Steve May v Hon. Colleen A. McNally, et al

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FILED OCT 112002 CLERKSUP~aE NOEL K.DESSAiNT COURT SUPREME COURT OF ARIZONA En Banc ) STEVE MAY, -~ Arizona Supreme Court No. CV-02 0215-PR Petitioner,) v. ) HON. COLLEEN A. McNALLY, Judge .) of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the) County of Maricopa, ) Respondent Judge,) BETSEY BAYLESS, as Secretary of the State of Arizona, acting in her official capacity; CAROL SPRINGER, as Treasurer of the State of Arizona, acting in her official capacity; and the CITIZENS CLEAN ELECTIONS COMMISSION; and ARIZONANS FOR CLEAN ELECTIONS, ) Court of Appeals Division One No. 1 CA-SA 02-0073 Maricopa County Superior Court No. CV 2001 006078 0 P I N I 0 N 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 by Clint Bolick and Timothy D. Keller Thomas P. Liddy Attorneys for Petitioner Phoenix 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 by Timothy N. Hogan and THE BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW by Elizabeth Daniel Attorneys for Real Party in Interest Arizonans for Clean Elections Phoenix New York, NY PACIFIC LEGAL FOUNDATION Sacramento, CA by Deborah J. La Fetra Attorneys for Arnicus 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 the Constitutions, U.S. and Arizona . . . promote freedom of speech under 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. provides Stat. ( A.R.S. ) § 16 940(A) public financing for the candidates for certain elected offices. (Supp. 2001). (Supp. campaigns 2001). of The Act qualifying See id. §~16 940 to 961 This case presents a challenge to the Act s key funding provision. The Act created the Citizens Clean Election Commission 2 ( 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: to the fund, voluntary contributions 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. 16 944, 16 954(A) (C). Id. §~ 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 candidates whom they might not otherwise support. of political 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 Nay 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. No. CIV 99-1627 CD. Ariz. Mar. 13, 2001). 3 See .Lavis v. .Bayless, He then filed his action 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. (Mar. May v. Bayless, No. CV 2001-006078 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) We stayed the court of appeals opinion and granted review ¶6 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 Court s opinion in Buckley v. Valeo, United States 424 U.S. 1, 92 93 Supreme (1976), which recognized that government may properly use public funds to 4 establish a system of campaign financing.1 considered, among other issues, the Presidential Election Campaign Fund, In Buckley, the Court constitutionality of the 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-fordollar allocation out presidential candidates. ¶8 of the general fund to qualifying Id. at 86-87. 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 check offs]. Id. at 91. [by the number of 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- of f is simply the means by which Congress determines the amount of ~ts appropriation. the taxpayers candidates the Id. at 91 ri.l24. The Court was not moved by objection to the potential use of the funds for taxpayers opposed. It noted that every congressional appropriation uses public money in a manner to which some taxpayers object. Id. at 92. 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) 1 5 The Court determined that the check-off provision of the ¶9 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. Accordingly, the Court concluded, campaigns furthers, values. Buckley thus public funding of presidential abridges, pertinent First Amendment Id. at 93. ¶10 not Id. at 92 93. financing of political affirms the proposition that the public 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 Nay 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 germane to the group s purpose. speech is Nay urges that the Abood line of 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. 2 6 cases should guide our inquiry. In Abood v. ¶12 (1977), charge Detroit Board of Education, 431 U.S. 209 non union schoolteachers were required to pay a service to the teachers several purposes, union. including The union used the money funding political and ideological activities that some non-union teachers found objectionable. at 212-13. for Id. 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. ¶13 1 Id. at 235 36. Similarly, in Keller v. State Bar of California, 496 U.S. (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 germane to justified. ¶14 the purpose for which compelled association not was Id. at 13. Finally, in United States v. United Foods, Inc., 533 U.S. 405 (2001), the Court invalidated fees charged to mushroom handlers 7 to fund advertisements promoting mushroom sales because the speech was not germane to a larger regulatory purpose of the association. The Abood line of cases instructs that government may not ¶15 condition involuntarily associated receive a benefit or ply their individuals trade opportunity to 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, precondition to employment. nor is payment of the surcharge a 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 Abood Importantly, line association. of cases the is germaneness predicated upon the derived from the existence of an An association is a gathering of people for a common purpose; the persons so joined. 1999). test BLAcK s LAW DICTIONARY 119 (7th ed. 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. oral argument and in his brief that Indeed, May conceded at 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 8 without an association by which to measure the germaneness of the speech, the Abood analysis is inapplicable. Finally, and critically, the speech in Abood, Keller, and ¶17 United Foods~ was viewpoint driven. In all three cases, organization chose the funded speech based on its content. the 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 The Real Parties in Interest urge us instead to apply analysis in Board of Regents v. Southworth, 529 U.S. 217 (2000), in assessing the constitutionality of the Clean Elections Act. In Southworth, a mandatory student fee, student organizations activities. Id. at state university allocated part of a on a viewpoint neutral basis, to various engaged 222-24. To in ideologically qualify expressive for funding, student organizations had to agree to certain accounting requirements and spending limitations. ¶19 The Court acknowledged 9 that once the university conditioned the opportunity to obtain an education on an agreement to support objectionable implicated. Id. at 231. speech, Amendment was But it rejected the germaneness test applied in Abood and Keller as the First unworkable in the context of extracurricular student speech at a university. that the Id. Recognizing university s sole purpose in charging the fee was to facilitate the free and open exchange of ideas by, and among, students, is the Court reasoned that asking what speech germane would be contrary to the very goal the University seeks to pursue. Id. at 229-32. standard of Instead, the Court determined that the principal 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. ¶20 Id. at 230.~ 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 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. 10 at 290. We think otherwise. While a university is certainly one venue in which the free and open exchange of ideas is endouraged, 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. We find the Southworth approach better suited than the ¶21 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: seek to facilitate free speech. Both Moreover, both funding systems protect free speech rights by requiring viewpoint neutrality in the allocation of funds and attenuating the connection between payers of funds and the message communicated. Buckley - speech the The principles of that government may use public funds to finance political 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 Nay counters that the Act is not viewpoint neutral in 11 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 [governmentj uses public money in a manner to which some taxpayers object. state s general 424 U.S. at 92. fund are used to For example, taxes from the pay the salaries of state legislators, some of whom an individual taxpayer might support and others whom the taxpayer might suggest that such payments not support. violate the Yet no one would 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. Southworth s insistence on viewpoint government s method viewpoints being of allocating supported. neutrality funds, Southworth, But focused on the not 529 U.S. the resulting 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 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). 12 thus passes muster under Southworth.5 ¶23 In a final salvo, amicus participant Foundation urges that, while tax dollars . . . Pacific Legal may be spent on expressive activity without violating taxpayers First Amendment rights, the surcharge at issue here is a fee, not a tax, therefore must be analyzed differently. and We conclude, however, that whether the surcharge is a tax or a fee is not dispositive of the issues in this case. imposing Government may no more violate the First Amendment by a tax than it may by imposing a fee. Noreover, we have not discovered any compelled funding case in 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 theassessment 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 ithplicated First Amendment speech and association rights that are not burdened under the Arizona law. In Vermont Society of Association Executives v. Mime, 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. 13 which the outcome turned on whether the assessment was a fee or a tax. Nonetheless, we address the issue briefly. Whether an assessment should be categorized as a tax or ¶24 a fee generally is determined by examining three factors: entity that imposes the assessment; (1) the (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) Juan Cellular Tel. F.2d 683 (1st Co. v. Cir. Pub. Serv. 1992)). assessment here as a tax: All (citing San Comm n of Puerto Rico, three elements reveal 967 the 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. May argues ¶25 that if the surcharge is a tax, it is an unconstitutional special tax requiring strict scrutiny because it is citizens imposed on less and burdens than the (1983), v. population Nay relies on Minneapolis Star and Minnesota Commissioner of Revenue, and Murdock of Arizona the First Amendment rights of a narrowly defined group of taxpayers. Tribune Co. whole v. Pennsylvania, 319 U.S. 460 U.S. 105 (1943), 575 to support his contention that taxes on discrete groups are invalid because of the threat that government will destroy a selected 14 group of taxpayers by burdensome taxation. Minneapolis Star, 460 U.S. at 585. We disagree with May s premise that the surcharge does ¶26 not applyto- 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. taxpayers is at issue No narrow, in the case before us, payers exercising a First Amendment right. discrete group of nor are the fine Minneapolis Star and Murdock are therefore inapposite. The ¶27 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. a particular The clean elections surcharge is not limited to group or industry, but is citizens who pay civil and criminal fines. burden the exercise expressive content of a inherent First assessed against all Nor does the surcharge Amendment right; in paying a traffic there fine. is no 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. 15 CONCLUSION In summary, we hold that the surcharge funding provision ¶28 of the Citizens constitutional. Clean Elections Act, A.R.S. § 16 940(C), is 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. 16

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