Steve Gallardo v. State of Arizona

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STEVE GALLARDO, AN INDIVIDUAL; LYDIA GUZMAN, AN INDIVIDUAL;
MARCUS LARA, AN INDIVIDUAL; ROSE MARIE DURAN LOPEZ, AN
INDIVIDUAL; RANDOLPH LUMM, AN INDIVIDUAL; AND MARTIN QUEZADA,
AN INDIVIDUAL,
Plaintiffs/Appellants,
v.
STATE OF ARIZONA, A BODY POLITIC; HELEN PURCELL, IN HER OFFICIAL
CAPACITY AS MARICOPA COUNTY RECORDER; KAREN OSBORNE, IN HER
OFFICIAL CAPACITY AS MARICOPA COUNTY DIRECTOR OF ELECTIONS;
MARICOPA COUNTY BOARD OF SUPERVISORS; AND DENNY BARNEY, STEVE
CHUCRI, ANDY KUNASEK, CLINT L. HICKMAN, AND MARIE LOPEZ ROGERS,
IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE MARICOPA COUNTY
BOARD OF SUPERVISORS,
Defendants/Appellees.
No. CV-14-0208-PR/A
Filed October 30, 2014
Appeal from the Superior Court in Maricopa County
The Honorable Randall H. Warner, Judge
No. CV2013-017137
AFFIRMED
Opinion of the Court of Appeals, Division One
691 Ariz. Adv. Rep. 36 ___ Ariz. ___, ___ P.3d ___ (2014) WL 3671571
VACATED
COUNSEL:
Thomas C. Horne, Arizona Attorney General; Robert L. Ellman, Solicitor
General; David D. Weinzweig, Senior Litigation Counsel, Phoenix, for State
of Arizona
GALLARDO V. STATE OF ARIZONA
Opinion of the Court
William G. Montgomery, Maricopa County Attorney; M. Colleen Connor
and Bruce P. White, Deputy County Attorneys, Civil Services Division,
Phoenix, for Helen Purcell, Karen Osborne, Maricopa County Board of
Supervisors, Denny Barney, Steve Chucri, Andy Kunasek, Clint L.
Hickman, and Marie Lopez Rogers
Paul F. Eckstein, Jessica L. Everett-Garcia, D. Andrew Gaona, Alexis E.
Danneman, Perkins Coie, LLP, Phoenix; and Robert A. Kengle, Rosa E.
Zamora, Lawyers’ Committee for Civil Rights Under Law, Washington,
DC, for Steve Gallardo, Lydia Guzman, Marcus Lara, Rose Marie Duran
Lopez, Randolph Lumm, and Martin Quezada
Kory A. Langhofer and Thomas J. Basile, Brownstein Hyatt Farber Schreck,
LLP, Phoenix, for Mario E. Diaz and Friends of Mario E. Diaz, Amici Curiae
JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BRUTINEL,
and JUSTICE TIMMER joined.
JUSTICE BERCH, opinion of the Court:
¶1 We granted review to determine whether A.R.S. § 15-1441(I),
which adds two at-large members to the governing board of any
community college district located in a county with a population of at least
three million people, is a special law prohibited by article 4, part 2, section
19 of the Arizona Constitution. We hold that the amended section is not an
unconstitutional special law.
I. BACKGROUND
¶2 Community college districts are authorized by statute. A.R.S.
§§ 15-1401 to -1410, -1441 to -1453. Ten such districts exist in Arizona, each
comprising five precincts. Id. § 15-1441(A). Before the amendment at issue
here, each district was governed by a local community college district board
consisting of five members, one elected from each precinct for a six-year
term. Id. § (C).
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
¶3 In April 2010, the Arizona Legislature amended A.R.S. § 15-
1441(I) to require the election of two at-large members to community
college boards in very populous counties:
[I]n addition to the governing board members who are elected
from each of the five precincts in a community college district,
a county with a population of at least three million persons shall
elect two additional governing members from the district at
large.
2010 Ariz. Sess. Laws, ch. 48, § 1 (2d Reg. Sess.). The amendment also
reduced board member terms from six years to four years, for each “county
with a population of at least three million persons.” Id. (amending A.R.S.
§ 15-1441(C), (I)).
¶4 Because only Maricopa County has a population of more than
three million, it is the only county to which the amendment now applies.
Arizona’s next most populous counties, Pima and Pinal, will likely not have
three million people before the end of the century. Maricopa County is set
to elect its first two additional at-large governing board members at the
November 2014 general election.
¶5 Plaintiffs, six registered voters from Maricopa County, filed a
complaint in superior court seeking a declaration that the legislation is
unconstitutional and an injunction to prevent the election of the at-large
board members. Plaintiffs contended, among other claims, that, as
amended, A.R.S. § 15-1441(I) violates Arizona’s constitutional prohibition
against special laws. See Ariz. Const. art. 4, pt. 2, § 19.
¶6 The superior court concluded that § 15-1441(I) does not
violate the special law prohibition. The court of appeals reversed, holding
that this statute is an unconstitutional special law. Gallardo v. State of
Arizona (“Gallardo I”), 691 Ariz. Adv. Rep. 36, ___ Ariz. ___, ___ P.3d ___,
2014 WL 3671571 (App. July 29, 2014). It found that the opportunity to enter
the class, and thus receive the benefit of the law, must “be not only possible,
but reasonably probable,” and must be able to occur “within a reasonable
time.” Id. at ___ ¶ 12, 2014 WL 3671571, at *3 (citations and internal
quotation marks omitted). Because no other county will qualify to enter the
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
class for more than eighty years, the court concluded that the class was not
practically or reasonably elastic or expandable. Id. at ___ ¶¶ 13, 16–17, 2014
WL 3671571, at *3–4.
¶7 We granted review to clarify the test for determining when a
law is an unconstitutional special law. The issue has statewide importance,
as at least thirty-five Arizona statutes rely on population classifications.
II. DISCUSSION
A. Standard of Review
¶8 At the outset, Defendants argue that in determining whether
a statute is a special law, we must apply a strong presumption in favor of
its constitutionality, and Plaintiffs must prove its unconstitutionality
beyond a reasonable doubt. Although prior cases have used similar
language, it incorrectly states the standard. Determining constitutionality
is a question of law, which we review de novo. League of Ariz. Cities & Towns
v. Brewer, 213 Ariz. 557, 559 ¶ 7, 146 P.3d 58, 60 (2006). Assessing the
constitutionality of a law fundamentally differs from determining the
existence of historical facts, the determination of which is subject to
deference. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778
(1996). We therefore disapprove the use of the “beyond a reasonable
doubt” standard for making constitutionality determinations.
¶9 We do, however, presume that “the legislature acts
constitutionally.” Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep.
Redistricting Comm’n, 220 Ariz. 587, 595 ¶ 21, 208 P.3d 676, 684 (2009)
(quoting State v. Murphy, 177 Ariz. 57, 61, 570 P.2d 1070, 1074 (1977)). But
if a law burdens fundamental rights, such as free speech or freedom of
religion, any presumption in its favor falls away. See id. at 595 ¶ 20 n.7, 208
P.3d at 684 n.7 (observing that “content-based restrictions on speech are
‘presumptively invalid,’” so “the burden shifts to the government to
demonstrate that a legislative enactment is constitutional”) (quoting R.A.V.
v. City of St. Paul, 505 U.S. 377, 382 (1992)); see also Cave Creek Unified Sch.
Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 11, 308 P.3d 1152, 1156 (2013) (observing that
“[w]hen the statute in question involves no fundamental constitutional
rights or distinctions based on suspect classifications, we presume the
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
statute is constitutional and will uphold it unless it clearly is not”). In this
case, the law in question touches only peripherally on the right to vote. See
Ariz. Minority Coal., 220 Ariz. at 595 ¶ 20 n.7, 208 P.3d at 684 n.7 (finding
that “redistricting alone” does not affect the “essence of the fundamental
right” to vote (citations and internal quotation marks omitted)). Thus, we
will accord our traditional presumption of constitutionality to the
legislative enactment. Id.
B. Special Laws
¶10 Special laws favor one person or group and disfavor others.
Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 148–49, 800 P.2d 1251,
1256–57 (1990). Article 4, part 2, section 19(11) of the Arizona Constitution
prohibits special laws that affect “[t]he conduct of elections.” The
Constitution also prohibits special laws if “a general law can be made
applicable.” Ariz. Const. art. 4, pt. 2, § 19(20).
¶11 This Court set forth the test for determining when a law is a
special law nearly twenty-five years ago in Republic Investment. To survive
scrutiny, (1) the law must have “a rational relationship to a legitimate
legislative objective,” (2) the classification the law makes must be
legitimate, encompassing all members that are similarly situated, and (3)
the classification must be elastic, allowing “other individuals or entities to
come within” and move out of the class. Republic Inv., 166 Ariz. at 149, 800
P.2d at 1257 (quoting Petitioners for Deannexation v. City of Goodyear, 160
Ariz. 467, 472, 773 P.3d 1026, 1031 (App. 1989)). We suggested that the
analysis proceed in the following order:
[T]he court must first ascertain whether the law has a rational
relationship to a legitimate legislative objective. If it does not,
of course, our inquiry is over. But if it does, we must further
decide if the act legitimately classifies by population,
geography, or time limitations. If we find a legitimate
classification, we must then determine if the act permits other
individuals or entities to come within the class, and thus
within operation of the law, within a reasonable time, or if at
all.
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
Id. (quoting Petitioners for Deannexation, 160 Ariz. at 472, 773 P.3d at 1031).
1. Rational Basis
¶12 The first prong of the special laws test requires that the law
bear a rational relationship to a legitimate legislative objective. Id. Such a
relationship is identical to that required for equal protection analysis. See
State Comp. Fund v. Symington, 174 Ariz. 188, 193, 848 P.2d 272, 278 (1993);
Republic Inv., 166 Ariz. at 149, 800 P.2d at 1257; Ariz. Downs v. Ariz.
Horsemen’s Found., 130 Ariz. 550, 557–58, 637 P.2d 1053, 1060–61 (1981). A
law “may withstand equal protection review, yet still be found
unconstitutional under the special/local law provision” if it fails the
additional assessments required under the inclusiveness and elasticity
prongs of the special laws analysis, not because a more rigorous or exacting
type of rational basis analysis applies. Republic Inv., 166 Ariz. at 149, 800
P.2d at 1257.
¶13 Seizing on language in Republic Investment stating that, “in
addition to whether the classification has a reasonable basis,” a challenged
law must also be inclusive and elastic, id. (emphasis added), Plaintiffs argue
that the classification itself, and not the law as a whole, must have a rational
basis. We disagree. Consistent with our rational basis analysis of equal
protection and equal privileges and immunities issues, we conclude that it
is the law itself, and not merely the classification, that must have a rational
basis. Id.; Petitioners for Deannexation, 160 Ariz. at 472, 773 P.2d at 1031. We
consider the reasonableness of the classification when analyzing the inclusiveness
prong of the Republic Investment test.
¶14 The legislature did not state its purpose in amending A.R.S.
§ 15-1441(I). Defendants posit that in very populous counties, community
college districts are apt to be large and so may require a larger board to
facilitate governance, ameliorate under-representation, and promote
diversity. Plaintiffs counter that county population and boundaries bear
little relationship to community college district size, noting that the state
has only ten community college districts, even though Arizona has fifteen
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Opinion of the Court
counties.1
¶15 The legislature could have drawn community college district
lines more precisely based on a district’s student population or number of
campuses. But a law’s imprecision does not preclude a rational basis
finding. Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 566, 789 P.2d
1061, 1068 (1990) (noting that “[a] perfect fit is not required”).
¶16 The legislature apparently used county population as a proxy
for the district’s student population or number of campuses. Using
population as a shorthand for other, more specific measures is not
irrational. Cf. Long v. Napolitano, 203 Ariz. 247, 255–56 ¶ 25, 53 P.3d 172,
180–81 (App. 2002) (approving use of county population to identify
counties having a large airport and a sufficient number of hotels to support
tourism related to a stadium). Moreover, the structure of the community
college districts shows the relationship between the districts and counties.
See A.R.S. §§ 15-1401 to -1410, -1441 to -1453. Each district is named for the
county or counties that it encompasses. And representatives on community
college district boards are generally elected from districts that mirror the
county supervisorial district boundaries. See A.R.S. § 15-1402 (setting
requirements for community college districts); id. § 15-1441(A) (setting up
precincts in districts to have the same boundaries as election precincts).
¶17 Citing Long, 203 Ariz. at 254 ¶ 20, 53 P.3d at 179, Plaintiffs urge
that every identified purpose for a law must have a rational basis. Long
differs from this case, however, in that the statute there dealt with four
distinct subjects: a football stadium, tourism, spring training, and youth
sports. Id. at 254 ¶ 18, 53 P.3d at 179. Here, we deal with only one subject,
for which many rationales have been advanced. 2 In such a situation, a court
need not find that every rationale is furthered. As long as the law
conceivably furthers a legitimate governmental purpose, a rational basis
exists. Ariz. Downs, 130 Ariz. at 555, 637 P.3d at 1058.
1 Three community college districts encompass two counties, and one
district covers three counties.
2 The amendment to A.R.S. § 15-1441(I) also changed the length of
terms for governing board members, but Plaintiffs have not challenged that
provision here.
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
¶18 Reasons such as facilitating community college district
governance and increasing representation and perhaps diversity on
governing boards rationally relate to legitimate governmental interests
“common . . . to the whole state.” Petitioners for Deannexation, 160 Ariz. at
472, 773 P.2d at 1031 (quoting Abrams v. State, 534 P.2d 91, 94 (Alaska 1975)).
In sum, the legislature could have rationally concluded that adding two at-
large seats to the governing boards of very populous districts would
promote better governance and representation.
2. Inclusiveness
¶19 The Republic Investment test also requires that the
classification be legitimate and that it encompass all members of the
relevant class. 166 Ariz. at 149, 800 P.2d at 1257. A law may be general even
if it applies only to one entity as long as that entity is the only member of a
legitimate class. Id. at 150 & n.4, 800 P.2d at 1258 & n.4.
¶20 At the trial court, Defendants presented statistics showing
that based on the county’s population, each Maricopa County Community
College District (“MCCCD”) Board member serves more than 760,000
citizens, nearly four times the number in the next most populous county,
Pima County. The citizen-to-board-member ratio for all other districts is
much lower.
¶21 The parties do not contest that the MCCCD is one of the
largest community college districts in the nation, having more than 250,000
students attending classes through ten campuses. Given the district’s size,
the legislature could rationally have concluded that the district is so large
that its board should have additional members to better serve the students
and public, and that only when the number of citizens represented per
board member reaches a certain threshold do the problems of under-
representation, insufficient capacity, and need for increased governance
arise.
¶22 Plaintiffs attempt to show that the law does not cover all
affected members of the class by asserting that the ratio of representation
between Maricopa County and Pima County is 3.9 to 1, while the disparity
between Pima County and other counties is much larger; this, they
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
maintain, demonstrates that the law is underinclusive. For example, they
allege that Pima County Community College District Board members
represent approximately 196,000 people, or 7.5 times the number
represented by board members in Cochise County. This disparity (7.5 to 1),
being larger than the disparity between Maricopa and Pima counties (3.9 to
1), they claim, indicates that the Pima County Community College District
Board also needs additional members, even though Pima County does not
have more than three million persons.
¶23 But the problem to be solved by this statute is not simply to
equalize across community college boards the ratio between the district’s
population and the number of board members. It is entirely possible that a
five-member community college district board can adequately govern in a
county like Pinal, with a population of approximately 375,000 and a ratio of
approximately 75,000 citizens per board member, while a district like the
Pima County Community College District, with a population just under a
million persons and a ratio of approximately 196,000 persons per board
member, can still be adequately governed by a five-member board. Stated
differently, Plaintiffs presume that the optimum number of board members
is linearly related to district population, but the legislature could reasonably
have concluded that it is not. See Jordan Ellenberg, How Not to Be Wrong:
The Power of Mathematical Thinking 21–30 (2014).
¶24 Plaintiffs have not shown that Pima County suffers from
under-representation or insufficient capacity, or that it needs increased
governance. Nor have they established that any other district faces the
problems confronting the MCCCD. The legislature has implicitly
determined that only when a higher threshold is reached do these problems
manifest to such a degree that they must be remedied. We defer to the
legislature’s assessment that there is a problem to be solved and its policy
choice as to how to resolve it. See Ariz. Minority Coal., 220 Ariz. at 595
¶¶ 20–21, 208 P.3d at 684 (noting that “when there is a reasonable, even
though debatable, basis for the enactment of a statute, we will uphold the
act unless it is clearly unconstitutional” (quoting Murphy, 117 Ariz. at 61,
570 P.2d at 1074)).
¶25 This lack of evidence distinguishes this case from other cases
finding underinclusiveness, in which evidence or concessions by the
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
legislature established that other entities not included in the classification
suffered from the problem the legislation endeavored to solve and so
should have been included in the class. See, e.g., State v. Levy’s, 119 Ariz.
191, 192–93, 580 P.2d 329, 330–31 (1978) (relying on “agreed facts” showing
that all business suffered from the problem that the tax exemption offered
only to border businesses was intended to solve); Town of Gilbert v. Maricopa
Cnty., 213 Ariz. 241, 246 ¶¶ 18–19, 141 P.3d 416, 421 (App. 2006) (concluding
that county islands not included in the class also lacked the fire and
emergency services that the legislation provided to a select group of county
islands); In re Marxus B., 199 Ariz. 11, 13–14 ¶¶ 9–12, 13 P.3d 290, 292–93
(App. 2000) (relying on legislative findings that the problem was statewide,
while the statute applied only to two counties); In re Cesar R., 197 Ariz. 437,
439 ¶ 6, 4 P.3d 980, 982 (App. 1999) (same). The case before us more closely
resembles Long, in which the court concluded that counties with fewer than
two million persons were not similarly situated to more populous counties
for the purposes of remedying the problem at hand. Long, 203 Ariz. at 256
¶¶ 28–29, 53 P.3d at 181.
¶26 Plaintiffs also argue that the class here is underinclusive
because community college district governing boards in counties with
fewer than three million people might also benefit by having additional
board members. But this alone does not render a classification
underinclusive. See id. at 256 ¶ 27, 53 P.3d at 181 (“The legislature is not
constrained from enacting class-based legislation merely because non-
members of the class would also derive some benefit from the legislation.”).
The legislature need not tailor the law with absolute precision.3 Plaintiffs
3 In Louisville Gas & Electric Co. v. Coleman, Justice Holmes noted that
legislative line drawing is inherently imprecise:
When a legal distinction is determined, as no one doubts that
it may be, between night and day, childhood and maturity, or
any other extremes, a point has to be fixed or a line has to be
drawn, or gradually picked out by successive decisions, to
mark where the change takes place. Looked at by itself
without regard to the necessity behind it the line or point
seems arbitrary. It might as well or nearly as well be a little
more to one side or the other. But when it is seen that a line
or point there must be, and that there is no mathematical or
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
have not shown that the population line that defines the classification here
is unreasonable or creates an underinclusive class. Thus, we conclude that
the class is legitimate and reasonably includes, at present, the lone member
of the affected class.
3. Elasticity
¶27 The third prong of the test, elasticity, is the sole ground on
which the court of appeals struck down the challenged law. We agree with
that court that the classification here—any county with a population of at
least three million people—is facially elastic. Gallardo I, 691 Ariz. Adv. Rep.
at ___, ¶ 13, 2014 WL 3671571, at *3. It appears “open” in that it permits
“entry of additional persons, places, or things attaining the requisite
characteristics,” and it allows “others to exit the statute’s coverage when
they no longer have those characteristics.” Republic Inv., 166 Ariz. at 150,
800 P.2d at 1258. Counties may achieve the population threshold over time
and, if Maricopa County loses population, it would fall out of the
classification.
¶28 We disagree, however, with the court of appeals’ conclusion
that the elasticity prong requires that it be reasonably probable that
potential class members will enter the class within a particular time. The
court derived this temporal requirement from cases that used language
suggesting such a precondition. See Gallardo I, 691 Ariz. Adv. Rep. at ___
¶ 12, 2014 WL 3671571, at *3. Republic Investment, for example, stated that
the law must “permit[] other individuals or entities to come within the class
. . . within a reasonable time.” 166 Ariz. at 149, 800 P.2d at 1257 (quoting
Petitioners for Deannexation, 160 Ariz. at 472, 773 P.2d at 1031). But in both
Republic Investment and Petitioners for Deannexation, the class under
consideration was already closed when the legislature passed the act in
question. Republic Inv., 166 Ariz. at 147, 151, 800 P.2d at 1255, 1259 (limiting
class to “territory from a city or town having a population of less than ten
thousand persons according to the 1980 United States decennial census”
logical way of fixing it precisely, the decision of the
Legislature must be accepted unless we can say that it is very
wide of any reasonable mark.
277 U.S. 32, 41 (1928) (Holmes, J., dissenting).
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Opinion of the Court
(emphasis omitted)); Petitioners for Deannexation, 160 Ariz. at 469, 773 P.2d
at 1028 (analyzing same law). The cases that Petitioners for Deannexation
cited as the origin of this “reasonable time” phrase similarly offer no
support for implying a temporal requirement. See 160 Ariz. at 472–73, 773
P.2d at 1031–32. Barbee v. Holbrook, 91 Ariz. 263, 371 P.2d 886 (1962),
involved a statute that restricted the class to Santa Cruz County; thus the
class was closed by definition. Arizona Downs and Fund Manager v. Corbin
did not discuss a temporal limitation and focused only on whether the
classifications at issue could have a “broader application in the future.”
Ariz. Downs, 130 Ariz. at 558, 637 P.2d at 1061; Fund Manager, Pub. Safety
Pers. Ret. Sys. v. Corbin, 161 Ariz. 348, 359–60, 778 P.2d 1244, 1255–56 (App.
1988).
¶29 The court of appeals’ assertion that “the conditions that
permit entry into the class must ‘be not only possible, but reasonably
probable, of attainment,’” Gallardo I, 691 Ariz. Adv. Rep. at 39 ¶ 12, 2014
WL 3671571, at *3 (quoting Republic Inv., 166 Ariz. at 150, 800 P.2d at 1258),
also comes from Petitioners for Deannexation, which in turn took the phrase
from Bravin v. Mayor of Tombstone, 4 Ariz. 83, 90, 33 P. 589, 590 (1893). Like
the classes in Republic Investment and Petitioners for Deannexation, though,
the class in Bravin was closed when the law was passed, as it was restricted
to cities in which fewer than six hundred people voted in an election
already held. Id. at 88, 33 P. at 590 (limiting class to “all cities . . . in which
the total vote cast at the general election held therein on the fourth day of
November, 1890, was less than six hundred”). Thus future entry into the
class was not only unlikely, it was impossible: Cities either had the
requisite population when the law was passed or they did not. Thus any
suggestion that entry of others into the class must be “reasonably probable”
of attainment was dictum.
¶30 Republic Investment’s statements that “[t]o decide whether a
statute legitimately classifies, [courts must] consider the actual probability
that others will come under the act’s operation when the population
changes,” and if “the prospect is only theoretical, and not probable, we will
find the act special or local in nature,” 166 Ariz. 151, 800 P.2d at 1259, can
be also traced to Bravin, 4 Ariz. at 90, 33 P. at 590, which cited Sutherland’s
Treatise on Statutory Construction. 2 Sutherland Statutory Construction
§ 40:9 (“Some opinions suggest that courts look to the actual probability of
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GALLARDO V. STATE OF ARIZONA
Opinion of the Court
[population increases] and will hold an act invalid where such a prospect is
only theoretical and not practical.” (emphasis added)). But because the class
in Bravin, like the class in Republic Investment, was closed, any suggestion
that this Court adopted an “actual probability” requirement was
unnecessary to the holding, and therefore dictum. This requirement should
focus on the probability that a potential class member will “come under the
act’s operation when the population changes,” not on the likelihood that
the population will change. Republic Inv., 166 Ariz. at 151, 800 P.2d at 1259.
Here, petitioners have not questioned that when any county reaches the
population threshold, it will come within the class.
¶31 The question in cases like Republic Investment, Petitioners for
Deannexation, and Bravin, was whether each class would remain open long
enough to allow a realistic opportunity for others to join the class. In each
case, because the eligibility window had already closed, no such
opportunity existed. It was against this background that the “probability
of entry” statements were made. These courts were not creating a rule that
future entry must occur within a particular time. Nonetheless, we
understand how courts could have relied on such statements to imply an
additional requirement in order to meet elasticity.
¶32 Since Republic Investment, the court of appeals has cited that
decision’s dictum to find classifications inelastic based on the unlikelihood
that entities would enter a class within a reasonable time. See Town of
Gilbert, 213 Ariz. at 247 ¶¶ 22–23, 141 P.3d at 422 (finding that the remote
possibility that any county island might join the class in nineteen years does
not satisfy the elasticity requirement); In re Cesar R., 197 Ariz. at 440 ¶¶ 10–
11, 4 P.3d at 983 (finding that ten years does not satisfy the elasticity
requirement); In re Marxus B., 199 Ariz. at 14 ¶ 14, 13 P.3d at 293
(interpreting the same statute as in In re Cesar R. and approving of its
finding on elasticity). The findings regarding elasticity, however, were
unnecessary in each case because the panel had already found that the
statute at issue failed the inclusiveness prong of the Republic Investment test.
Town of Gilbert, 213 Ariz. at 246 ¶¶ 17–19, 141 P.3d at 421; In re Cesar R., 197
Ariz. at 440 ¶ 11, 4 P.3d at 983; In re Marxus B., 199 Ariz. at 14 ¶ 11, 13 P.3d
at 293. In such a situation, the court need not have ruled on elasticity at all.
See Republic Inv., 166 Ariz. at 149, 800 P.2d at 1257 (suggesting that failure
to meet one part dooms the statute under special laws analysis).
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¶33 As the court of appeals’ concurring opinion in this case noted,
courts have been unable to incorporate a probability or temporal element
into the elasticity requirement in any discernibly consistent way. See
Gallardo I, 691 Ariz. Adv. Rep. at ___ ¶ 22, 2014 WL 3671571, at *6 (Howe,
J., specially concurring) (comparing Town of Gilbert, 213 Ariz. at 247 ¶¶ 22–
23, 141 P.3d at 422 (finding nineteen years too long to satisfy elasticity
requirement), and In re Cesar R., 197 Ariz. at 440 ¶¶ 9–11, 4 P.3d at 983
(finding ten years too long), with Long, 203 Ariz. at 258 ¶ 38, 53 P.3d at 183
(upholding law with a population threshold of two million without
considering how long it might take any county to achieve that population)).
We agree and therefore now disavow any suggestion that entry into the
class within a particular time is a requirement of the elasticity prong of the
special-laws analysis. Such a temporal component would preclude using
population classifications to protect uniquely large or small jurisdictions
unless the legislature expands the class to cover or allow immediate entry
of other members that may not need the law’s protections.
¶34 While the imposition of a temporal reference may have arisen
to preclude pretextual classifications that mask an underlying
discriminatory intent—a valid concern—adding a temporal requirement
does not allay that concern. For if, instead of setting a county population
threshold at three million, the legislature set the cutoff at 1.5 million, such
a limit would likely satisfy the reasonable time analysis, even though the
legislature could in the future raise the threshold. The concern about the
legitimacy of the classification is better addressed in the analysis of the
rational basis and inclusiveness prongs of the Republic Investment test than
in the elasticity prong.
¶35 We reaffirm our holding in Republic Investment that the
elasticity requirement is met when the statute looks to broader application
in the future, no matter how imminent the application might be, and allows
“persons, places, or things attaining the requisite characteristics” to enter
and those that “no longer have those characteristics” to leave the class. 166
Ariz. at 150, 800 P.2d at 1258; see also Luhrs v. City of Phoenix, 52 Ariz. 438,
451, 83 P.2d 283, 289 (1938) (elasticity met by statute that “contemplate[s]
that cities in the future that attain the stipulated requisite conditions
automatically come within the terms of the law”); Long, 203 Ariz. at 258
¶ 38, 53 P.3d at 183 (“[A]ny county may seemingly enter the class upon
14
GALLARDO V. STATE OF ARIZONA
Opinion of the Court
achieving the requisite population and may exit upon falling below that
level.”).
¶36 We conclude that the class here is facially and functionally
elastic. Any county that attains the stated size will join the class, even
though none likely will do so in the near future, and any county whose
population falls below three million will leave the class. Rather than
focusing on the imminence or likelihood of accomplishment, courts should
focus on whether, once a county attains the population threshold, it will
share the characteristics of the classification and fall within the class.
III. CONCLUSION
¶37 Having found the three parts of the Republic Investment test
satisfied here, we hold that A.R.S. § 15-1441(I) does not violate the special
laws provision of article 4, part 2, section 19 of the Arizona Constitution.
We vacate the opinion of the court of appeals and affirm the judgment of
the superior court.
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