Clean Elections Institute, Inc. v. Brewer

HURWITZ, Justice,

concurring.

¶ 28 The opinion of the Court faithfully summarizes and correctly applies our precedents concerning the “separate amendment rule” in Article 21, Section 1 of the Arizona Constitution. The opinion is particularly useful in emphasizing the differences between this constitutional provision and the “single subject” rule applicable to legislation in Article 4, Part 2, Section 18. Op. ¶¶ 3-9.¹⁴

¶ 29 While I join the Court’s opinion, I have substantial doubts about the continued utility of the “common principle or purpose test” derived from Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934), and its progeny. Because that test in part turns on a judicial determination of whether a voter supporting one part of a proposed amendment would “be expected to support the principle of the others,” id. at 221, 36 P.2d at 554, it involves the Court in a prediction of voter preferences and behavior that is often somewhat subjective and that will subject most proposed mul-ti-faceted constitutional amendments to attack.

¶ 30 It may well be that a different approach to the separate amendment rule would provide greater certainty in interpretation while still achieving the critical goal of Article 21, Section 1 — making sure that when voters are asked to amend the Constitution, what is before them is a single amendment, not several distinct proposals lumped under one heading. For example, an approach that focused on such objective factors as whether one proposal logically follows from another and is necessary for the practical implementation of the first might well provide more predictable adjudication.

¶ 31 The parties to this case, however, did not argue that we should apply anything but the traditional Kerby test, and I am reluctant to consider altering our traditional approach in the absence of briefing and argument on the subject. For the reasons stated by the Court, Proposition 106 fails the Kerby test, and I therefore leave for another day whether that test should continue to govern our separate amendment jurisprudence.

14 . Because even the more lenient "single subject" rule of Article 4, Part 2, Section 13 does not apply to legislation proposed by initiative. Citizens Clean Elections Comm'n v. Myers, 196 Ariz. 516, 524 ¶ 35, 1 P.3d 706, 714 (2000), it is clear that if Proposition 106 had offered legislation, rather than a constitutional amendment, the multiple subjects in the proposal would not have barred its placement on the general election ballot.