Yes for Az!/col River Indian v. Rep Jim Wiers

SUPREME COURT OF ARIZONA
En Banc

YES FOR ARIZONA!, a registered ) Arizona Supreme Court
Arizona Political Committee; ) No. CV-02-0238-SA
COLORADO RIVER INDIAN TRIBES, )
)
Petitioners, )
)
v. )
)
REP. JIM WIERS, Speaker of the )
House of Representatives and )
Co-Chair of Legislative Council; )
SEN. RANDALL GNANT, President of )
the Senate and Co-Chair of the )
Legislative Council; REP. KEN )
CHEUVRONT, Member of the )
Legislative Council; REP. LINDA )
GRAY, Member of the Legislative )
Council; REP. LAURA KNAPEREK, ) MEMORANDUM DECISION
Member of the Legislative ) (Not for Publication -
Council; REP. LEAH ) Rule 111, Rules of the
LANDRUM-TAYLOR, Member of the ) Arizona Supreme Court)
Legislative Council; REP. MARION )
PICKENS, Member of the )
Legislative Council; REP. BOB )
ROBSON, Member of the )
Legislative Council; SEN. KEN )
BENNETT, Member of the )
Legislative Council; SEN. JACK )
BROWN, Member of the Legislative )
Council; SEN. CHRIS CUMMISKEY, )
Member of the Legislative )
Council; SEN. TONI HELLON, )
Member of the Legislative )
Council; SEN. DAVID PETERSON, )
Member of the Legislative )
Council; SEN. PETER RIOS, Member )
of the Legislative Council; and )
BETSEY BAYLESS, Arizona )
Secretary of State, all in their )
official capacities, )
Respondents. )
)
)
)

Petition for Special Action
 JURISDICTION ACCEPTED; RELIEF GRANTED

BROWN & BAIN, P.A. Phoenix
By Paul F. Eckstein
and Dan L. Bagatell
and Michael S. Mandell
Attorneys for Petitioners

GALLAGHER & KENNEDY, P.A. Phoenix
By John E. Lundin
and John G. Kerkorian
Attorneys for Respondents

JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
By Joseph A. Kanefield, Assistant Attorney General
Attorneys for Respondent Betsey Bayless, Secretary of State

R Y A N, Justice

¶1 Arizona Revised Statutes (“A.R.S.”) section 19-124(B)

(2002) requires the Arizona Legislative Council to prepare an

impartial analysis of ballot propositions. The question this

special action raises is whether the Council’s analysis of

Proposition 200, entitled “Tribal-State Gaming Compact, College

Scholarship and Elderly Care Act of 2002” was fair and impartial.

Concluding in a previous order that the Council did not impartially

analyze the effect of the proposition on the regulation of Indian

gaming, we accepted jurisdiction, granted relief, and directed the

Secretary of State to strike certain language from the Council’s

analysis. We now explain our previous order.

I. Background

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¶2 Proposition 200 is a citizens’ initiative circulated by

Petitioners. The proposition requires the governor to enter gaming

compacts with Arizona Indian tribes containing terms and conditions

set forth in the initiative. The initiative authorizes Arizona

Indian tribes to conduct gaming allowed by federal law according to

provisions contained in the compact and negotiated between each

tribe and the governor.

¶3 To comply with A.R.S. § 19-124(B), the Council’s staff

drafted an analysis of Proposition 200. At a public hearing,

Stephen Hart, the Director of the Arizona Department of Gaming and

an opponent of Proposition 200, persuaded the Council to amend the

analysis in several ways. With respect to the analysis of the

regulatory provision, Hart offered the following amendments, which

are italicized:

Regulation - Gaming facility operators must
keep surveillance logs that are open to
inspection by the Arizona Department of
Gaming, but no other records are subject to
Department of Gaming inspection, including
financial and accounting records . . . . The
tribal gaming office is authorized to conduct
investigations of compact violations. The
Department of Gaming has access to tribal
gaming office reports but is not authorized to
conduct independent investigations.

The Council approved the amendments with apparently no discussion

of the above additions.

¶4 Petitioners’ counsel did not receive a copy of Hart’s

suggested amendments before the public hearing. Petitioners’

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representatives also did not have a copy of the amendments before

or during the hearing when the Council voted to accept the

amendments.

¶5 Eventually, Petitioners’ counsel was able to confirm that

the Legislative Council adopted the amendments advocated by Hart.

Petitioners’ counsel then wrote to the Council, expressing

Petitioners’ concerns that some of the amended language was

“inaccurate” and “not impartial.” He also requested that the

original analysis be restored. Nevertheless, the Council submitted

the amended analysis to the Secretary of State for inclusion in the

voter publicity pamphlet. See A.R.S. § 19-123 (2002). This

special action followed.1

II. Discussion

¶6 We first address Respondents’ contention that Petitioners

are barred from seeking relief because they failed to raise timely

objections at the hearing. We conclude that Petitioners did not

waive their objections to the Council’s analysis. Petitioners did

not receive the proposed amendments to the analysis before the

hearing. And apparently the proposed amendments were not given to

Petitioners until the hearing was nearly completed. Under such

1
We exercise jurisdiction under the principles set forth
in Arizona Legislative Council v. Howe, 192 Ariz. 378, 382, ¶
10, 965 P.2d 770, 774 (1998), and Fairness and Accountability in
Insurance Reform v. Greene, 180 Ariz. 582, 590, 886 P.2d 1338,
1346 (1994).

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circumstances, we find no waiver. See Mohave County v. Mohave-

Kingman Estates, Inc., 120 Ariz. 417, 421, 586 P.2d 978, 982

(1978). Additionally, Respondents have not demonstrated any

prejudice. See Sotomayor v. Burns, 199 Ariz. 81, 83, ¶ 8, 13 P.3d

1198, 1200 (2000) (no prejudice to Legislative Council when simply

required to delete language that is partial). Therefore, we turn

to the merits of the petition.

¶7 In Fairness and Accountability in Insurance Reform v.

Greene, we held “that A.R.S. § 19-124(B) requires the legislative

council to produce a neutral explanation of initiative proposals,

avoiding argument or advocacy, and describing the meaning of the

measure, the changes it makes, and its effect if adopted.” 180

Ariz. 582, 591, 886 P.2d 1338, 1347 (1994). “Put another way, the

language must not mislead, be ‘tinged with partisan coloring,’ or

argue for one side or the other.” Ariz. Leg. Council v. Howe, 192

Ariz. 378, 383, ¶ 16, 965 P.2d 770, 775 (1998) (quoting Greene, 180

Ariz. at 590, 886 P.2d at 1346). When a dispute arises over the

Council’s analysis, this court’s “function is only to ensure that

a challenged analysis is reasonably impartial and fulfills the

statutory requirements defined in Greene.” Id. at ¶ 17, 965 P.2d

at 775.

¶8 The dispute here focuses on two parts of the Council’s

amended analysis of the regulatory provisions of the proposition.

Petitioners object to the phrase: “but no other records are subject

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to the Department of Gaming inspection, including financial and

accounting records.” They also object to the phrase: “but [the

Department of Gaming] is not authorized to conduct independent

investigations.” They contend that these phrases are misleading

and do not fairly and impartially describe the effect of the

proposition on the regulation of Indian gaming. We conclude that

these phrases are misleading because Proposition 200 does not limit

the Department’s inspection of records only to surveillance logs,

nor does it entirely eliminate the Department’s authority to

conduct independent investigations. Our conclusion is based on the

following reasons.

¶9 First, sections 2(f), Findings and Declarations, and

3(f), Purpose and Intent, of Proposition 200 acknowledge the need

for State monitoring of gaming on Indian reservations. Second,

Proposition 200 does not limit the type of records that must be

maintained nor the type of records available for inspection solely

to surveillance logs. It is true that only section 4(B)(8) of

Proposition 200 specifically refers to any record keeping and

authority of the Department to inspect records. That subsection

requires gaming facility operators to maintain surveillance logs,

which must be available for inspection by the Department of Gaming.

But section 4(B)(8) does not prohibit the governor and a tribe from

agreeing to make additional records available for the Department’s

inspection.

¶10 Third, any compact agreed to by a tribe and the governor

must incorporate “the same appendix provisions relating to the

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definitions, operational standards, specifications and regulations

governing Keno, the technical standards for electronic games of

chance and the security and surveillance requirements as contained

in [the] Indian Tribe’s Gaming Compact in effect as of January 1,

2002.” Proposition 200 § 4(B)(16). These appendices require the

tribes to maintain certain records and permit the Department access

to such records. For example, section 2 of Appendix A of the

existing compact requires all electronic games of chance be tested

and certified by laboratories approved by the Department. And

under Section 5 of Appendix A, such test results must be reported

to the Department. Section 8 of the appendix lists eight types of

reports that must be submitted to the Department. Additionally,

section H of Appendix C states that “the State Gaming Agency and

[its] respective authorized employees shall at all times be

provided immediate access to the surveillance room and all areas,

public and non-public, of the Gaming Facility.”

¶11 Respondents, however, argue that section 4(B)(16) of

Proposition 200 permits the governor and a tribe to agree to

different provisions than are in the current appendices. But any

such agreement is a possibility, not a certainty. Moreover,

section 4(B)(16) requires that any compact contain provisions

similar to those in the existing appendices in the absence of any

agreement otherwise. Id. Accordingly, the Council’s statement

that the proposition prohibits the Department from inspecting any

records other than surveillance logs exaggerates the effect of the

proposition on the type of records that the Department may be

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permitted to inspect.

¶12 Fourth, while Proposition 200 section 4(B)(13) invests

the tribes with the authority to investigate any violations of the

tribal-state gaming compacts, it does not specifically preclude the

governor and a tribe from agreeing to allow the Department also to

investigate violations of the compact. Nor does Proposition 200

eliminate all independent investigatory authority of the

Department. For example, section 4(B)(15) of Proposition 200

impliedly grants the Department the power to investigate non-

enrolled members of an Indian tribe seeking an application for, or

renewal of, a gaming license. Under this provision, non-enrolled

tribal members must submit applications for a gaming license, or

renewal of a gaming license, to the Department. Id. The

Department then either approves or denies the application. Id.

The authority to approve or disapprove applications necessarily

implicates a power to investigate. Therefore, Proposition 200 does

not completely do away with the Department’s authority to conduct

independent investigations as stated by the Council’s analysis.

¶13 Finally, the governor and a tribe may agree to more

regulation, investigation, and inspection than currently required.

See id. § 4(B)(19). Thus, although Proposition 200 significantly

reduces the authority of the Department to inspect records and

conduct independent investigations, it does not entirely eliminate

the Department from exercising such authority.

III. Attorneys’ Fees

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¶14 Petitioners request an award of attorneys’ fees under

A.R.S. § 12-2030(A) (Supp. 2001), which states that “[a] court

shall award fees . . . to any party other than this state . . .

which prevails by an adjudication on the merits in a civil action

brought by the party against the state, . . . to compel a state

officer . . . to perform an act imposed by law as a duty on the

officer.” Because Petitioners prevailed in this civil case against

the State, we award them their attorneys’ fees. See Citizens for

Growth Mgmt. v. Groscost, 199 Ariz. 71, 74, ¶ 16, 13 P.3d 1188,

1191 (2000).

IV. Conclusion

¶15 In summary, we hold that the Council’s analysis with

respect to the regulatory effect of Proposition 200 violated A.R.S.

§ 19-124(B) because the analysis was not a “neutral explanation” of

Proposition 200. See Greene, 180 Ariz. at 591, 886 P.2d at 1347.

Accordingly, we accepted jurisdiction, granted relief, and ordered

the Secretary of State to strike from the Council’s analysis of

Proposition 200 the language to which Petitioners objected. See

id. at 586, 886 P.2d at 1342; Howe, 192 Ariz. at 384, ¶ 23, 965

P.2d at 776.

Michael D. Ryan, Justice

CONCURRING:

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Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Stanley G. Feldman, Justice

Rebecca White Berch, Justice

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