Adams v. Comm'n on Appellate Court Appointments
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Arizona Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Arizona Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
The Arizona Constitution requires that a five-member Independent Redistricting Commission (IRC) draw boundaries for congressional and state legislative districts after every decennial census. According to Ariz. Const. art. 4, pt. 2, section 1(3), during the three years preceding appointment, members of the IRC shall not have been appointed to, elected to, or a candidate for any other public office. In 2010, the Appointment Commission selected twenty-five nominees for the IRC, including a chief judge for two state tribal courts and directors of irrigation districts. Petitioners Kirk Adams, speaker of the House of Representatives, and Russell Pearce, president of the Senate, asked the Commission to reconsider, arguing that the three contested nominees were ineligible because they held public office. The Commission declined to change its selections, and Petitioners filed a petition for special action with the Supreme Court. The Court (1) denied relief as to the tribal judge because a tribal judge is not a public office for purposes of section 1(3); (2) granted relief as to the irrigation district board members because an irrigation district director holds a public office for purposes of section 1(3); and (3) ordered the Commission to identify two alternative nominees.
Download PDF
SUPREME COURT OF ARIZONA En Banc KIRK ADAMS, Speaker of the Arizona House of Representatives, in his official capacity; and RUSSELL PEARCE, President of the Arizona Senate, in his official capacity, ) ) ) ) ) ) ) Petitioners, ) ) v. ) ) THE COMMISSION ON APPELLATE ) COURT APPOINTMENTS; ) REBECCA WHITE BERCH, officially ) in her capacity as Chair of the ) Commission on Appellate Court ) Appointments; SUZANNE M. ) BALLARD; DOUG COLE; CAREY ) DOBSON; ROBERT M. GALLO; JOHN A. ) LEAVITT; LINDA MARTIN; DEWEY D. ) SCHADE; JANE C. STRAIN; JOHN ) THOMAS TAYLOR, III; CHARIE ) WALLACE; WILLIAM J. EKSTROM, ) JR.; JILL HARRISON; MICHAEL ) RUSING; and TED A. SCHMIDT, ) officially in their capacities ) as members of the Commission on ) Appellate Court Appointments, ) ) Respondents. ) ) __________________________________) Arizona Supreme Court No. CV-10-0405-SA O P I N I O N Special Action JURISDICTION ACCEPTED; RELIEF GRANTED IN PART AND DENIED IN PART ________________________________________________________________ ARIZONA HOUSE OF REPRESENTATIVES By Peter A. Gentala And Phoenix ARIZONA STATE SENATE By Gregrey G. Jernigan Attorneys for Kirk D. Adams and Russell K. Pearce Phoenix THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix By Mary R. O'Grady, Solicitor General Mark D. Wilson, Assistant Attorney General Rex C. Nowlan, Assistant Attorney General Attorneys for Commission on Appellate Court Appointments, Rebecca White Berch, Suzanne M. Ballard, Doug Cole, Carey Dobson, Robert M. Gallo, John A. Leavitt, Linda Martin, Dewey D. Schade, Jane C. Strain, John Thomas Taylor, III, Charie Wallace, William J. Ekstrom, Jr, Jill Harrison, Michael Rusing, and Ted A. Schmidt HARALSON MILLER PITT FELDMAN & MCANALLY PLC By Stanley G. Feldman Tucson And PERKINS COIE LLP By Paul F. Eckstein Colin P. Ahler Amy C. Chang Attorneys for Amici Curiae Lattie Coor, Paul Johnson, Valley Citizens League, Phoenix and Arizona Latino Research Enterprise SHEILA SULLIVAN POLK, YAVAPAI COUNTY ATTORNEY By Jack H. Fields, Deputy County Attorney Attorneys for Amicus Curiae Yavapai County Attorney Phoenix Prescott GORDON & REES, LLP Phoenix By Stephen W. Tully Attorneys for Amici Curiae Jeff Flake, Trent Franks, Benjamin Quayle, Paul Gosar, and David Schweikert ________________________________________________________________ B A L E S, Justice ¶1 three This special action challenges the qualifications of nominees Commission. to the Arizona Independent Redistricting On January 19, 2011, we issued an order accepting jurisdiction and granting relief in part, stating that a written 2 opinion would follow. This is that opinion. I. ¶2 In 2000, the voters approved Proposition 106, which amended the Arizona Constitution to require that a five-member Independent Redistricting Commission ( IRC ) draw boundaries for congressional and decennial census. state more political than two districts after every The IRC must be constituted by February 28 of each year ending in one. No legislative Ariz. Const. art. 4, pt. 2, § 1(3). Commission party. Id. In members addition, may belong during the to the same three years preceding appointment, members shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer, and shall not have served as an officer of a political party, or served as a registered paid lobbyist or as an officer of a candidate's campaign committee. Id. ¶3 years The Arizona Constitution directs that by January 8 of ending in one, the Commission on Appellate Court Appointments ( Appointment Commission ) shall nominate twentyfive persons to serve on the IRC, with ten nominees from each of the two largest political parties in Arizona . . . and five who are not registered with either of the two largest political parties in Arizona. ¶4 Id. §§ 1(4), (5). After the Appointment Commission has created its list 3 of twenty-five nominees, the highest ranking officer of the Arizona House of Representatives appoints one person from the list to serve on the IRC. Id. § 1(6). Appointments of the next three commissioners are then made from the list successively by the House minority leader, the highest ranking officer of the Arizona Senate, and the Senate minority leader. commissioners chosen by the legislative Id. leaders The four select the fifth, who cannot be a member of any party already represented on the IRC. ¶5 Id. § 1(8). In announced September that it 2010, was the accepting applications interested in serving on the IRC. including Schnepf Mark and applications districts. Schnepf, Sossaman, that they Sossaman, Republicans, serve Commission from persons Seventy-nine people applied, Stephen both Appointment as and Paul reported directors for on Bender. their irrigation Schnepf is on the board for the New Magma Irrigation District; Sossaman Irrigation District. is on the Bender, board an for the independent, Queen stated Creek on his application that he serves as Chief Judge of two Arizona tribal courts. Bender, a law professor at Arizona State University, serves as the Chief Justice of the Supreme Court of the Fort McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe. ¶6 The Appointment Commission met on December 8, 2010, to 4 take public comment, obtain legal advice on eligibility questions, interview forty applicants, and select nominees. committee selected twenty-five Schnepf, and Sossaman. nominees, including The Bender, Two days later, Kirk Adams, Speaker of the House of Representatives, and Russell Pearce, President of the Senate, arguing asked that the the Appointment three contested because they held public office. Bender, Schnepf, and Commission Sossaman nominees to reconsider, were ineligible The two legislators notified that they would appointing them and urged them to withdraw. not consider Bender declined; Schnepf and Sossaman sent withdrawal letters to the Appointment Commission. ¶7 On December 29, 2010, the Appointment Commission declined to change its selections and transmitted its list of twenty-five nominees to Adams. The next day, Adams and Pearce filed a petition for special action with this Court, arguing that the three challenged nominees are ineligible because they hold other public office and that Schnepf and Sossaman are also ineligible because they have withdrawn their applications. II. ¶8 Our decision to accept action is highly discretionary. jurisdiction of a special League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, 558 ¶ 4, 201 P.3d 517, 519 (2009). In invoking this Court s jurisdiction, Petitioners allege that the 5 Appointment Commission has failed to . . . perform a duty required by law as to which [it had] no discretion, Ariz. R.P. Spec. Act. 3(a), twenty-five because persons it who has are not willing qualified for appointment to the IRC. established to serve a on pool and of are See Ariz. Const. art. 4, pt. 2, § 1(5). ¶9 We agree that Petitioners, as the persons entitled to make the first and third appointments to the IRC, have standing to challenge the legality of the Appointment Commission s list of nominees. ¶¶ 11-14, 213 See Brewer P.3d 671, v. Burns, 674-75 222 (2009). Ariz. We 234, 237-38 exercise our discretion to accept jurisdiction because this case involves a dispute at the highest levels of state government requiring a prompt determination. Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22 (1992). III. A. ¶10 Arizona s constitution states that [w]ithin the three years previous to appointment, members of the IRC shall not have been appointed to, elected to, or a candidate for any other public office, including precinct committeeman or committeewoman but not including school board member or officer. art. 4, pt. 2, § 1(3). disqualification Commissioners are also subject to a provision: A 6 Ariz. Const. commissioner, during the commissioner s terms of office and for three years thereafter, shall be ineligible for Arizona registration as a paid lobbyist. ¶11 public office or for Id. § 1(13). The term public office as used in § 1(3) is not defined in the constitution. The sentence in which the term appears, however, provides guidance as to its meaning. Section 1(3) refers to other public office in contrast to service as an IRC commissioner, a state office, therefore includes other state offices. excludes school board members. and public office In addition, § 1(3) Because school districts are political subdivisions of the state, A.R.S. § 15-101(21) (2011), this exclusion implies that public offices of other political subdivisions (e.g., counties or municipalities) are encompassed by the term public office in § 1(3). Cf. State Consol. Publ g Co. v. Hill, 39 Ariz. 21, 28-32, 3 P.2d 525, 528-29 (1931) (holding that municipal officers are subject to prohibition in Article 4, Part 2, Section 17 on changes in compensation of public officers during term of office), modified on other grounds, 39 Ariz. 163, 4 P.2d 668 (1931). ¶12 offices Thus, of the public state office or any of as used its in § 1(3) political excluding school board members or officers. includes subdivisions, Cf. A.R.S. § 38- 101(1) (defining office to mean any office . . . of the state, or any political subdivision 7 thereof, the salary or compensation . . . of which is paid from a fund raised by taxation or by public revenue ). B. ¶13 If an irrigation district director holds an office of a political subdivision of the state, Schnepf and Sossaman are ineligible to serve as commissioners. ¶14 Irrigation districts derive their constitution and statutes of Arizona. powers from the Hohokam Irr. & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 397 ¶ 6, 64 P.3d 836, 839 (2003). Article Constitution states subdivisions of the privileges and exemptions granted under this that section irrigation state, benefits, 13, and and constitution. with entitled See of districts vested municipalities 7 to and also the are all the political the rights, immunities political A.R.S. Arizona and subdivisions § 48-2901 ( All irrigation districts organized under the laws of this state are declared to be municipal corporations for all purposes. ). ¶15 Irrigation districts are managed by elected boards of directors, who, along with a secretary appointed by the board, comprise the officers of the district. Although irrigation purposes, rather Int l. Bhd. of than Elec. districts a have solely Workers A.R.S. §§ 48-2971. business governmental v. Salt River and one, economic Local Project 266, Agric. Improvement & Power Dist., 78 Ariz. 30, 42-43, 275 P.2d 393, 8 401-02 (1954), their activities are authorized by the constitution and by statute, and their business is of a public nature similar in some respects to certain authorized activities of cities and towns. statutorily See Ariz. Const. art. 2, § 34 (empowering municipal corporations to engage in industrial towns to pursuits ); engage in A.R.S. § 9-511 business of operating a public utility). directors has broad a (empowering public cities nature, such and as powers An irrigation district board of to acquire and sell water and property, appropriate water and money, levy fines, and construct water and electrical delivery systems. ¶16 Because irrigation A.R.S. § 48-2978. districts are political subdivisions of the state and their officers include their directors, we conclude that Schnepf and Sossaman hold public office for purposes of § 1(3), just as officers of a city or a county hold public office. Notably, directors of irrigation districts take the same oath of office as county officials, see A.R.S. § 48-2973, -3023, and they officers for purposes of recall. are treated like county See id. § 48-3024 (permitting the recall of directors of irrigation districts and stipulating that the proceedings for such a recall follow what is provided by the constitution and laws of the state for the recall of county officers ). ¶17 Schnepf and Sossaman are therefore ineligible to serve 9 as IRC commissioners. We thus do not address Petitioners' argument that they are also ineligible because they are not willing to serve. C. ¶18 Bender is not an officer of the state or any of its political subdivisions. We assume, but need not decide, that he is an officer of the two tribes for which he serves as a parttime judge. Bender s eligibility turns on whether a tribal office is a public office under § 1(3) of the constitution. ¶19 Petitioners representatives than offices argue of the and that state the public or amici office its congressional must include subdivisions, because more the addition of the word Arizona before public office in the disqualification superfluous. provision of § 1(13) would otherwise be They also note that allowing members of Congress to serve as commissioners would conflict with Proposition 106 s intent to remove self-interested officials from the process of drawing boundaries for their own electoral districts. ¶20 The meaning of public office cannot be identified without considering the context in which the term appears and the fact that, long before used the constitution had officer several in other the terms adoption public provisions. of § 1(3), office See or the public Kilpatrick v. Superior Court (Miller), 105 Ariz. 413, 419, 466 P.2d 18, 24 10 (1970) (recognizing that constitutions must be construed as a whole and their various parts must be read together ); State ex rel. Jones v. Lockhart, 76 Ariz. 390, 398, 265 P.2d 447, 452-53 (1953) (noting that no constitutional provision is to be construed piece-meal, and regard must be had to the whole of the provision and its relation to other parts of the Constitution ). There is also force to the argument that public office as used in § 1(3) s eligibility provision extends more broadly than the term Arizona disqualification public office provision. We as used accordingly in § 1(13) s consider how the term public office has been interpreted in Arizona law before the adoption of Proposition 106. ¶21 The Enabling Act that resulted in Arizona s statehood provided for an initial election at which officers for a full state government, legislature, one officers such as including a Representative constitutional shall be chosen by the people. § 23, 36 delegates Stat. at our 557, state 571. governor, in members Congress, convention and of such shall the other prescribe, Act of June 20, 1910, ch. 310, Consistent constitutional with this convention mandate, approved ordinance providing that at the initial state election: [O]fficers for a full State government shall be chosen by the people, including all the elective State, County, and Precinct officers and members of the Legislature, provided for by said Constitution, and one Representative of Congress. For the purpose of 11 an advising the Legislature, the people shall also express at said election, their choice for two United States Senators to represent the State in Congress. Elec. Ord. No. 2, § 2. ¶22 Thus, on the eve of statehood, representatives to Congress were identified as among the officers for a full state government. (United States Senators were not directly elected until after the 1913 ratification of the Seventeenth Amendment.) Members of Congress are properly regarded as officers for . . . a state, even though they are not state officers, inasmuch as they are chosen by the People of their respective states, and the vote of representatives may, in rare instances, be taken by state. XII (providing selecting U.S. Const. art. 1, § 2, cls. 1-2; amend. that President vote of shall be House taken of by Representatives state); amend. in XVII (providing for direct election of senators). ¶23 The Arizona Constitution as drafted in 1910 and implemented in 1912 also contained several references to public office. include Some of those references have long been understood to Arizona s members of Congress. For example, the constitution provides that [w]hen any office shall, from any cause, become vacant, and no mode shall be provided by the Constitution or by law for filling such vacancy, the governor shall have the Ariz. Const. power art. 5, to fill § 8. The 12 such vacancy inaugural by appointment. state legislature provided for the filling of certain vacancies, including those in Congress. See Rev. Stat. Ariz. Civ. § 2869 (1913) (providing that [s]pecial elections to fill vacancies in the offices of members of the legislature, representatives in congress or United States senators shall only be held on the proclamation of the governor ); id. § 2870 (providing for interim appointment and election to fill unexpired Senate term upon vacancy). ¶24 Arizona s constitution also broadly declares in Article 8, Part 1, Section 1 that [e]very public officer in the State of Arizona, holding an elective office . . . is subject to recall. Since statehood, Arizona has had provisions directed at members of Congress. statutory recall Rev. Stat. Ariz. Civ. § 22-3054 to -3364 (1913) (providing for advisory recall elections of members of Congress); A.R.S. §§ 19-221 to -222 (allowing members of Congress to file statements indicating their willingness to resign in response to a recall election). ¶25 Also relevant is Article 6, Section 28, of the Arizona Constitution, which provides that [j]ustices and judges of courts of record shall not be eligible for any other public office or for any other public employment during their term of office. Before 1960, Article 6 stated that supreme court justices and superior court judges shall not be eligible to any office or public employment other than judicial office during the term for which they shall have been elected. 13 Ariz. Const. art. 6, § 11 (repealed 1960). ¶26 that In Stockton v. McFarland, a primary candidate argued this provision rendered his opponent, a superior judge, ineligible for the United States Senate. 139-40, 106 McFarland, P.2d 328, responded 328 by (1940). arguing The that the court 56 Ariz. 138, opponent, reference Ernest to any office concerned solely state offices and, in any event, the state could not add to qualifications established by the federal Constitution for Senators. Evidently assuming that any office as used in article 6 would include United States Senators (the Court did not address the contrary argument), the Court accepted McFarland s alternative argument, holding that the federal Constitution bars states from altering the qualifications for members of Congress. Id. at 147-48, 106 P.2d at 331. ¶27 Arizona s legislature statutes suggesting, at has least also implicitly, repeatedly that Congress are regarded as holding public office. the state requires public officers. the filing of financial A.R.S. § 38-541(8). enacted members of For example, disclosures by Members of Congress are specifically excluded, suggesting that they might otherwise be regarded as public officers. Id. Similarly, although Arizona law broadly requires campaign finance disclosures for candidates for public office, specifically excluded. candidates federal office are A.R.S. § 16-901(2) (excluding candidates 14 for for federal office from state campaign disclosure law). ¶28 Arizona law, we acknowledge, is not entirely consistent in its use of the terms office, public office, and public officer. Sometimes the constitution distinguishes between federal and state offices. expressly See, e.g., Ariz. Const. art. 4, pt. 2, § 4 (providing that, with certain exceptions, [n]o person holding any public office of profit or trust state, under the shall (providing, authority be with a of member certain the of United the States, or legislature ); exceptions, that of this id. § 5 legislators during their term shall [not] be eligible to hold any other office or be otherwise employed by the state of Arizona or, any county or incorporated city or town thereof ); id. art. 22, § 18 (providing that, [e]xcept during the final year of the term being served, no incumbent of a salaried elective office . . . may offer himself for nomination or election to any salaried local, State or federal office ). ¶29 The legislature has also sometimes interpreted the constitution s use of the term public office as referring only to offices of the state and its political subdivisions. When the constitution was ratified, Article 7, Section 16 directed the legislature, during its first session, to adopt a law providing for the disclosure of all campaign contributions to, and expenditures of . . . candidates for public office. 15 The 1912 statute adopted in response required financial disclosures from candidate[s] for election . . . to any state, county, city, or town office. Rev. Stat. Ariz. Civ. § 3054 (1913). The statute did not mention any disclosures from candidates for federal office. ¶30 Arizona law, however, has sometimes treated members of Congress as holding public office. agree with Petitioners and the Given this backdrop, we amici representatives that Arizona s members of Congress hold public office under § 1(3) and thus are ineligible for service on the IRC. recognizes the evident purpose of § 1(3) This conclusion to prevent self- interested officials from drawing the boundaries of their own electoral districts. Cf. Ariz. Const. art. 4, pt. 2, § 1(15) (directing that places of residence of incumbents or candidates shall not be identified or considered ). ¶31 Our difference interpretation between its Arizona public office. of § 1(3) language and also recognizes § 1(13) s reference the to Although Arizona may exclude members of Congress or other federal officeholders from serving on the IRC, § 1(13) recognizes that the state has no power to disqualify candidates from serving in federal office or offices created by other sovereign entities. See State ex rel. Pickrell v. Senner, 92 Ariz. 243, 246-47, 375 P.2d 728, 729-30 (1962); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 16 (1995); State v. Osborne, 14 Ariz. 185, 207, 125 P. 884, 893-94 (1912) (recognizing power of Congress to fix time for election of representatives contrary to state constitution); Op. Ariz. Att y Gen. I07-011, 2007 WL 4401306 (Dec. 5, 2007) (concluding that §1(13) applies only to Arizona state and local offices given different phrasing in § 1(3) and because state cannot add to qualifications for federal office). D. ¶32 office Our conclusion that members of Congress hold public for purposes of § 1(3) does not, however, whether Bender, a tribal judge, holds a public office. resolve Is a tribal office a public office under § 1(3)? ¶33 Petitioners argue that a tribal judgeship is a public office because the term generally refers to a position in which a person exercises a government s sovereign powers and Indian tribes are sovereign entities. Citing dictionary definitions of public office, the dissent similarly argues that § 1(3) should be construed broadly to include tribal officers. ¶34 These arguments are not persuasive because they seek to interpret public office without considering the context in which it appears within § 1(3) and the way in which this phrase has otherwise been interpreted under Arizona law. As Justice Scalia has observed, it is a fundamental principle of statutory construction (and, indeed, of language itself) that the meaning 17 of a word cannot be determined in isolation, but must be drawn from the context in which it is used. 508 U.S. 129, 132 (1993). The construing our constitution. same Deal v. United States, proposition applies in See Corp. Comm'n v. Pac. Greyhound Lines, 54 Ariz. 159, 170, 94 P.2d 443, 447 (1939) (observing that constitutional provisions must be construed in light of the instrument as a whole ); cf. NLRB v. Federbush Co., 121 F.2d 954, 957 (2nd Cir. 1941) (L. Hand, J.) (noting that [w]ords are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used ). ¶35 Indian tribes are subdivisions of the state. recognized since the not, of course, political Instead, Indian tribes have been ratification of the United States Constitution as having a special sovereign status separate from the federal government and the states. Cf. U.S. Const. art. I, § 8, cl. 3 (granting Congress the power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ). Indian tribes retain attributes of sovereignty over both their members and their territory, to the extent that sovereignty treaty. has not been withdrawn by federal or Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (citation and internal quotation marks omitted). 18 statute ¶36 Consistent with the tribes distinctive status, Arizona s constitution and laws generally do not include tribes within the meaning of the word public. Cf. Ariz. Const. art. 20, § 4 (referring separately to public lands and lands . . . owned or held by . . . Indian tribes ). supra ¶¶ 23-29, Arizona s constitution As noted above, see and statutes refer in many places to public office or public officers (for example, in provisions governing recall or financial disclosure), but none of those offices. provisions has been construed to embrace tribal Indeed, at oral argument, counsel could not identify any instance in Arizona law in which the word public has been interpreted to refer to Indian tribes. ¶37 Petitioners and the congressional amici also contend that a tribal judge is a public officer under the test adopted in Winsor v. Hunt, 29 Ariz. 504, 520-21, 243 P. 407, 413 (1926). Winsor concerned a constitutional prohibition on state legislators being appointed or elected during their term to any civil office of profit under this State created during their term. (This provision was later replaced by a 1938 amendment adopting the language now in Article 4, Part 2, Section 5.) Court concluded that the prohibition officers but not mere employees. applied to The public Winsor, 29 Ariz. at 517, 243 P. at 412. ¶38 Recognizing that [t]here is no entirely satisfactory 19 definition of public office, id. at 518, 243 P. at 412, the Court in Winsor said a position is presumably an office, rather than employment, if (1) the specific position is created by law, (2) there are definite duties imposed by law on the incumbent, and (3) the duties involve the exercise of some portion of the sovereign power. ¶39 Id. at 520-21, 243 P. at 413. Winsor is inapposite. It construed a since-replaced constitutional provision and did not purport to adopt a general definition of public office. not concern whether an But most importantly, Winsor did individual held a public position (Winsor indisputably worked for the state), but instead whether the person was an officer rather than an employee. do not question Winsor s criteria for Although we identifying when a position created by state law qualifies as an office of profit under this State, or that those criteria might provide useful guidance in other contexts, cf. McCarthy v. State ex rel. Harless, 55 Ariz. 328, 336, 101 P.2d 449, 452 (1940) (observing that position on a county welfare board was an office under Winsor in construing statute concerning eligibility to serve as county supervisor), we decline to use them to define public office for purposes of § 1(3). ¶40 In arguing includes tribal that judges, public office Petitioners also as used contend in § 1(3) that Indian tribes are communities of interest affected by redistricting 20 and that allowing tribal officers to serve as commissioners would undermine the goals of promoting impartiality and public confidence in the redistricting process. not compelling. These arguments are Section 1(3) does not exclude persons from service as commissioners merely because they may be associated with some group Indeed, § 1(3) regarded as characterized does not as exclude potentially a community of many persons who interested or interest. might biased in be the redistricting process, such as relatives or staff members of incumbents or prospective candidates. ¶41 Moreover, Commission will we are carefully confident that exercise its the Appointment constitutional responsibility to identify nominees who are committed to serving in an honest, upholding independent public confidence redistricting process. Here, there is and no in impartial the fashion integrity and of to the Ariz. Const. art. 4, pt. 2, § 1(3). reason to question the Appointment Commission s conclusion that Bender, despite his service as a tribal judge, could serve impartially and uphold public confidence in the integrity of the process. ¶42 Before § 1(3) was adopted, the Arizona Constitution had referred to public office or public officers in a half dozen places, none of which was ever construed to include tribal officers. As noted above, no legal authority identified by the 21 parties or this Court has interpreted a state law referring to public office as including tribal offices absent a specific statutory reference to Indians or tribes. construe § 1(3) constitute phrase unique public declined public a to including and office. construe office requires. as more tribal unprecedented Since provisions broadly For this Court to offices interpretation statehood, restricting than the would thus of the Court has eligibility for this constitution s text See Steeves v. Wilson, 14 Ariz. 288, 290, 127 P. 717, 717-18 (1912) (concluding that although Article 7, Section 15 requires office holders to be qualified electors, it does not require that they vote at election held to fill the office). We decline to do so again today. ¶43 Because § 1(3) contains no language indicating that its proscription on commissioners holding other public office extends to Indian tribes, we hold that the position of tribal judge is not a public office for purposes of § 1(3). IV. ¶44 granted For the reasons stated, we accepted jurisdiction and relief in part. Because Schnepf and Sossaman are ineligible to serve as commissioners, we ordered the Appointment Commission promptly to identify two alternative nominees so that Adams could appoint the initial commissioner from a pool of twenty-five qualified nominees. Petitioners request for relief 22 was denied as to Bender because his position as a tribal judge does not render him ineligible to serve as a commissioner. _____________________________________ W. Scott Bales, Justice CONCURRING: _____________________________________ Andrew D. Hurwitz, Vice Chief Justice _____________________________________ Michael D. Ryan, Justice (Retired) B R U T I N E L, Justice, dissenting in part ¶45 I concur with the majority s result concerning Schnepf and Sossaman, but respectfully dissent from its analysis of the phrase any other public office as used in Article 4, Part 2, § 1(3) of the Arizona Constitution, as well as its analysis of Professor Bender s straightforward eligibility reading of for the service on constitutional the IRC. provisions A at issue reveals a clear, unambiguous intent to broadly curtail the influence of the politically entrenched and politically ambitious on that Commission s work and decisions. See Carrow Co. v. Lusby, 167 Ariz. 18, 20-21, 804 P.2d 747, 749-50 (1990) (in interpreting a law, court examines its language and considers underlying policy and the evil it was designed to 23 remedy ). In my view, the majority s limited application of the term public office could undermine that intent and fails to yield an easily understood, workable standard. Moreover, its construction has the unacceptable practical effect of replacing the word any in § 1(3) with the word some, a reading inconsistent with that provision s actual, broad language. See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 407-08 ¶¶ 1819, 111 P.3d 1003, 1007-08 (2005) (finding broadly worded constitutional provision did not support narrow construction); see also Backus v. State, 220 Ariz. 101, 106 ¶ 22, 203 P.3d 499, 504 (2009) (declining to engraft term not included in statute). ¶46 In promoting the proposed constitutional amendment to establish the membership of the IRC, proponents of Proposition 106 said it would create an independent commission of balanced appointments to oversee the mapping of fair and competitive congressional and legislative districts, Ariz. Sec y of State 2000 Publicity Pamphlet 60 (2000). To further that objective, the broadest possible restrictions were placed on potentially interested parties. candidate for any No person on the IRC may hold or be a other public preceding appointment. § 1(3). service, are IRC members office further three years barred from seeking any § 1(13). As the majority recognizes, see supra, ¶¶ 20, 31, and 24 the And at the conclusion of their Arizona public office for three years. ¶47 in as the Arizona Attorney General s Office has opined, these are not symmetrical restrictions. See 2007 Op. Ariz. Att y Gen. I07-011, 2007 WL 4401306 (Dec. 5, 2007) (noting difference in language between §§ 1(3) and 1(13), and concluding that latter provision covers only Arizona public offices (state or local), but not federal offices because the State cannot add to the qualifications for federal office ). The eligibility restriction in § 1(3) for appointment to the IRC is broader than the post-service restriction in § 1(13) because the state has the power to impose the former. See Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1004 (1958) (Arizona Constitution may prescribe exclusive, controlling qualifications for state officials). ¶48 Conversely, Arizona may exercise significantly less authority over the prospective actions of former IRC members, and none at all over other sovereign entities. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995); Pickrell v. Senner, 92 Ariz. 243, 246, 375 P.2d 728, 729 (1962). limitations would impermissibly infringe on those Such entities sovereign ability to define their own qualifications for public office.1 1 A significant portion of the majority opinion is devoted to deciding whether a member of Congress is a public officer under the Arizona Constitution. That question, while no doubt important, is not before this Court. But given the breadth of 25 ¶49 Reading §§ 1(3) and 1(13) together, the specific limitation in § 1(13) on a former member s seeking an Arizona public office is not intended to limit the applicability of the general § 1(3). disqualification of any public office holder in See State Comp. Fund v. Superior Court (EnerGCorp, Inc.), 190 Ariz. 371, 375, 948 P.2d 499, 503 (App. 1997) ( The provision of one exemption in a statute implicitly denies the existence of other unstated exemptions. ) (citing State v. Roscoe, 185 Ariz. 68, 71, 912 P.2d 1297, 1300 (1996) ( [T]he expression of one or more items of a class indicates an intent to exclude all elements of the same expressed. )). If possible, therefore, office be given meaning should a class the which are phrase consistent not public with the unqualified terms used in § 1(3) to determine who exactly is ineligible to serve on the IRC. ¶50 As noted, § 1(3) broadly disqualifies persons who have, in the last three years, held or been a candidate for any other public office. for a tribal position.2 There is no express or implied exemption On the contrary, a perusal of legal and the phrase any other public office in § 1(3), it clearly would encompass members of Congress and render them ineligible for service on the IRC. 2 Accordingly, I disagree with the majority s position that the exclusion of school board members from the ambit of this provision provides guidance as to its meaning. See supra, ¶ 11. The exclusion of school board members from this provision 26 general dictionary definitions confirms that public office includes the office of any government and is not limited to a specific type of sovereign. See Brewer v. Burns, 222 Ariz. 234, 239-40 671, ¶ 27, 213 P.3d 676-77 (2009) (consulting dictionaries to determine ordinary usage of terms). General use dictionaries define public officer as a person who has been legally elected governmental or appointed to functions. office Merriam and who Webster s exercises Collegiate Dictionary Eleventh Edition 1006 (2003); accord Webster s 9th New Collegiate Dictionary 952 (1983). similarly occupant defines has public legal office authority to Black s Law Dictionary as exercise sovereign powers for a fixed period. 1348 (9th ed. 2008). [a] position a whose government s Black s Law Dictionary It further defines public as [r]elating or belonging to an entire community, state, or nation, and public official as [o]ne who holds or is invested with a public office; a person elected or appointed to carry out some portion of the government s sovereign powers. terms do not contain any express or implied Because these exclusions for merely suggests that any . . . public office means just that any public office. Moreover, the drafters choice to expressly exclude a specific office tends to support a broad construction of the phrase public office. In any event, the text does not contain any other express limitations on the term, and we should decline to limit it any further. See State Comp. Fund, 190 Ariz. at 375, 948 P.2d at 503. 27 officers of Indian tribes, we should afford the phrase any other public office its unqualified, broad meaning. ¶51 Giving the term public office the broad construction that § 1(3) suggests, I would conclude that Bender, as chief justice of two tribal courts, holds public office. At oral argument, amicus Valley Citizens League s counsel (advocating for Professor Bender s eligibility) expressly stated that Bender is a public officer of the respective tribes he serves. The constitutions and bylaws of both the San Carlos Apache and Fort McDowell Yavapai tribes support this acknowledgement, expressly delegating the judicial authority of their respective nations to their judiciaries. powers of sovereign. a tribal And it is indisputable that the judicial nation are governmental powers of a See 25 U.S.C. § 3631 (2006) (recognizing inherent sovereign authority of each tribal government s judiciary); Penn v. United States, 335 F.3d 786, 789 (8th Cir 2003) ( [A] tribal court judge is entitled to the same absolute judicial immunity that shields state and federal court judges. ). As a judge, therefore, Bender exercises a portion of the governing power of these two sovereigns, making him a public official of these tribes.3 3 In response to a question in the IRC application that asked about elected or appointed offices the applicant had held, Professor Bender described his tribal judge positions with two Indian nations and said his judicial role was essentially the 28 ¶52 Appropriately, the majority looks to the constitution and Arizona statutes to determine if the term public office has a particularized, consistent meaning under Arizona law and concludes that understandably, it does the not. See majority supra, declines ¶¶ 28-30. to simply Also adopt a definition used elsewhere in Arizona law to construe § 1(3), noting that rejects any office has throughout interpreted public Arizona law. applicable or not been But relevant the consistently majority then derived from principles Winsor v. Hunt, 29 Ariz. 504, 243 P. 407 (1926), which provides a logical framework different context. for analyzing the issue, albeit in a Cf. Inquiry Concerning Complaint of Judicial Standards Comm'n v. Not Afraid, 245 P.3d 1116, 1119 (Mont. 2010) (using definition similar to Winsor analysis to determine whether tribal judge was a public officer). ¶53 the The majority s unwillingness to adopt a definition of term public office eligibility for service. skews its analysis of Bender s Without a definition, the majority correctly attempts to look to the context in which the term public office appears. is constitutional silence. The See supra, ¶ 20. context majority appears cites only to a be But what it claims mere section constitutional of the Arizona same as the role of federal judges with respect to the federal government. 29 Constitution Indian that lands. refers See separately supra, ¶ 38. to public Article 20, lands and Section 4, however disclaims the people s right to appropriate as personal property any ungranted public lands within the border of the state and lands granted specifically to Indian tribes.4 This provision does not appear to support the general proposition that Indian tribes are Moreover, even if it public, this would not considered clearly not be part separated binding on of Indian our the public. tribes from interpretation, particularly in light of the unqualified language in § 1(3) and the intent to broadly restrict political manipulation of the redistricting process. See Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (explaining that the presumption that identical words in the same statute have the same meaning gives way when the context reflects they were employed with different intent). 4 Article 20, § 4 states in its entirety: The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that, until the title of such Indian or Indian tribes shall have been extinguished, the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States. 30 a ¶54 The majority also points out that Arizona s constitution and statutes refer in many places to public office or public officers . . . but none of those provisions has been construed to embrace tribal offices. although correct, is neither Supra, ¶ 38. surprising nor That point, helpful to the majority inasmuch as the issue presented here has never been raised or decided before. authority, giving the Absent any controlling or pertinent unqualified phrase any other public office in § 1(3) a fair and rational interpretation, so as to include within its broad sweep tribal offices, is no more unique and unprecedented than the majority s contrary holding, particularly considering the overarching purpose of Proposition 106. See supra, ¶ 42. ¶55 In short, the majority s observation provides no constitutional or statutory support for excluding tribal offices from the broad category of public office. In fact, the same absence them of authority supports including within this category because no law or case has expressly excluded tribal officers. affords The most logical reading of constitutional language a broad meaning to broad words unless expressly narrowed, not a narrow meaning unless expressly broadened.5 See 5 Although I agree with the majority that this Court declines to construe restrictions on public office more broadly than the text supports, see Steeves v. Wilson, 14 Ariz. 288, 290, 127 P. 717, 31 State ex rel. La Prade v. Cox, 43 Ariz. 174, 177-78, 30 P.2d 825, 826-27 (1934) ( [B]ecause constitutions are for the purpose of laying down broad general principles, and not the expression of minute details liberally, for of the law, purpose their of terms giving are effect to to be construed the general meaning and spirit of the instrument . . . . ). ¶56 much Moreover, this Court should be hesitant to infer too from tribes. Arizona law failing to expressly refer to Indian Because states have limited authority to bind tribes, see Ramah Navajo Sch. Bd. v. Bureau of Rev. of New Mexico, 458 U.S. 832 (1982), it is unsurprising that our laws contain few references to tribes. This relative silence makes apparent what is obviously true about Indian tribes: the State of Arizona does not have the authority to govern them as it does its own political subdivisions. ¶57 Section surrounding 1(3) subsections is framed very that suggest a broadly, qualified or has no limiting construction, and, as a constitutional provision enacted through voter initiative, has no instructive legislative history. Accordingly, it should be given the broad meaning the language dictates. ¶58 Like the majority, and as the Commission on Appellate 718 (1912), here the text supports and, in fact, demands a broad restriction. 32 Court Appointments implicitly determined, I have no doubt that Professor Bender would exercise a position on the IRC in an honest, independent and impartial fashion and would uphold[] public confidence process. the integrity of the Ariz. Const. art. 4, pt. 2, § 1(3). the issue. Sossaman in redistricting But that is not I am similarly convinced that Mr. Schnepf and Mr. would exercise their honestly, and diligently. duties equally professionally, But our constitution categorically excludes certain people from service on the IRC. Regardless of our of convictions about the sincerity and merit any given candidate, our duty is to give effect to the constitution as written. phrase Because any other the more public reasonable office in interpretation § 1(3) includes of the tribal officers (as well as many other government posts, regardless of the employing sovereign), I respectfully dissent from the portion of the majority opinion that concludes otherwise. _____________________________________ Robert M. Brutinel, Justice CONCURRING: ____________________________________ A. John Pelander, Justice 33
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
