizona Constitution.4
¶4 Martin filed a motion to dismiss, asserting that the two
propositions do not conflict because their express provisions are
unrelated. Martin argued that because proposition 101 increased
the length of the mine inspector’s term and proposition 107
restricted the number of terms one person could serve as mine
inspector, the propositions could be read together to allow a
person to serve as mine inspector for four, consecutive, four-year
terms. Thus, Martin would be eligible to run for mine inspector in
the 2002 election.
¶5 Judge Santana granted Martin’s motion to dismiss,
3
Hughes also pointed to ballot language, publicity
pamphlets and legislative council analysis to support his position.
4
If voters approve conflicting measures or constitutional
amendments at the same election, “the measure or amendment
receiving the greatest number of affirmative votes shall prevail in
all particulars as to which there is conflict.” Ariz. Const. art.
IV, pt. 1, § 1(12).
5
reasoning that propositions 101 and 107 “can be harmonized to avoid
conflict: Article XIX (as amended by proposition 107) limits the
Mine Inspector to four consecutive terms, but those terms, as
determined by proposition 101, are four years in length.” Hughes
v. Martin, No. CV 2002-012304, Minute Entry at 2.
¶6 This appeal followed. We exercise jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) section 16-351.A (1996 & Supp.
2001). We review this legal issue de novo. Transp. Ins. Co. v.
Bruining, 186 Ariz. 224, 226, 921 P.2d 24, 26 (1996).
II.
¶7 In determining whether propositions conflict, we refrain
from looking beyond the plain language of the propositions “[i]f a
[proposition’s] language is clear and unambiguous . . . .
Ambiguity exists if there is uncertainty about the meaning or
interpretation of a [proposition’s] terms.” Hayes v. Cont’l Ins.
Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).
¶8 Proposition 101 states that the mine inspector “shall
serve for two FOUR years.” No ambiguity exists in this language,
which simply and clearly changes the mine inspector’s term of
office from two years to four years.
¶9 The portion of proposition 107 allegedly in conflict with
proposition 101 can be divided into two parts. The first part
essentially sets forth the law as it existed prior to the adoption
of propositions 101 and 107 by stating that the mine inspector
6
“shall serve for a term of two years.” Proposition 107. The
second portion of proposition 107 limits the office of mine
inspector to four consecutive terms. Id. Like proposition 101,
proposition 107 contains no ambiguity because its language clearly
restates the law as it existed at the time its supporters filed the
petition with respect to the length of the mine inspector’s term
(two years), and limits individuals serving as mine inspector to
four consecutive terms.
¶10 Because propositions 101 and 107 do not contain uncertain
terms, we proceed by looking solely at the text of the
propositions. Hayes, 178 Ariz. at 268, 872 P.2d at 672.
III.
A.
¶11 When constitutional amendments seemingly conflict, “it is
the duty of the court to harmonize both so that the constitution is
a consistent workable whole.” State ex rel. Nelson v. Jordan, 104
Ariz. 193, 196, 450 P.2d 383, 386 (1969). This approach ensures
that the submission of one or the other amendment “was not a
pointless act” and that “the will of the majority as expressed in
free elections . . . prevail[s].” Id.
¶12 Nelson involved two allegedly conflicting amendments both
approved by voters in the 1968 election, to Article 5 of the
Arizona Constitution. Id. at 195, 450 P.2d at 385. One amendment,
proposition 108, eliminated the office of state auditor while
7
reciting the current law under which officers served two-year
terms. The other amendment, proposition 104, extended the term of
offices of the executive department, including the office of state
auditor, from two years to four years. Id.
¶13 Recognizing that Article 5 “is divisible into two
severable parts, one enumerating the offices of the executive
department and the other providing for their terms,” we held that
both propositions could be given effect because each proposition
addressed a different portion of Article 5. Id. at 195-96, 450
P.2d at 385-86. Proposition 108 enumerated the offices of the
executive department, while proposition 104 set forth the number of
years in the officers’ terms. Harmonizing propositions 108 and
104, we concluded that proposition 108 eliminated the office of
state auditor and proposition 104 expanded executive officers’
terms to four years. Id. at 196, 450 P.2d at 386.
B.
¶14 Nelson teaches that “[t]he guiding principle of
constitutional construction . . . is that where two or more
amendments are adopted on the same day they must be construed
together and effect given to all. Any differences must be
reconciled, if such is possible.” Hood v. State, 24 Ariz. App.
457, 463, 539 P.2d 931, 937 (1975).5 Like the proposed amendments
5
The dissent presents a reasonable reading of the
propositions, considered individually. Because the voters adopted
both, however, we must construe them together, not separately.
8
in Nelson, propositions 101 and 107 can be harmonized because each
proposition serves a purpose separate and distinct from the other,
and alters different portions of Article 19.
¶15 Article 19 addresses several aspects of the office of
mine inspector and can be divided into separate parts. See Ariz.
Const. art. XIX. One portion of Article 19 establishes the office
of mine inspector, the second part describes the office, another
sets forth the number of years in the mine inspector’s term and the
final portion addresses the number of consecutive terms a person
may serve as mine inspector. Id.
¶16 The plain language of proposition 101 increases the mine
inspector’s term from two to four years; it affects only that
portion of Article 19 concerned with the number of years in a mine
inspector’s term. Proposition 107, on the other hand, creates a
limit of four consecutive terms for the office of mine inspector.
As a result, proposition 107's changes affect only that part of
Article 19 enumerating the consecutive terms a person may serve as
mine inspector. Because proposition 101 addresses the length of
the mine inspector’s term and proposition 107 addresses the number
of consecutive terms an individual may serve as mine inspector, the
two propositions can be read together to increase the mine
inspector’s term to four years while placing a limit of four
consecutive terms upon those seeking re-election to that office.
¶17 Combining propositions 101 and 107 in this way allows us
9
to preserve the full expression of the voters’ intent rather than
judicially select one voter-approved amendment over another. If
we were to adopt Hughes’ argument, we would silence the voices of
those voters who adopted proposition 101. We will not do so unless
a conflict leaves us no choice. Fortunately, we can reconcile
these amendments and give effect to both.
¶18 Allowing a person to serve as mine inspector for up to
four consecutive four-year terms would not have been an irrational
choice on the part of Arizona voters because the mine inspector
must be a well-qualified individual who fulfills several statutory
requirements.6 If, however, Arizona voters did not intend to allow
an individual to serve as mine inspector for up to four consecutive
four-year terms, the voters can alter either the number of years in
a mine inspector’s term or the number of consecutive terms a mine
inspector may serve.
C.
¶19 Proposition 107 applies to “terms of office beginning on
6
The state mine inspector shall be a
resident of this state at least two years
before election, not under thirty years of
age, and shall have been practically engaged
in, and acquainted with, mines and mining in
this state, and shall have had at least four
years’ experience in underground mining and
three additional years in either underground
mining, smelting, open pit mining, or
experience in any industry under the
jurisdiction of the state mine inspector.
A.R.S. § 27-121.A (2000 & Supp. 2001).
10
or after January 1, 1993.” Accordingly, Martin may run for the
office of mine inspector in this year’s election.
IV.
¶20 For the foregoing reasons, we affirm the judgment of the
superior court.
________________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
_____________________________________
Charles E. Jones, Chief Justice
_____________________________________
Rebecca White Berch, Justice
_____________________________________
Michael D. Ryan, Justice
FELDMAN, Justice, dissenting
¶21 I cannot agree with the majority's basic premise. It
finds no conflict between Propositions 101 and 107 and, applying
the rule of the Nelson case, harmonizes the two propositions,
holding that the mine inspector may serve four terms of four years
each. See Opinion at ¶¶ 1, 11; State ex rel. Nelson v. Jordan, 104
Ariz. 193, 450 P.2d 383 (1969). It is clear, however, that the
11
voters were faced with two conflicting proposals, both adopted in
the 1992 election. One, Proposition 101, was to increase the term
of the mine inspector from two to four years without terms limits.
The other, Proposition 107, was to leave the term of mine inspector
at two years and impose a four term limit, for a total of eight
years. By a margin of a quarter million votes, the voters rejected
Proposition 101 and adopted Proposition 107. We should honor that
decision. I therefore respectfully dissent.
A. The text
¶22 The majority concludes that Article 19, which deals only
with the office of mine inspector, "can be divided into separate
parts." Opinion at ¶ 15. Each of the propositions therefore
"alters different portions of Article 19." Id. at ¶ 14. There are
two flaws in this reasoning.
¶23 First, neither proposition has a word to say about the
nature or duties of the mine inspector. Both deal exclusively with
how long the mine inspector may hold office. Proposition 101 says
that the mine inspector "shall serve for four years" and contains
no term limit clause. Proposition 107, on the other hand, says the
mine inspector "shall serve for a term of two years" and shall not
"serve more than four consecutive terms." To my mind, the two
provisions are in direct conflict.
¶24 Second, the majority’s argument that the two propositions
alter different portions of Article 19 is refuted by comparing the
text of Article 19 as it existed before the 1992 election with the
wording of each of the amending propositions adopted in that
election.
¶25 Article 19 was only one paragraph in length before the
12
1992 amendments. It read:
The office of Mine Inspector is hereby
established. The Legislature, at its first
session, shall enact laws so regulating the
operation and equipment of all mines in the
State as to provide for the health and safety
of workers therein and in connection
therewith, and fixing the duties of said
office. Upon approval of such laws by the
Governor, the Governor, with the advice and
consent of the Senate, shall forthwith appoint
a Mine Inspector, who shall serve until his
successor shall have been elected at the first
general election thereafter and shall qualify.
Said successor and all subsequent incumbents
of said office shall be elected at general
elections, and shall serve for two years.
(Emphasis added.)
¶26 Proposition 101 amended Article 19 by modifying the last
sentence to read as follows: "Said successor and all subsequent
incumbents of said office shall be elected at general elections,
and shall serve for four years." A sentence was then added to make
the change effective after the 1994 election. Thus, the only
relevant change accomplished by Proposition 101 was to strike the
word "two" in the original and substitute the word "four." There
was no term limit provision.
¶27 Proposition 107, on the other hand, dealt with a number
of offices and limited "terms that a person may serve in federal
and state offices." See Proposition 107, Ballot Statement,
Analysis by Legislative Council. The proposition contained,
however, separate sections dealing with each office affected. The
section dealing with Article 19 contained the entire original text
of Article 19 — one paragraph — and changed the operative sentence
to read as follows: "Said successor and all subsequent incumbents
of said office shall be elected at general elections, and shall
13
serve for a term of two years." (Emphasis added.) It then added
the provision limiting service to "no more than four consecutive
terms."
¶28 Thus, the operative sentences in these single paragraphs
are in direct conflict. Proposition 101 says the mine inspector
"shall serve for four years" and does not limit the number of
terms. Preposition 107 provides for “a term of two years" and
limits the number of consecutive terms to four. I can only
describe this as a direct and total conflict. The conflict becomes
even more apparent when we note how the official annotator
published the changes in the statute books:
ARTICLE XIX. MINES
Text of section amended by Proposition 101
(1992 election)
The office of mine inspector is hereby
established. The legislature shall enact laws
so regulating the operation and equipment of
all mines in the state as to provide for the
health and safety of workers therein and in
connection therewith, and fixing the duties of
said office. Upon approval of such laws by the
governor, the governor, with the advice and
consent of the senate, shall forthwith appoint
a mine inspector, who shall serve until his
successor shall have been elected at the first
general election thereafter and shall qualify.
Said successor and all subsequent incumbents
of said office shall be elected at general
elections, and shall serve for four years.
The initial four year term shall be served by
the mine inspector elected in the general
election held in November, 1994.
Amendment approved election Nov. 3, 1992, eff.
Nov. 23, 1992.
For another text of this section amended
by initiative measure, Proposition 107,
see Art. 19, post
ARTICLE XIX. MINES
14
Text of section amended by 1992 election
initiative measure, Proposition 107
The office of Mine inspector is hereby
established. The Legislature, at its first
session, shall enact laws so regulating the
operation and equipment of all mines in the
State as to provide for the health and safety
of workers therein and in connection
therewith, and fixing the duties of said
office. Upon approval of such laws by the
Governor, the Governor, with the advice and
consent of the Senate, shall forthwith appoint
a Mine Inspector, who shall serve until his
successor shall have been elected at the first
general election thereafter and shall qualify.
Said successor and all subsequent incumbents
of said office shall be elected at general
elections, and shall serve for a term of two
years. No Mine Inspector shall serve more than
four consecutive terms in that office. No Mine
Inspector, after serving the maximum number of
terms, which shall include any part of a term
served, may serve in the same office until out
of office for no less than one full term.
This limitation on the number of terms of
consecutive service shall apply to terms of
office beginning on or after January 1, 1993.7
Amended by initiative measure election Nov. 3,
1992, eff. Nov. 23, 1992.
For text of another Article 19 also
approved at the 1992 general election
(Proposition 101), see Article 19, ante
West's 1996 Pocket Part to Arizona Revised Statutes, volume 1
(emphasis added to show the part of Article 19 that changed).
¶29 Thus, both amendments to Article 19 dealt with one
discrete subject at the end of a single paragraph — the mine
inspector's term of office — not different portions, sections, or
divisions of Article 19. In its attempt to harmonize what it
7
There are also conflicting effective dates. Proposition
101 applies to the mine inspector elected in the 1994 general
election while Proposition 107 applies to the mine inspector's term
beginning in 1993, thus including any partial term filled by
appointment during the year 1993.
15
considers separate portions of Article 19, the majority disregards
the plain and conflicting text of each proposition and cobbles
together a third version, using the four-year term provided in
Proposition 101, combining it with the four-term limit in
Proposition 107, and ignoring the two-year term provided in
Proposition 107. In so doing, it violates not only text but
intent.
B. Intent
¶30 The majority says that by so "combining Propositions 101
and 107," we may "preserve the full expression of the voters'
intent rather than judicially select one voter-approved amendment
over another." Opinion at ¶ 17. But the record clearly shows that
the intent of the two propositions as presented to the voters was
totally in conflict.
¶31 The intent underlying Proposition 101 is apparent from
the text. It says and purports to do only one thing: change the
mine inspector's term of office from two years to four years. This
was accomplished by changing the word "two" to "four." This intent
is explicit in the Legislative Council's analysis, which appeared
in the publicity pamphlet mailed to voters in compliance with
A.R.S. §§ 19-123 and 19-124, so that the voters would understand
the effect of adopting Proposition 101. In the relevant
description, the Legislative Council's analysis read as follows:
This proposed amendment to the Arizona
Constitution would lengthen the term of office
of the State Mine Inspector. Currently, the
State Mine Inspector is elected for a two-year
term. Proposition 101, if adopted, would
increase that to a four-year term, beginning
with the term for the State Mine Inspector who
is elected at the November, 1994 general
election. This proposition does not limit the
16
number of times a person can be elected to the
office of State Mine Inspector.
(Emphasis in original.)
¶32 The Legislative Council's pro and con arguments, required
by A.R.S. § 19-123, put the issue presented by Proposition 101
quite plainly: The argument in favor of the proposition was that
the mine inspector was entitled to a four-year term like other
state officials, so he could pay attention to his duties instead of
worrying about elections every two years. The argument against was
that the mine inspector would be "more attentive to the needs of
the people" if he had to run every two years, so the shorter term
should continue. See Legislative Council Arguments Favoring and
Opposing Proposition 101. These arguments were furnished to all
voters as part of the publicity pamphlet required by A.R.S. § 19-
123.
¶33 The Legislative Council's analysis was equally clear with
respect to the intent of Proposition 107. The council's
description of the meaning of Proposition 107's new Article 19 was:
Mine Inspector: a maximum of four consecutive
terms, which is eight years. The Mine
Inspector has a two-year term, which is
unchanged by this proposed amendment.
(Emphasis added.)
¶34 The intent of Proposition 107 was also explicit on the
ballot itself. In the official title of Proposition 107, as
printed on the ballot given voters, those voters were informed that
the effect of Article 19 was: "TO LIMIT THE TERMS OF OFFICE OF THE
STATE MINE INSPECTOR TO FOUR CONSECUTIVE TERMS (EIGHT YEARS) BY
AMENDING ARTICLE 19." Obviously, four terms totalling eight years
17
means each term is two years, and that, in fact, is exactly what
the text of Proposition 107 said in its operative sentence by
providing that the mine inspector "shall serve for a term of two
years." That sentence was not left in place by mistake, for
Proposition 107 added the words "term of" before the phrase "two
years" as it appeared in the original version of Article 19 set
forth above.
¶35 Thus, the battle lines were clearly drawn and the
intended effect of the two propositions as put forth in the
publicity pamphlet and on the ballot is contradictory. I simply
cannot join in the supposition that the voters looked past the text
and explanations given to them and formed some intent that they
would combine the two propositions so as to adopt the four-year
term provided by Proposition 101 together with the four-term limit
provided by Proposition 107.
¶36 In fact, the result reached by the majority's combining
the two propositions means that the mine inspector, unlike any
other state officeholder covered by Proposition 107, can serve for
up to sixteen years. This, despite the fact that Proposition 107
clearly limited the term for mine inspector to eight years.
Martin, the current officeholder, was in office in 1992 and by
today’s majority opinion will be able to run for election this year
even though he has already served more than eight years, part of it
illegally. Proposition 107 prohibits his placement on this year’s
ballot. Presumably today’s opinion not only allows him on the
ballot but permits him to serve until 2006, a total of more than
sixteen years, thus directly violating the text and intent of
Proposition 107.
18
¶37 There is only one result to be reached; there is nothing
to harmonize. The text and intent of Proposition 101 was to
lengthen the term from two years to four without imposing term
limits, and the text and intent of Proposition 107 was to keep a
two-year term but to impose a limit of four consecutive terms or
eight years. The two propositions cannot be reconciled.
¶38 The majority relies on the Nelson case, but the
propositions in Nelson were easy to harmonize. On the one hand, a
state elective office was eliminated, and on the other hand, the
term of a number of elective offices, including the one eliminated,
was extended to four years. Voters had two clear choices before
them that were fundamentally separate from one another. Should the
position of auditor be eliminated? Should a term in office be
extended to four years? See Nelson, 104 Ariz. 193, 450 P.2d 383.
It was easy in Nelson to harmonize separate affirmative votes,
separate negative votes, or any split approval. It is not possible
to do so in this case.
C. Resolution
¶39 As the majority notes, it is our duty to harmonize, but
as it also notes, Nelson tells us that we must harmonize only "if
possible." Opinion at ¶ 14 (quoting Hood v. State, 24
Ariz.App.457, 463, 539 P.2d 931, 936 (1975)). It is not possible
to harmonize these propositions, and it is not the court's duty to
reconcile the irreconcilable. If we were faced only with the fact
that, at the same election, the voters adopted two propositions in
direct conflict with each other, we might have to reject both
proposals. But our constitution directs a resolution. It provides
that in cases such as this, when there is a conflict in
19
constitutional amendments adopted at the same election, the one
"receiving the greatest number of affirmative votes shall prevail
in all particulars as to which there is a conflict." Ariz. Const.
art. IV, pt. 1 § 1(12). Proposition 107 received over one million
affirmative votes, while Proposition 101 received only about
three-quarters of a million. Thus, under our constitution,
Proposition 107 prevails.
¶40 The majority has not, as it claims, “preserve[d] the full
expression of the voters’ intent.” Opinion at ¶ 17. It has,
rather, silenced the voices of the majority who adopted Proposition
107, intending and stating that the mine inspector was to hold
office for a two-year term, limited to four consecutive terms
(eight years). The majority has changed this to read a four-year
term, limited to four consecutive terms (sixteen years).
¶41 I would instead hold that Proposition 107 governs and
that the mine inspector shall serve for a two-year term with a
limit of four consecutive terms for a total of eight rather than
sixteen years. Such result would enact the will and intent of the
people who, by over 250,000 votes, rejected the proposition that
the mine inspector could serve a four-year term without term limits
and adopted instead an amendment leaving the two-year term in
effect but imposing an eight-year term limit.
______________________________
STANLEY G. FELDMAN, Justice
20