Steve May v. Hon. Colleen mcnally/betsey Bayless

SUPREME COURT OF ARIZONA
En Banc

STEVE MAY, ) Arizona Supreme Court
) No. CV-02-0215-PR
Petitioner,)
)
v. ) Court of Appeals
) Division One
HON. COLLEEN A. McNALLY, Judge ) No. 1 CA-SA 02-0073
of the SUPERIOR COURT OF THE )
STATE OF ARIZONA, in and for the )
County of Maricopa, ) Maricopa County
) Superior Court
Respondent Judge,) No. CV 2001-006078
)
BETSEY BAYLESS, as Secretary of )
the State of Arizona, acting in )
her official capacity; CAROL ) O P I N I O N
SPRINGER, as Treasurer of the )
State of Arizona, acting in her )
official capacity; and the )
CITIZENS CLEAN ELECTIONS )
COMMISSION; and ARIZONANS FOR )
CLEAN ELECTIONS, )
)
Real Parties in Interest.)
)

Special Action from the Superior Court of Maricopa County
The Honorable Colleen A. McNally, Judge
JUDGMENT AFFIRMED

Court of Appeals, Division One
203 Ariz. 13, 49 P.3d 285 (App. 2002)
OPINION VACATED

INSTITUTE FOR JUSTICE ARIZONA CHAPTER Phoenix
by Clint Bolick
and Timothy D. Keller
Thomas P. Liddy
Attorneys for Petitioner
THOMAS P. PROSE, Acting Arizona Attorney Phoenix
General in this case and Chief
Assistant Attorney General
by Kathleen P. Sweeney, Assistant Attorney General
and Todd F. Lang, Assistant Attorney General
Attorneys for Real Party in Interest
Citizens Clean Elections Commission

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
by Timothy M. Hogan
and
THE BRENNAN CENTER FOR JUSTICE AT New York, NY
NEW YORK UNIVERSITY SCHOOL OF LAW
by Elizabeth Daniel
Attorneys for Real Party in Interest
Arizonans for Clean Elections

PACIFIC LEGAL FOUNDATION Sacramento, CA
by Deborah J. La Fetra
Attorneys for Amicus Curiae Pacific Legal Foundation

B E R C H, Justice

¶1 In the 1998 general election, Arizona voters approved the

Citizens Clean Elections Act to “encourage citizen participation in

the political process, and . . . promote freedom of speech under

the U.S. and Arizona Constitutions,” and to “create a clean

elections system that will improve the integrity of Arizona state

government by diminishing the influence of special-interest money.”

Ariz. Rev. Stat. (“A.R.S.”) § 16-940(A) (Supp. 2001). The Act

provides public financing for the campaigns of qualifying

candidates for certain elected offices. See id. §§ 16-940 to -961

(Supp. 2001). This case presents a challenge to the Act’s key

funding provision.

¶2 The Act created the Citizens Clean Election Commission

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(“CCEC”), which oversees the disbursement of funds to qualifying

candidates. To fund the campaigns of “clean elections” candidates,

the CCEC collects funds from four sources: voluntary contributions

to the fund, funds earmarked through a “check-off” provision on

state income tax returns, a fee on certain registered lobbyists,

and a ten percent surcharge on civil and criminal fines. Id. §§

16-944, 16-954(A)-(C). We are asked to determine whether the ten

percent surcharge on criminal and civil fines required by A.R.S. §

16-954(C) violates the First Amendment by impermissibly compelling

those who pay the fines to support the speech of political

candidates whom they might not otherwise support. We hold that it

does not.

BACKGROUND

¶3 Petitioner Steve May, then an Arizona state legislator,

received a parking ticket and was fined $27, on which a ten percent

surcharge authorized by the Act was assessed. May refused to pay

the $2.70 surcharge, claiming that doing so would violate his First

Amendment right to free speech because the money might be used to

fund the campaigns of candidates whose views he opposed. He also

challenged the fee on registered lobbyists.

¶4 May filed a federal court action, which was dismissed on

the ground that the Tax Injunction Act, 28 U.S.C. § 1341, deprived

the court of subject matter jurisdiction. See Lavis v. Bayless,

No. CIV 99-1627 (D. Ariz. Mar. 13, 2001). He then filed his action

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in Maricopa County Superior Court, urging the state courts to find

the Act unconstitutional. The Citizens Clean Elections Commission

and Arizonans for Clean Elections, the group that sponsored the

initiative, intervened in support of the Act’s constitutionality.

The trial court upheld the constitutionality of the surcharge on

civil and criminal fines, but invalidated the fee assessed against

certain registered lobbyists. May v. Bayless, No. CV 2001-006078

(Mar. Cnty. Super. Ct. Apr. 2, 2002). The latter ruling was not

appealed.

¶5 The court of appeals reversed, finding the surcharge an

unconstitutional restraint on free speech and enjoining the State

from imposing it. May v. McNally, 203 Ariz. 13, 49 P.3d 285 (App.

2002).

¶6 We stayed the court of appeals opinion and granted review

to determine whether the surcharge provision of the Clean Elections

Act impermissibly compels political speech of the surcharge payers,

in violation of the First Amendment’s guarantee of freedom of

speech.

DISCUSSION

¶7 Our analysis is framed by the United States Supreme

Court’s opinion in Buckley v. Valeo, 424 U.S. 1, 92-93 (1976),

which recognized that government may properly use public funds to

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establish a system of campaign financing.1 In Buckley, the Court

considered, among other issues, the constitutionality of the

Presidential Election Campaign Fund, a provision of the Federal

Election Campaign Act of 1971 that allowed taxpayers a one dollar

check-off on income tax returns that resulted in a dollar-for-

dollar allocation out of the general fund to qualifying

presidential candidates. Id. at 86-87.

¶8 Those opposing the Presidential Campaign Fund argued that

they should be allowed to designate the candidate to whom their

dollar contribution would go. But the Court disagreed, noting that

the campaign fund “is like any other appropriation from the general

revenue except that its amount is determined [by the number of

check-offs].” Id. at 91. The fact that the contributions stemmed

from a voluntary check-off “does not constitute the appropriation

any less an appropriation by Congress.” Id. Rather, the “check-

off is simply the means by which Congress determines the amount of

its appropriation.” Id. at 91 n.124. The Court was not moved by

the taxpayers’ objection to the potential use of the funds for

candidates the taxpayers opposed. It noted that every

congressional appropriation “uses public money in a manner to which

some taxpayers object.” Id. at 92.

1
Accord Little v. Florida Dep’t of State, 19 F.3d 4, 5
(11th Cir. 1994) (holding that financing campaigns with public
funds does not violate First Amendment); Libertarian Party v.
Packard, 741 F.2d 981, 989-90 (7th Cir. 1984) (same).

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¶9 The Court determined that the check-off provision of the

Presidential Campaign Fund did not implicate the First Amendment

because the provision was designed to use public money “not to

abridge, restrict, or censor speech, but rather . . . to facilitate

and enlarge public discussion and participation in the electoral

process, goals vital to a self-governing people.” Id. at 92-93.

Accordingly, the Court concluded, public funding of presidential

campaigns “furthers, not abridges, pertinent First Amendment

values.” Id. at 93.

¶10 Buckley thus affirms the proposition that the public

financing of political candidates, in and of itself, does not

violate the First Amendment, even though the funding may be used to

further speech to which the contributor objects.2

¶11 May nonetheless maintains that, despite Buckley’s general

approval of public financing of political campaigns, three cases

decided by the Court after Buckley compel a different result in the

case before us. Those cases – Abood, Keller, and United Foods –

hold that discrete groups of individuals cannot be compelled to

fund speech that they find objectionable unless that speech is

germane to the group’s purpose. May urges that the Abood line of

2
Indeed, Buckley suggests that Congress could have funded
the Federal Election Campaign Act out of the general revenue
regardless of whether the funding system included the voluntary
check-off provision, see 424 U.S. at 91-92, and May concedes that
if the money had gone into the general fund and could not be traced
to any individual, there would be no constitutional problem.

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cases should guide our inquiry.

¶12 In Abood v. Detroit Board of Education, 431 U.S. 209

(1977), non-union schoolteachers were required to pay a service

charge to the teachers’ union. The union used the money for

several purposes, including funding political and ideological

activities that some non-union teachers found objectionable. Id.

at 212-13. The Court held that unions could spend union dues to

support political candidates and causes, but could use only “such

expenditures . . . from charges, dues, or assessments paid by

employees who do not object to advancing those ideas and who are

not coerced into doing so against their will by the threat of loss

of governmental employment.” Id. at 235-36.

¶13 Similarly, in Keller v. State Bar of California, 496 U.S.

1 (1990), California lawyers were required to join the state bar

association and pay dues as a condition of practicing law in the

state. As it had in Abood, the Court held that an organization

such as a bar association, in which membership is a condition of

employment, may use funds generated from mandatory membership fees

for activities “germane” to the organization, but it could not use

those funds to advocate or support ideological viewpoints “not

‘germane’ to the purpose for which compelled association was

justified.” Id. at 13.

¶14 Finally, in United States v. United Foods, Inc., 533 U.S.

405 (2001), the Court invalidated fees charged to mushroom handlers

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to fund advertisements promoting mushroom sales because the speech

was not germane to a larger regulatory purpose of the association.

¶15 The Abood line of cases instructs that government may not

condition involuntarily associated individuals’ opportunity to

receive a benefit or ply their trade or profession upon their

compelled support of speech with which they disagree. We note,

however, that no benefit is being conditioned upon the payment of

the surcharge at issue here, nor is payment of the surcharge a

precondition to employment. The opportunity to commit a crime or

park illegally is not deserving of the same protection as is the

opportunity to participate in lawful activity contemplated by the

Supreme Court in the Abood line of cases.

¶16 Importantly, the “germaneness test” derived from the

Abood line of cases is predicated upon the existence of an

association. An association is a “gathering of people for a common

purpose; the persons so joined.” BLACK’S LAW DICTIONARY 119 (7th ed.

1999). In this case, the surcharge payers have not joined together

for a common purpose. At best, the group consists of tens of

thousands of otherwise unrelated individuals who, at one time or

another, paid a civil or criminal fine. Indeed, May conceded at

oral argument and in his brief that “there is no association.”

This stands in sharp contrast to the associations in Abood, Keller,

and United Foods, whose members were linked by a common purpose.

The Act, then, does not create an association of fine payers, and

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without an association by which to measure the germaneness of the

speech, the Abood analysis is inapplicable.

¶17 Finally, and critically, the speech in Abood, Keller, and

United Foods was viewpoint driven. In all three cases, the

organization chose the funded speech based on its content. Thus,

the objectors were compelled to be associated with a group message

with which they disagreed. Here, the Clean Elections Act allocates

money to all qualifying candidates, regardless of party, position,

or message, see A.R.S. § 16-951, and thus the surcharge payers are

not linked to any specific message, position, or viewpoint. The

viewpoint neutrality of the disposition of funds distinguishes this

case from Abood, Keller, and United Foods. We therefore conclude

that the Abood line of cases does not control the disposition of

this case.

¶18 The Real Parties in Interest urge us instead to apply

the analysis in Board of Regents v. Southworth, 529 U.S. 217

(2000), in assessing the constitutionality of the Clean Elections

Act. In Southworth, a state university allocated part of a

mandatory student fee, on a viewpoint-neutral basis, to various

student organizations engaged in ideologically expressive

activities. Id. at 222-24. To qualify for funding, student

organizations had to agree to certain accounting requirements and

spending limitations.

¶19 The Court acknowledged that once the university

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conditioned the opportunity to obtain an education on an agreement

to support objectionable speech, the First Amendment was

implicated. Id. at 231. But it rejected the germaneness test

applied in Abood and Keller as “unworkable” in the context of

extracurricular student speech at a university. Id. Recognizing

that the university’s sole purpose in charging the fee was to

facilitate “the free and open exchange of ideas by, and among,

students,” the Court reasoned that “asking what speech is germane

would be contrary to the very goal the University seeks to pursue.”

Id. at 229-32. Instead, the Court determined that “the principal

standard of protection for objecting students . . . is the

requirement of viewpoint neutrality in the allocation of funding

support.” Id. at 233. Although the Court acknowledged that some

students were required to pay fees to subsidize speech they found

“objectionable, even offensive,” the viewpoint neutrality

requirement of the student fee program sufficiently protected the

students’ First Amendment rights. Id. at 230.3

¶20 In the case before us, the court of appeals did not find

Southworth informative, concluding that its analysis applied only

in the university setting. See May, 203 Ariz. at 18, ¶ 17, 49 P.3d

3
Concurring, Justice Souter observed that the relationship
between the fee payer and the objectionable speech was attenuated
because the money was distributed in a neutral manner by an agency
that had “no social, political, or ideological character.”
Southworth, 529 U.S. at 240 (Souter, J., concurring). The same is
true in this case.

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at 290. We think otherwise. While a university is certainly one

venue in which the free and open exchange of ideas is encouraged,

it is not the only one. Encouraging public debate in the political

arena is at least as compelling a public purpose as encouraging

speech on a university campus. Moreover, limiting Southworth to a

university setting overlooks the thrust of the Court’s analysis:

If the government seeks to facilitate or expand the universe of

speech and accomplishes its goal in a viewpoint neutral way, the

question whether speech is germane is simply inapposite.

¶21 We find the Southworth approach better suited than the

Abood line of cases for analyzing the constitutionality of the

Clean Elections Act. The university’s goals in Southworth and the

government’s goals in funding clean elections are similar: Both

seek to facilitate free speech. Moreover, both funding systems

protect free speech rights by requiring viewpoint neutrality in the

allocation of funds and attenuating the connection between the

payers of funds and the message communicated. The principles of

Buckley – that government may use public funds to finance political

speech – and Southworth – that viewpoint neutrality in the

allocation of funds adequately safeguards First Amendment rights –

support the conclusion that collecting a surcharge on civil and

criminal fines to fund political campaigns does not violate the

First Amendment.

¶22 But May counters that the Act is not viewpoint neutral in

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two respects. First, he contends that fine payers are forced to

support the viewpoint that public financing of campaigns represents

good public policy. Yet, as Buckley noted, “every appropriation

made by [government] uses public money in a manner to which some

taxpayers object.” 424 U.S. at 92. For example, taxes from the

state’s general fund are used to pay the salaries of state

legislators, some of whom an individual taxpayer might support and

others whom the taxpayer might not support. Yet no one would

suggest that such payments violate the First Amendment. But

government could not function if taxpayers could refuse to pay

taxes if they disagreed with the government policy or function that

the tax supported.4 See United States v. Lee, 455 U.S. 252, 260

(1982); see also Southworth, 529 U.S. at 229. Second, May argues

that not all candidates request and receive campaign funds. But

Southworth’s insistence on viewpoint neutrality focused on the

government’s method of allocating funds, not the resulting

viewpoints being supported. Southworth, 529 U.S. at 233. The

method of allocating funds under the Clean Elections Act is clearly

neutral with regard to the ideology or message of any candidate and

4
The State makes considerable use of surcharges to fund
various public programs. See, e.g., A.R.S. § 12-116.01(A)
(criminal justice enhancement fund); A.R.S. § 12-116.02 (medical
services enhancement fund); A.R.S. § 12-116.01(B) (fill the gap
fund); A.R.S. § 12-116.01(C) (DNA fund).

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thus passes muster under Southworth.5

¶23 In a final salvo, amicus participant Pacific Legal

Foundation urges that, while “tax dollars . . . may be spent on

expressive activity without violating taxpayers’ First Amendment

rights,” the surcharge at issue here is a fee, not a tax, and

therefore must be analyzed differently. We conclude, however, that

whether the surcharge is a tax or a fee is not dispositive of the

issues in this case. Government may no more violate the First

Amendment by imposing a tax than it may by imposing a fee.

Moreover, we have not discovered any compelled funding case in

5
May urges that two cases that have invalidated campaign
funding schemes should guide the disposition of this case. We do
not find either case applicable. In Butterworth v. Florida, 604
So. 2d 477 (Fla. 1992), the Florida Supreme Court struck down a
1.5% assessment on some contributions to political parties, which
assessment was used to fund political campaigns. The court held
that the assessment “infringes on First Amendment rights by forcing
contributors to decide between contributing to a party and
financing causes or persons with whom they disagree or not
contributing to a party at all.” Id. at 481. The Florida statute
directly burdened political contributions, which implicated First
Amendment speech and association rights that are not burdened under
the Arizona law.
In Vermont Society of Association Executives v. Milne,
779 A.2d 20 (Vt. 2001), the Supreme Court of Vermont ruled that a
tax on lobbyists used to fund political campaigns violated the
lobbyists’ First Amendment rights. As indicated in ¶ 4 of this
opinion, the tax on lobbyists formerly contained in the Clean
Elections Act was held to be unconstitutional. That ruling has not
been appealed and that issue is not before this court. Moreover,
Milne does not assist in the analysis here because, unlike the
lobbyists in that case, the fine payers whose surcharges funded the
Clean Elections Act are a diverse, ephemeral group not “associated”
in any meaningful way and not engaged in any First Amendment
activity.
Because of their dissimilarity to the case before us,
neither Butterworth nor Milne is helpful in resolving this case.

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which the outcome turned on whether the assessment was a fee or a

tax. Nonetheless, we address the issue briefly.

¶24 Whether an assessment should be categorized as a tax or

a fee generally is determined by examining three factors: “(1) the

entity that imposes the assessment; (2) the parties upon whom the

assessment is imposed; and (3) whether the assessment is expended

for general public purposes, or used for the regulation or benefit

of the parties upon whom the assessment is imposed.” Bidart Bros.

v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir. 1996) (citing San

Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967

F.2d 683 (1st Cir. 1992)). All three elements reveal the

assessment here as a tax: It was imposed by citizen initiative on

a broad range of payers for a public purpose. This conclusion does

not end the inquiry, however, for even a tax may be imposed in an

unconstitutional way or for an unconstitutional purpose.

¶25 May argues that if the surcharge is a tax, it is an

unconstitutional “special tax” requiring strict scrutiny because

“it is imposed on less than the whole” population of Arizona

citizens and burdens the First Amendment rights of a narrowly

defined group of taxpayers. May relies on Minneapolis Star and

Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575

(1983), and Murdock v. Pennsylvania, 319 U.S. 105 (1943), to

support his contention that taxes on discrete groups are invalid

because of the threat that “government will destroy a selected

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group of taxpayers by burdensome taxation.” Minneapolis Star, 460

U.S. at 585.

¶26 We disagree with May’s premise that the surcharge does

not apply to all Arizonans. It does; any person who pays a civil

or criminal fine is subject to pay the surcharge. Just as any

person choosing to purchase a new car or other non-exempt good must

pay a tax, any person found to have parked illegally or committed

a crime will face the surcharge. No narrow, discrete group of

taxpayers is at issue in the case before us, nor are the fine

payers exercising a First Amendment right. Minneapolis Star and

Murdock are therefore inapposite.

¶27 The Clean Elections Act’s surcharge stands in stark

contrast to the tax on paper and ink in Minneapolis Star and the

attempted license tax on door-to-door religious proselytizing at

issue in Murdock. The clean elections surcharge is not limited to

a particular group or industry, but is assessed against all

citizens who pay civil and criminal fines. Nor does the surcharge

burden the exercise of a First Amendment right; there is no

expressive content inherent in paying a traffic fine. To the

extent that civil and criminal fine payers are compelled to fund

the Clean Elections Act, the safeguard of viewpoint neutrality in

the allocation of funds suffices to mitigate any First Amendment

concerns.

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 CONCLUSION

¶28 In summary, we hold that the surcharge funding provision

of the Citizens Clean Elections Act, A.R.S. § 16-940(C), is

constitutional. We therefore vacate the opinion of the court of

appeals and reinstate the judgment in favor of the Real Parties in

Interest.

Rebecca White Berch, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Michael D. Ryan, Justice

John Pelander, Judge*

*Pursuant to Arizona Constitution article VI, section 3, the
Honorable John Pelander, Judge of the Arizona Court of Appeals,
Division Two, was designated to sit on this case.

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