Forty-Seventh Legislature v. Napolitano

SUPREME COURT OF ARIZONA
En Banc

THE FORTY-SEVENTH LEGISLATURE OF )
THE STATE OF ARIZONA; THE )
ARIZONA STATE SENATE; THE )
ARIZONA HOUSE OF REPRESENTATIVES; )
KEN BENNETT, individually and as )
President, Arizona State Senate; ) Arizona Supreme Court
and JAMES P. WEIERS, individually ) No. CV-06-0079-SA
and as Speaker, Arizona House of )
Representatives, )
)
Petitioners, ) O P I N I O N
)
v. )
)
JANET NAPOLITANO, Governor of )
the State of Arizona; ARIZONA )
DEPARTMENT OF ADMINISTRATION and )
WILLIAM BELL, Director; and )
ARIZONA STATE PERSONNEL BOARD )
and JEFF GRANT, Chair, )
)
Respondents. )
)
__________________________________)

Special Action

JURISDICTION ACCEPTED; RELIEF GRANTED
________________________________________________________________

MEAGHER & GEER, P.L.L.P. Scottsdale
By Gary L. Lassen
Thomas H. Crouch
Attorneys for the 47th Legislature of the State of Arizona, the
Arizona State Senate, the Arizona House of Representatives, Ken
Bennett, and James P. Weiers

OFFICE OF THE GOVERNOR Phoenix
By Timothy A. Nelson, General Counsel
Nicole C. Davis, Deputy General Counsel

And

PERKINS COIE BROWN & BAIN P.A. Phoenix
By Paul F. Eckstein
Joel W. Nomkin
Charles A. Blanchard
Lee Stein
Attorneys for Governor Janet Napolitano

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary O’ Grady, Solicitor General
Attorneys for Arizona Department of Administration and William
Bell, Director, and Arizona State Personnel Board and Jeff
Grant, Chair

RYLEY CARLOCK & APPLEWHITE Phoenix
By N. Warner Lee
John M. Fry
Attorneys for Amicus Curiae National Conference of State
Legislatures

OSBORN MALEDON, P.A. Phoenix
By Diane M. Johnsen
Thomas L. Hudson
Diane M. Meyers
Attorneys for Amicus Curiae National Governors Association

M c G R E G O R, Chief Justice

¶1 This case requires us to decide whether the

gubernatorial veto of a portion of a bill related to state

employee compensation exceeded the Governor’s item veto power

under Article 5, Section 7 of the Arizona Constitution. We

conclude that the vetoed provision is not an item of

appropriation subject to the gubernatorial item veto.

I.

¶2 On January 25 and 26, 2006, the Forty-seventh

Legislature (the Legislature) passed House Bill 2661 (HB 2661)

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as an emergency measure.1 Section 1 of HB 2661 expressed the

Legislature’s intent to grant state employees a pay raise, and

Section 6 appropriated money for employee salary adjustments.

HB 2661, 47th Leg., 2d Reg. Sess. (Ariz. 2006). Section 5 of HB

2661 (Section 5) amended Arizona Revised Statutes (A.R.S.)

section 41-771 (2004) and exempted certain employees hired after

December 31, 2006, from the state merit system. Id.

¶3 On January 30, 2006, the Governor vetoed a portion of

Section 5.2 The Governor’s veto message stated that the item

“would have created an additional expense to the state” because

exempt employees accrue leave differently than do merit system

employees.

¶4 On February 2, 2006, by separate votes, each chamber

of the Legislature authorized its presiding officer to bring an

action on behalf of the Legislature to challenge the

constitutional validity of the Governor’s item veto of Section

5. Senate President Ken Bennett and Speaker of the House James

Weiers then brought this special action, acting both

individually and on behalf of the Legislature.

1
The Arizona Constitution requires a two-thirds vote in each
legislative chamber to pass a bill as an emergency measure.
Ariz. Const. art. 4, pt. 1, § 1(3).
2
The Governor item vetoed the portion of Section 5 that
adopted a substantive change to A.R.S. § 41-771 by adding a new
class of employees to those exempt from the state merit system.
The Governor left intact the remaining minor legislative changes
made by Section 5.

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II.

¶5 In deciding whether to accept jurisdiction of this

special action, we consider several questions. Because

resolution of some of these questions turns on whether this

action involves legal or political issues, we define first the

nature of the issues raised.

¶6 The Legislature asks us to determine whether Section 5

constitutes an “item of appropriation of money” within the

meaning of Article 5, Section 7 of the Arizona Constitution.

The Legislature argues that if the provision is not an item of

appropriation, then the Governor’s item veto power under the

Arizona Constitution does not extend to Section 5. These

issues, asserts the Legislature, are purely legal issues and

appropriate for this Court’s consideration. The Governor, in

contrast, argues that we can resolve the issues presented only

by entering the political arena and that the Legislature has

attempted to transform a political dispute into a constitutional

question.

¶7 “Political questions,” broadly defined, involve

decisions that the constitution commits to one of the political

branches of government and raise issues not susceptible to

judicial resolution according to discoverable and manageable

standards. See Baker v. Carr, 369 U.S. 186, 217 (1962). A

determination that an issue is a political question is “very

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different from determining that specific [governmental] action

does not violate the Constitution. That determination is a

decision on the merits that reflects the exercise of judicial

review, rather than the abstention from judicial review that

would be appropriate in the case of a true political question.”

U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 458 (1992). A

governor’s decision whether to exercise a veto and a

legislature’s decision whether to attempt to override a veto

clearly are political questions; both involve decisions

committed to their respective branches of government. This

case, however, does not involve a comparable decision because it

asks us to decide whether the constitution permitted the

Governor to exercise her veto power. The political question

doctrine, therefore, provides no basis for judicial abstention

in this matter.

¶8 We agree with the Legislature that this petition

presents purely legal questions. To determine whether a branch

of state government has exceeded the powers granted by the

Arizona Constitution requires that we construe the language of

the constitution and declare what the constitution requires.

Such questions traditionally fall to the courts to resolve. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)

(recognizing that “[i]t is emphatically the province and duty of

the judicial department to say what the law is”). Although each

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branch of government must apply and uphold the constitution, our

courts bear ultimate responsibility for interpreting its

provisions. See State v. Casey, 205 Ariz. 359, 362 ¶ 8, 71 P.3d

351, 354 (2003) (stating that interpretation of the state

constitution is the courts’ province).

¶9 Our conclusion that determining the validity of an

item veto presents a justiciable legal issue breaks no new legal

ground. We have, on many occasions, considered whether

particular gubernatorial actions exceeded a governor’s

constitutional authority. See, e.g., Rios v. Symington, 172

Ariz. 3, 5, 833 P.2d 20, 22 (1992) (reviewing a legislator’s

challenge to gubernatorial item vetoes); Black & White Taxicab

Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139 (1923)

(reviewing governor’s veto of the legislature’s tax imposition);

Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923) (accepting

jurisdiction to determine the scope of the governor’s veto

power); Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773 (1915)

(reviewing governor’s item veto of part of a general

appropriations bill). In deciding whether to accept

jurisdiction and resolve the substantive issues raised in this

action, therefore, we begin with the understanding that the

action raises legal, not political, issues.

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A.

¶10 This Court has original jurisdiction to issue

extraordinary writs against state officers. Ariz. Const. art.

6, § 5; Rios, 172 Ariz. at 5, 833 P.2d at 22. A party seeking

such relief must proceed by way of a special action. See Ariz.

R.P. Spec. Act. 1. As we noted in Rios, “[i]n limited

circumstances, a judicial proceeding by way of special action

may be appropriate to test the constitutionality of executive

conduct.” 172 Ariz. at 5, 833 P.2d at 22. We thus have

jurisdiction to grant the requested relief.

¶11 Whether to accept jurisdiction, however, remains a

highly discretionary decision. State Bar Committee Note, Ariz.

R.P. Spec. Act. 3; see also McKaney v. Foreman ex rel. County of

Maricopa, 209 Ariz. 268, 275 ¶ 35, 100 P.3d 18, 25 (2004). In

this case, several factors argue in favor of accepting

jurisdiction. The issues presented are of public importance:

Limiting the actions of each branch of government to those

conferred upon it by the constitution is essential to

maintaining the proper separation of powers. See Ariz. Const.

art. 3 (stating that Arizona’s three branches of government

“shall be separate and distinct, and no one of such departments

shall exercise the powers properly belonging to either of the

others”). Moreover, we last considered the scope of the

Governor’s item veto authority fifteen years ago in Rios, and

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the two political branches obviously disagree in good faith

about the scope and meaning of that opinion, making the issues

raised here likely to recur.3 Because of these exceptional

circumstances, we conclude that this is one of those rare cases

that justify the exercise of our special action jurisdiction.

B.

¶12 The fact that this action raises issues appropriate

for our consideration does not end our inquiry. We next

consider whether the Legislature has standing to bring this

action. Although “we are not constitutionally constrained to

decline jurisdiction based on lack of standing,” Sears v. Hull,

192 Ariz. 65, 71 ¶ 24, 961 P.2d 1013, 1019 (1998), “[c]oncern

over standing is particularly acute” when “legislators challenge

actions undertaken by the executive branch,” Bennett v.

Napolitano, 206 Ariz. 520, 525 ¶ 20, 81 P.3d 311, 316 (2003).

Good reason exists for our caution: “Without the standing

requirement, the judicial branch would be too easily coerced

into resolving political disputes between the executive and

legislative branches, an arena in which courts are naturally

reluctant to intrude.” Bennett, 206 Ariz. at 525 ¶ 20, 81 P.3d

at 316.

¶13 The Governor argues that these petitioners, like those

in Bennett, lack standing. In Bennett, four state legislators,

3
See cases cited supra ¶ 9.

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including the President of the Senate and the Speaker of the

House of Representatives, brought a special action to challenge

the governor’s veto of specific items in a general

appropriations bill. Id. at 522 ¶ 3, 81 P.3d at 313. They

alleged, as do these petitioners, that the governor had exceeded

her veto authority under the Arizona Constitution. Id. We held

that the legislators lacked standing as individuals because they

failed to show any particularized injury: “[N]o legislator’s

vote was nullified by interference in the legislature” and the

injury claimed was, “at most, an institutional injury.” Id. at

526 ¶¶ 24, 26, 81 P.3d at 317. The legislators also failed to

establish standing to assert a claim of injury to the

legislature as a whole, because the four members of the

legislature “ha[d] not been authorized by their respective

chambers to maintain th[e] action.” Id. at 526-27 ¶¶ 24, 29, 81

P.3d at 317-18. Failing to find any prudential concerns that

compelled a consideration of the merits, we concluded that

Bennett was “not the rare case in which waiver of standing [was]

proper.” Id. at 527 ¶ 31, 81 P.3d at 318.

¶14 The situation here differs in several significant

respects from that in Bennett. First, in contrast to Bennett,

here the Legislature has alleged a particularized injury to the

legislative body as a whole. The United States Supreme Court

considered a similar situation in Coleman v. Miller, 307 U.S.

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433 (1939),4 an action brought by twenty-one state senators,

twenty of whom had voted against ratifying a proposed

constitutional amendment. Id. at 436. Because twenty senators

also had voted for the amendment, the matter failed to pass.

Id. The lieutenant governor broke the tie by voting in favor of

the resolution, and the twenty senators opposed to ratification

alleged that the lieutenant governor’s vote exceeded his

authority. Id. The Court held that the bloc of legislators who

voted against ratification had standing to bring the action

because their combined votes, sufficient absent the executive

vote to defeat ratification, had “been overridden and virtually

held for naught . . . .” Id. at 438; cf. Raines v. Byrd, 521

U.S. 811, 821-22 (1997) (characterizing Coleman as holding that

legislators who sued as a bloc and had sufficient votes to

defeat legislative action had standing to assert a claim of

institutional injury). The circumstances we consider here are

analogous.

¶15 A majority of the members of the legislature can pass

legislation, Ariz. Const. art. 4, pt. 2, § 15, subject to the

governor’s veto power. If, as the Legislature asserts, the

Governor’s item veto was unconstitutional and thus invalid, the

4
Although federal jurisprudence on issues of standing does
not bind this Court, we regard federal decisions as instructive.
Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 22, 81 P.3d 311, 316
(2003).

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Legislature’s right to have the votes of a majority given effect

has been overridden and the Legislature, as an institution, has

sustained a direct injury to its authority to make and amend

laws by a majority vote.

¶16 Second, we held in Bennett that four of ninety

legislators could not bring an action that allegedly belonged to

the legislature as a whole “without the benefit of legislative

authorization . . . .” 206 Ariz. at 527 ¶ 29, 81 P.3d at 318.

In this case, both the House of Representatives and the Senate

authorized the Forty-seventh Legislature to challenge the

Governor’s item veto of Section 5 of HB 2661, making it clear

that the Legislature as a body intended to challenge the

Governor’s action.5

¶17 Contrary to the Governor’s arguments, the

Legislature’s failure to attempt to override the item veto does

not preclude a finding that it has standing to bring suit. In

Bennett, we considered the legislature’s failure to attempt an

override as a prudential concern that indicated we should not

waive the lack of standing present there. Id. at ¶ 34. In this

5
The Senate President and House Speaker also seek standing
as individuals. We previously rejected the argument that the
President and the Speaker have standing to bring suit as
individuals on behalf of the entire legislative body. See
Bennett, 206 Ariz. at 526-27 ¶ 28, 81 P.3d at 317-18 (holding
that legislators lacked standing as individuals to litigate a
claim of the legislature as a whole).

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case, if the Governor did, in fact, exceed her item veto

authority, the Legislature should not be put to the task of

attempting to override an invalid veto before being able to

challenge an allegedly unauthorized action in court. The

alleged injury to the Legislature as a body occurred, if at all,

when the Governor vetoed legislation approved by a majority of

each house. The existence of the injury does not depend upon

and is not affected by whether the Legislature attempted to

override the veto.

¶18 Based on these circumstances, we conclude that the

Legislature has alleged a direct institutional injury and has

standing to challenge the validity of the Governor’s item veto

of Section 5 of HB 2661.6

III.

¶19 Article 5, Section 7 of the Arizona Constitution

defines the governor’s item veto power. Under the terms of the

constitution, the governor may veto “items of appropriations of

money . . . while approving other portions of [a] bill.” Ariz.

Const. art. 5, § 7. An appropriation is “the setting aside from

the public revenue of a certain sum of money for a specified

6
Because we find that the Legislature as a whole has
established standing to bring suit, we need not address the
prudential concerns outlined in Bennett, 206 Ariz. at 527-29 ¶¶
31-40, 81 P.3d at 318-20, which allow us to waive the standing
requirement.

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object, in such manner that the executive officers of the

government are authorized to use that money, and no more, for

that object, and no other.” Rios, 172 Ariz. at 6, 833 P.2d at

23 (quoting Hunt v. Callaghan, 32 Ariz. 235, 239, 257 P. 648,

649 (1927)) (internal quotation marks omitted). “[N]o specific

language is necessary to make an appropriation, for the test is

. . . whether or not the people have expressed an intention that

the money in question be paid.” Windes v. Frohmiller, 38 Ariz.

557, 560, 3 P.2d 275, 276 (1931).

¶20 The setting aside of a certain sum of public revenue

can occur in two ways: The legislature can authorize spending

from the general fund or it can authorize payments of

ascertainable amounts from a special fund.7 See Crane v.

Frohmiller, 45 Ariz. 490, 499, 45 P.2d 955, 959 (1935); accord

Ryan v. Riley, 223 P. 1027, 1029 (Cal. Dist. Ct. App. 1924)

(noting that an “appropriation must be specific both as to

purpose and amount”). If the legislature chooses to appropriate

public revenues by setting aside monies from a defined special

fund, “no limit need be stated in the act authorizing the

expenditures and specifying for what purpose the money is to be

expended.” Crane, 45 Ariz. at 499, 45 P.2d at 959; see also

7
Neither side suggests that the Rios discussion of
reductions to or transfers from previously made appropriations,
see Rios v. Symington, 172 Ariz. 3, 8-9, 833 P.2d 20, 25-26
(1992), applies to the facts of this case.

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Rios, 172 Ariz. at 8, 833 P.2d at 25 (holding that creation of

several special funds were appropriations although the enabling

statutes did not themselves specify a sum certain).

¶21 Section 5 amends A.R.S. § 41-771, the statute that

identifies those groups of employees who are exempt from the

state merit system. It adds “correctional officers and juvenile

correctional officers, state officers and employees who are

appointed or employed after December 31, 2006 and who are at a

pay grade of twenty-four or above” to the class of exempt

employees.

¶22 On its face, Section 5 fails to set aside any sum from

the general fund. That fact, however, does not preclude finding

that the statute constitutes an item of appropriation if it sets

aside revenue from some other specific limited source. In Rios,

for example, we held that A.R.S. § 41-511.26 was an

appropriation because when viewed in conjunction with the

federal statute, the vetoed section “authorize[d] the creation

of a fund” and granted authority to spend the monies in that

fund. 172 Ariz. at 8, 833 P.2d at 25. We concluded that

although section 41-511.26 did not specify a sum on its face,

the legislative intent to set aside a certain sum for a

specified object was clear when we viewed the statute in

conjunction with the federal statute incorporated into the text

of section 41-511.26. Id.

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¶23 Unlike the provisions considered in Rios, Section 5

fails to specify any fund from which payment for accrued leave

or, more generally, payment to exempt employees may be made.

Instead, it merely defines a class of employees that will be

excluded from the state merit system.

¶24 The Governor argues that this failure to set aside

funds does not disqualify Section 5 from being an appropriation

because the “combined effect of the vetoed language and the

employment practices statutes [in Title 23] . . . turns the

vetoed language into a spending authorization.” She asserts

that, under current administrative regulations, exempt employees

accrue more leave than do merit system employees and, because

the state must pay separating employees for accrued leave,

Section 5 will impose additional costs to the state unrelated to

employee salaries.

¶25 As the Governor correctly points out, A.R.S. § 23-

353.B (1995) requires that an employee be paid “in the usual

manner all wages due [to] him” upon leaving the service of an

employer, and A.R.S. § 23-350.5 (1995) defines wages as

including vacation pay. The statutes, therefore, do obligate

the state to make certain payments to separating employees. The

Governor’s argument, however, incorrectly equates the obligation

imposed by the statutes with an appropriation to fulfill the

obligation. See Crane, 45 Ariz. at 498, 45 P.2d at 959 (“A

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promise to make an appropriation is not an appropriation. . . .

The utmost that can be claimed for the act under consideration

is that it pledges the good faith of the state to the making of

an appropriation.”); Millett v. Frohmiller, 66 Ariz. 339, 344,

188 P.2d 457, 461 (1948) (noting that statute authorizing agency

to employ persons did not itself constitute an appropriation).

The employment statutes may obligate the state to make certain

payments, but they do not set aside any sum of money from the

public revenue and thus cannot be regarded as making an

appropriation.8

¶26 In this case, Section 5, even when considered in

conjunction with other statutes, does not set aside a defined

amount of public revenue from any specific funding source. We

8
Even the alleged fiscal impact of Section 5 results not
from the statute but rather from state administrative rules and
regulations and from employee manuals adopted by the executive
branch. See Ariz. Admin. Code (A.A.C.) R2-5-403.B (non-exempt
employees accrue annual leave from 3.7 hours to 6.47 hours bi-
weekly, based on the number of years of service); A.A.C. R2-5-
403.D (non-exempt employees may accrue up to 240 hours of
compensatory leave each calendar year); Arizona Department of
Administration, Human Resources Policies and Procedures (ADOA
Manual), art. 4, § B (2004), available at
http://www.hr.state.az.us/Homepagelinks/policies/content.htm
(exempt employees accrue annual leave at a rate of 6.47 hours bi-
weekly and have a maximum accrual of 320 hours of annual leave
per calendar year). Because the amount of annual leave to which
employees, both exempt and non-exempt, are entitled is defined
in administrative rules and procedures rather than by statute,
see A.A.C. R2-5-403; ADOA Manual, art. 4, § B, the fiscal impact
of Section 5 derives from matters committed to the executive
branch, see A.R.S. § 41-703 (2004) (indicating that the governor
oversees the direction, control, and operation of the Department
of Administration).

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conclude, therefore, that Section 5 was not subject to the

Governor’s item veto power.

IV.

¶27 Because Section 5 of HB 2661 is not an appropriation,

the Governor’s item veto of that provision exceeded her

constitutional authority and is invalid. Accordingly, we order

that Section 5 be given full force and effect.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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