Matt W Russ v. Jim irvin/betsey Bayless

SUPREME COURT OF ARIZONA
En Banc

MATT W. RUSS, ) Arizona Supreme Court
) No.
Plaintiff/Appellant, )
) Court of Appeals
v. ) Division
) No.
JIM IRVIN, individually BETSEY )
BAYLESS, in her capacity as ) [ ]County
Secretary of State of the State ) Superior Court
of Arizona and APACHE COUNTY ) No.
BOARD OF SUPERVISORS, COCHISE )
COUNTY BOARD OF SUPERVISORS, )
COCONINO COUNTY BOARD OF )
SUPERVISORS, GILA COUNTY ) O P I N I O N
BOARD OF SUPERVISORS, GRAHAM )
COUNTY BOARD OF SUPERVISORS, )
GREENLEE COUNTY BOARD OF )
SUPERVISORS, LA PAZ COUNTY
BOARD OF SUPERVISORS, MARICOPA
COUNTY BOARD OF SUPERVISORS,
MOHAVE COUNTY BOARD OF
SUPERVISORS, NAVAJO COUNTY
BOARD OF SUPERVISORS, PIMA
COUNTY BOARD OF SUPERVISORS,
PINAL COUNTY BOARD OF
SUPERVISORS, SANTA CRUZ COUNTY
BOARD OF SUPERVISORS, YAVAPAI
COUNTY BOARD OF SUPERVISORS,
YUMA COUNTY BOARD OF SUPERVISORS
AND APACHE COUNTY
RECORDER, COCHISE COUNTY
RECORDER, COCONINO COUNTY
RECORDER, GILA COUNTY RECORDER,
GRAHAM COUNTY RECORDER, GREENLEE
COUNTY RECORDER, LA PAZ COUNTY
RECORDER, MARICOPA COUNTY
RECORDER, MOHAVE COUNTY
RECORDER, NAVAJO COUNTY
RECORDER, PIMA COUNTY RECORDER,
PINAL COUNTY RECORDER, SANTA
CRUZ COUNTY RECORDER, YAVAPAI
COUNTY RECORDER, YUMA COUNTY
RECORDER,

Defendants/Appellees.

Appeal from the Superior Court of Maricopa County
The Honorable Edward O. Burke, Judge

AFFIRMED

DALLIMORE & BONNELL, LLP Phoenix
By Suzanne M. Dallimore
and Nancy M. Bonnell
Attorneys for Plaintiff

RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY Phoenix
By Stephen E. Silverman, Deputy County Attorney
and Jill M. Kennedy, Deputy County Attorney
Attorneys for Defendant Maricopa County, and for Defendant
Officers of Apache, Cochise, Coconino, Gila, Graham, Greenlee,
LaPaz, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai, and Yuma
Counties

R Y A N, Justice
¶1 In November 2000, the Legislature referred to Arizona

voters Proposition 103, which proposed to amend Article XV, Section

1 of the Arizona Constitution. The proposed amendment sought to

increase the number of Arizona Corporation Commissioners from three

to five, increase the limit on terms a Commissioner may hold from

one to two consecutive terms, and reduce the length of each term

from six to four years.1 A majority of voters passed the

1
The full text of the provision is as follows:

Section 1. A. No member of the corporation
commission shall hold that office for more
than two consecutive terms. No corporation
commissioner may serve again in that office
until out of office for one full term. Any
person who serves one half or more of a term
shall be considered to have served one term

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proposition.

¶2 James Irvin was elected to a six-year term as

Commissioner in November 1996. Irvin’s term will expire on

December 31, 2002, and he currently seeks office for a second term.

Under the amended constitutional provision, that term will be for

four years. Therefore, if elected, Irvin would serve a total of

ten years as Commissioner.

¶3 In June 2002, Matt W. Russ, a registered voter of

Maricopa County who voted in favor of Proposition 103, challenged

Irvin’s candidacy, seeking injunctive relief and a writ of

mandamus. Russ asserted that Proposition 103 established a limit

of eight consecutive years of service, thereby precluding Irvin

for purposes of this section.

B. A corporation commission is hereby created
to be composed of five persons who shall be
elected at the general election, and whose
term of office shall be four years, and who
shall maintain their chief office at the state
capital. The two additional commission
members shall be elected at the 2002 general
election for initial two-year terms beginning
on the first Monday in January, 2003.
Thereafter, all terms shall be four-year
terms.

C. In case of vacancy in the office, the
governor shall appoint a commissioner to fill
the vacancy. The appointed commissioner shall
fill the vacancy until a commissioner shall be
elected at a general election as provided by
law, and shall qualify. The qualifications of
commissioners may be prescribed by law.

Ariz. Const. art. XV, § 1.

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from seeking a second term as Commissioner. The trial court

granted Irvin’s motion to dismiss the complaint for failure to

state a claim and denied Russ’s motion for summary judgment. Russ

appealed to this court, and we have jurisdiction under Arizona

Revised Statutes (“A.R.S.”) section 16-351(A) (Supp. 2001). In a

previous order we affirmed the trial court, stating a written

decision would follow. This is that decision.

¶4 Russ contends that the plain language and intent of the

Constitution limits an Arizona Corporation Commissioner to no more

than eight years in office. He asserts that in examining the

provision as a whole, the reduction of the length of the term to

four years and the limit on the number of consecutive terms to two

reflects an intent to make the total length of service eight years.

¶5 “If the language [of a Constitutional provision] is clear

and unambiguous . . . judicial construction is neither necessary

nor proper.” Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d

426, 430 (1994) (citation omitted). The provision’s language

clearly shows that the Legislature intended only to limit the

number of terms. The Legislature could have expressly limited the

number of consecutive years a Commissioner could hold office but

chose not to. Instead, the amendment unambiguously states that no

Commissioner “shall hold that office for more than two consecutive

terms.” Ariz. Const. art. XV, § 1(A).

¶6 Additionally, the provision contemplates service of

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varying lengths. The two additional Commissioners will only be

able to serve six years - an initial two-year term and a second

four-year term. See Ariz. Const. art. XV, § 1(B). The amendment

also provides that Commissioners who serve less than half a term

will not be considered to have served any term. See Ariz. Const.

art. XV, § 1(A). Thus, as Irvin correctly points out, some

Commissioners could serve more than eight years - one year and 364

days, not counting as a term, and then two consecutive four-year

terms. These different lengths of service further demonstrate that

the Legislature intended only to limit the number of terms, not

years.

¶7 Moreover, this issue has been addressed by an opinion of

the attorney general. The opinion concluded that the provision

merely imposes on the Commissioners a two term limit, not a limit

on the number of consecutive years. Op. Ariz. Att’y Gen. I01-001.

It states in part the following:

This language imposes a two consecutive term
limit on all Commissioners. It does not
expressly limit the number of consecutive
years a person may serve, nor does it
establish different requirements for a
Commissioner who previously served a six-year
term. It establishes a limit based on the
number of terms served, not the number of
years.

* * *

The transition to Proposition 103 may result,
for a limited time, in Commissioners reaching
their two-term limit after serving anywhere
from six to ten consecutive years. . . . These

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differences naturally result from a limit
based on the number of terms served, when the
terms are for different lengths of time.

Id.
¶8 Such opinions are advisory and not binding. Ruiz v.

Hull, 191 Ariz. 441, 449, ¶ 28, 957 P.2d 984, 992 (1998).

“However, the reasoned opinion of a state attorney general should

be accorded respectful consideration.” Id. We agree with the

reasoning in the opinion. The amendment to Article XV, Section 1

established a limit only on the number of terms, and its language

allows for differences in the lengths of terms served.

¶9 Accordingly, we affirm the trial court’s dismissal of the

complaint.

Michael D. Ryan, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Stanley G. Feldman, Justice

Rebecca White Berch, Justice

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